Monday, October 29, 2007

Houston City Council "Should Be Weary of Making Apologies to Innocent People"

According to former Texas appellate judge Michol O'Connor, the time has passed to wonder about what can be done to address Houston's notorious wrongful conviction problem, just as the time has passed to wait for the Houston Police Department to fix the problems on their own. He describes status quo police lineup procedures as "a suspect process" in dire need of reform. Yet despite clear evidence of a simple solution, O'Connor points out, HPD as yet refuses to take the necessary measures:

Repeated studies have shown that the traditional lineup procedures produce mistaken identifications. Despite this, HPD continues to use those very same procedures: live and photo lineups, usually conducted by one of the officers involved in the investigation or the arrest of the suspect.

With blind lineup procedures -- where the person conducting the lineup does not know the identity of the suspect, which is unequivocally supported by everyone who has studied lineup problems -- at the top of his list, O'Connor minces no words:
City Council should force HPD to adopt these procedures

Finally, his frustration with the people with the power to fix the problem is unmistakable:
City leaders should be weary of making apologies to innocent people who were convicted of crimes they did not commit. By requiring HPD to reform its lineup procedures, the city can reduce the risk of wrongful convictions without spending millions of dollars. The Chronicle headline was right: Something needs to be done. Now.

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Monday, October 15, 2007

Schwarzenegger Terminates Legislative Reform Effort in California

Despite our earlier hope, Governor Schwarzenegger again vetoed a bill aimed at reducing wrongful convictions. The bill would have provided an important first step toward making the collection of eyewitness evidence more reliable in California, by simply requiring the Attorney General to devise a set of best practices, in light of substantial research showing that certain procedures make false identifications far less likely to occur.

For the second year in a row, Governor Schwarzenegger has shown that his allegiance to the law enforcement lobby is stronger than his commitment to protecting the innocent and reducing wrongful convictions. As long as Californians call Arnold their governor, it looks like reformists may have to consider an alternate angle on fixing that state's broken system.

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Friday, October 12, 2007

NIJ Acknowledges "Marred" Results of Illinois Pilot Project

The NIJ Journal put out an article this week called "Police Lineups: Making Eyewitness Identification More Reliable," acknowledging the unreliability of eyewitness memory and the role the police procedures play in making it more or less reliable. The article gives some detail on the simultaneous vs. sequential debate, including Nancy Steblay's continuing great work testing the efficacy of double-blind sequential lineups in the field.

Significantly, the NIJ acknowledges that the Illinois pilot project (the infamous "Mecklenburg Report") was fatally flawed. ("The stunning implications of the Illinois Pilot Program have since been marred ... by questions about the methodology used.") Presumably, then, the NIJ will no longer include the results of that junk study in future serious discussions on lineup reform, such as the project being developed for Dallas County. Taxpayers, not to mention the wrongfully accused, can't afford another colossal waste of public resources on an agenda-driven charade like we saw in Illinois.

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Tuesday, October 2, 2007

Georgia Cops Resist Reform, Defend Flawed Status Quo

In the second day of hearings by the Georgia House committee organized to consider a new law mandating that police adhere to well-established best practices when conducting eyewitness lineup procedures, law enforcement officials were out in full force in opposition.

Given the total lack of empirical support for that position, cops are left to rely on baseless claims in defense of the status quo:

Monday, Chief Louis M. Dekmar of LaGrange spoke for the Georgia Association of Chiefs of Police when he said many questions remain about university studies into eyewitness misidentification. For instance, real witnesses are more careful about the consequences of a mistaken identification than students are when they volunteer to participate in an experiment.

"Folks don't just jump out there and make an identification unless they're certain," he said.

Of course, we know the opposite is true from both the scores of wrongful convictions resulting from witnesses doing exactly that, and from numerous studies showing a striking lack of correlation between witness "certainty" and actual accuracy.

Harris County Sheriff Mike Jolley, president of the Georgia Sheriffs Association, told the committee that a single law would prevent witness procedures from continuing to improve when research determines yet a better way to conduct lineups. That's why individual police agencies need the freedom to write their own policies and to update them when needed.

If that concern bore any resemblance to the reality in the state, the argument might carry with it some force. Unfortunately, as we reported recently, most Georgia cops have no eyewitness guidelines to speak of.

The Sherriff went on:
Plus, some county sheriffs' offices only have four deputies, too few to conduct elaborate lineup procedures if required by law, he said.

The "resources" argument falls equally flat, as zero-cost methods (PDF) (see "folder method," p. 10) have been developed, which are the antithesis of "elaborate" and can be implemented with no more than a stack of photographs and manilla folders and a few minutes of training.

The law mandating best practices is needed precisely because Georgia cops have failed to take action to curb the state's wrongful conviction problem on their own. They have known about the problem for long enough to take action, and they have not done so. Hopefully Georgia legislators will see the debate for what it is, and move Georgia police practices into the present day by passing this law.

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Monday, October 1, 2007

Conviction Overturned for Failure to "Seriously Consider" Expert Testimony on Eyewitness Factors

The Illinois Court of Appeals overturned a conviction Friday in People v. Allen (PDF) (update: now on Westlaw at 2007 WL 2821966), for the trial court's "failure to conduct a meaningful inquiry" into proposed expert testimony on eyewitness factors by Dr. Steven Penrod.

Subjects of proffered testimony were to include the effects of stress, weapon focus, cross-race, lack of correlation between witness confidence and accuracy, and police procedures. The appellate court's analysis of those factors is imperfect (for example, the court found that cross-race research would not have applied because the witness was married to an African American, which the research shows to be largely irrelevant).

Nonetheless, the Illinois court was concerned with the fact that the prosecutor had argued effects that conflict with research findings:

The State's comments: "[t]here is no higher degree of attention than someone pointing a gun at you;" "[defendant's] face is burned in her memory forever;" " [tlhere is no doubt she was certain;" and "if she is so certain, there is no reason and no doubt that you should be certain."

That doesn't stop our courts from excluding the same research on the same grounds, but I digress. The court didn't go as far as to say that it was error to exclude the expert testimony, but citing Illinois case law, found that it was error to fail to provide a reasoned basis for its exclusion.
Neither at trial nor in this appeal does the State challenge the reliability of the research cited by Dr. Penrod. Nor did the trial court when it rejected the proposed testimony. The court merely said it did not believe: "experts in this particular case will assist the jury in determining the identification in
this case. I believe it would probably confuse them more and I believe that the
instruction that's provided by the Illinois Pattern Jury Instructions is sufficient."

The appellate court also made some affirmative findings on the question of whether the research is common sense/not beyond the ken, which is helpful in light of the fact that courts most often rely on the claim, however unsupported, that these factors are common sense such that expert testimony would not be helpful. Quoting from another Illinois case:
The research challenges the claim that the jury does not require expert assistance. As the prosecutor understood, reasonable people well might believe an eyewitness will be more accurate when faced with a weapon and when the witness shows
confidence in the accuracy of her identification. The expert testimony "dispels myths or attacks commonsense misconceptions about eyewitness identifications, such as the effects of stress and weapon focus on the accuracy of identifications." Tisdell,
338 Ill. App. 3d at 467. In Tisdell I we said: "Numerous studies in the area of eyewitness psychology indicate there is a significant potential for eyewitness error and that jurors have misconceptions about the abilities of eyewitnesses." Tisdell, 316 Ill. App. 3d at 1157.

In other words, there is something wrong with excluding expert testimony on weapon focus and stress on the grounds that their effects are common sense, but nonetheless allowing prosecutors to argue the opposite of the common sense view, as they do in trial after trial.

Further, the court observed that:
No careful scrutiny took place in this case. Relevance of the different parts of Dr. Penrod's proposed testimony was not seriously considered. Nor their weight. The conclusion that the proposed testimony would confuse the jury had no considered basis. The balancing test requires a weighing of "probative value against its prejudicial effect.".

In other words, this presumably means that hard data will be required in support of future attempts to exclude expert testimony on common sense grounds. Fortunately, all the hard evidence (PDF) is firmly in favor of defendants seeking to get expert testimony in front of jurors.

Because of the trial court's failure to conduct a meaningful inquiry into Dr. Penrod's proposed testimony, under the specific circumstances of this case, we reverse the defendant's convictions and remand this cause for a new trial.

The court could have taken it a step further and held that it was error to exclude the testimony, and further that it was error to allow the prosecutor to make arguments that conflict with what the court held to be common sense, but it's a start.

UPDATE: This case is now available on Westlaw: People v. Allen, --- N.E.2d ----, 2007 WL 2821966 (Ill. App. 1 Dist. 2007).

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