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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Most Georgia Cops Have No Eyewitness Guidelines

Despite the fact that the Innocence Project has exonerated six men in Georgia who were wrongfully convicted as a result of faulty eyewitness evidence, the majority of Georgia law enforcement agencies still lack even basic written guidelines for the collection of eyewitness evidence. A recent report found that 83% of the 296 Georgia law enforcement agencies surveyed have no specific guidelines to standardize eyewitness procedures.

In the past legislative session, the GA House of Representatives launched a study aimed at improving police procedures for the collection of eyewitness evidence, acknowledging the importance of reliable police practices in preventing wrongful convictions.

State lawmakers are considering legislation to tighten eyewitness guidelines on the heels of several high-profile cases in Georgia, and elsewhere across the country, where prisoners have been cleared by DNA evidence. Of the 205 people exonerated by post-conviction DNA evidence in the United States, 75 percent involved faulty eyewitness identification. Six of those were in Georgia.

Hearings began this morning, and will continue through mid-November (schedule here (PDF)). From the Georgia Innocence Project:

Presenters during the series of hearings include: Calvin Johnson, DNA Exoneree and Georgia Innocence Project Chairman-Elect (all six Georgia exonerees are invited to the first hearing); Barry Scheck, Co-Founder of the Innocence Project (New York), Aimee Maxwell, Executive Director of the Georgia Innocence Project, Jennifer Thompson Canino, victim in a rape case involving mistaken identification, Jeff Brickman, former DeKalb District Attorney involved in a wrongful conviction case, John Bankhead, Georgia Bureau of Investigation, Butch Beach, Georgia Public Safety Training Council (see attached schedule for list of all presenters). The House Study Committee is chaired by : Rep. Stephanie Stuckey Benfield from DeKalb County.

The legislative effort to bring about more reliable police procedures has also brought the spotlight back to Troy Davis, who still sits on Georgia's death row:

Most recently, questions about eyewitness identification have cast doubt on the conviction of Georgia death row inmate Troy Davis, who was found guilty of killing a police officer. He is awaiting a hearing before the Georgia Supreme Court. Davis' lawyers are asking for a new trial because they say several witnesses who initially testified against their client have since recanted or contradicted their testimony.

Rep. Stephanie Stuckey Benfield fought to pass an eyewitness ID reform bill last year, but prosecutors inexplicably opposed the bill -- the express purpose of which was to make law enforcement practices more accurate -- and managed to kill it. Benfield has another shot this session, and led the study committee at the outset of the hearings this morning in Atlanta.

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New Lineup Rules Pass in NC

With the passage of the Eyewitness Identification Reform Act earlier this week, police across North Carolina are now required to adhere to certain best practices with respect to lineup procedures, which have been shown to reduce the likelihood that innocent people will be identified from a lineup.

The reform measures include "blind" administration of lineups, where someone not connected to the case who doesn't know which person is the suspect will be required to conduct the lineup, to prevent that person's knowledge from sending inadvertent cues to the witness. Lineups must also be conducted sequentially (one photo at a time) as opposed to simultaneously, which has been shown to reduce the problem of "relative judgments," where witnesses have been observed to pick the person who looks "most like" the culprit from the group, even when, in many cases, that person is innocent. Sequential presentation of lineup members has been shown to reduce guessing in general, which is thought to be a primary cause of eyewitness-related wrongful conviction.

Under the new legislation, lineup administrators in North Carolina will also be required to take confidence statements from witnesses, in their own words, immediately following an ID. Administrators are also prohibited from giving any feedback or making comments of any kind prior to recording that confidence statement, in order to reduce the likelihood that the witness's confidence will be distorted by intervening influences.

Lineups in North Carolina must also be videotaped whenever practical, and when not, an explanation must be documented, in addition to rigorous detail relating to the lineup procedure itself, including retention of the photographs themselves in photo lineups, the source of the photos, the identities of the individuals, and any words used by the witness to describe an identification.

Remedies for noncompliance include, at the court's discretion, suppression of ID evidence at trial, as well as jury instructions on the effect of noncompliance on the reliability of identification evidence.

The findings of the General Assembly are also interesting:

(1) Throughout the nation and in North Carolina innocent people have been accused or convicted of serious crimes because of mistaken eyewitness identification.

(2) Mistaken lineup identifications distract law enforcement agencies from apprehending perpetrators.

(3) Reports of the United States Department of Justice, the American Bar Association, 25 years of peer‑reviewed scientific research, and the experiences of practitioners across the country indicate that the accuracy of eyewitness identification can be greatly enhanced by the use of "blind" administrators, instructions to the witness, confidence statements, and the proper composition of lineups.

The text of the bill is here. More media coverage here.

As North Carolina joins the growing list of states adopting similar legislation, it is becoming increasingly clear that lawmakers are running out of patience for remedying the wrongful conviction problem. Let's hope states like Georgia will be quick to follow suit, despite Georgia and other states' prosecutors' continued resistance to practical measures that are demonstrated to reduce the conviction of innocents.

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Troy Davis Case Spotlights Eyewitness Fallibility, Drives Georgia Reform Effort

The Atlanta Journal-Constitution has a story today on the fallibility of eyewitness testimony, in connection with the ongoing Troy Davis case. The article highlights the systemic problem of wrongful convictions resulting from faulty eyewitness testimony, including all six DNA exonerations in Georgia over the last eight years, all of which resulted from inaccurate eyewitness evidence.

To explore the laundry list of problems with the eyewitness evidence in Mr. Davis' case, the defense team hired cognitive psychologist and eyewitness expert Dr. Jeffrey Neuschatz. Needless to say, he "found numerous concerns with the identification of Davis as the man who fatally shot Officer Mark Allen MacPhail in a Burger King parking lot on a summer night in Savannah."

Whether or not Neuschatz's analysis will be enough to sway the Board of Pardons and Paroles to permanently stay Mr. Davis' death sentence remains an open question.

Neuschatz's report has been filed with both the parole board and in Davis' court appeals for a new trial. Neuschatz analyzed the eyewitness identifications using contemporary standards to determine if there were flaws in the procedures used to implicate Davis.

Among other factors, Neuschatz highlighted issues present in the Davis case relating to the "mugshot effect (PDF) and the "weapon-focus" effect:

Neuschatz concluded that one witness, Dorothy Lee Ferrell, told police she had seen Davis' picture on the news as a suspect in MacPhail's slaying. "Prior exposure to the suspect's picture increases the likelihood that the suspect will be picked out of the lineup," Neuschatz wrote.

Neuschatz also made other observations, including: When a weapon is involved in a crime, witnesses tend to focus on it, rather than the suspect; the passage of time, in many cases 10 days, between the crime and the identification of Davis. Another witness testified that he had been drinking on the night of the shooting.

The Davis case has also given momentum to an ongoing effort to reform police procedures in Georgia relating to the collection of eyewitness evidence. Following the sixth DNA exoneration in Georgia earlier this year, by which Willie Williams was released from prison after serving 21 years for a rape he didn't commit, state Rep. Stephanie Stuckey Benfield (D-Atlanta) attempted to get a bill passed that would have required Georgia police to use procedures that have been demonstrated to make eyewitness evidence more reliable. Predictably, prosecutors fought the legislation, and for now, managed to win the day.

Despite the legislative loss, House Speaker Glenn Richardson supports the reforms, and appointed Rep. Benfield to chair a committee to investigate the connection between flawed police identification procedures and the systemic wrongful conviction problem in the state. Hearings are scheduled for the fall, where Barry Scheck of the Innocence Project, among others, is expected to testify.

The Georgia Innocence Project, which has played a role in three of the state's exonerations, is promoting lineup standards.

"In all six of those [Georgia] cases, the victims, and sometimes witnesses as well, incorrectly identified the attackers," said Lisa George, spokeswoman for the project. "It's not that these victims or witnesses were lying; it's just that they got it wrong. Human memory is extremely fallible."

Predictably, Rick Malone, executive director of the Prosecuting Attorneys' Council of Georgia, said "prosecutors don't object to better standards for lineups, but they don't want them codified into state law." In other words, Georgia prosecutors support preventing the conviction of innocent people in theory, just not in practice.

Fortunately, cases like those of Mr. Davis and Mr. Williams are driving the effort to reform police procedures that are unmistakably linked to mistaken eyewitness testimony, and inform those procedures with well-settled scientific findings that reveal a better, more reliable methodology that is less likely to distort the memories of well-meaning witnesses. It's time for Georgia prosecutors to catch up, and stop standing in the way of efforts to keep innocent people out of prison.

In related news, check out Emory Law School's new project to Save Troy Davis, sponsored by their Indigent Criminal Defense Clinic.

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Three California Wrongful Conviction Bills Advance

The California Assembly Public Safety Committee cleared three bills yesterday targeted at reducing wrongful convictions, which we reported on earlier in the process. One is aimed at curbing false confessions by way of mandatory recording of confessions, the second requires corroborating evidence for jailhouse snitches, and the last is an eyewitness ID bill that would required the California attorney general and others to devise a set of guidelines for conducting lineups.

Governor Schwarzenegger vetoed similar bills last year, but the bills have reportedly been modified this session to accommodate Arnold's concerns. Hopefully we'll see a better result this year, and the Governor will show his commitment to reducing wrongful convictions in California.

Here's the text of the bill in PDF.

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Texas ID Reform Bill Dies in Committee

As reported by Scott Henson at Grits for Breakfast:

Despite the rash of exonerations of innocent people serving long sentences in Texas prisons, the 80th Texas Legislature is about to close seven days from now having passed virtually no legislation to address the problem, and indeed possibly having passed several bills that make it more likely that innocent people will be convicted.

That's why I was sad to see SB 799 by Ellis died in the Calendars committee last night - the bill would have created a study group to develop best practices for eyewitness identification. That said, the folks on the study group may not have been the best people to develop these best practices, anyway (in particular the TCLEOSE director and Police Chiefs Association President's participation would have made the group pretty politicized).

An unfortunate turn, but as Henson points out, legislation is not the only solution:

Texas doesn't need to wait for legislation to study this issue and develop recommendations. Police could rely on the work of other states like California which developed reform recommendations for lineup procedures last year. And at the capitol, one of the Texas legislative committees concerned with criminal justice should make the issue the subject of an "interim study," or a topic the standing committees research in-depth in between regular legislative sessions.

Finally:

Wherever or however it happens, the failure of SB 799 and SB 263 (Texas' Innocence Commission legislation) to pass should not end the discussion of how to prevent more wrongful convictions in Texas. It's my hope, in fact, that these bills' death serves to launch that discussion at the Texas Legislature in a serious way.

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California Panel Pushes for ID Reform (Again)

The San Jose Mercury News is reporting this morning that a panel of justice experts has convened again to pressure the state to adopt a collection of reforms aimed at reducing wrongful convictions. The panel, formally known as the California Commission on the Fair Administration of Justice, includes at least one defense attorney (who is also a law prof), and a former AG.

Last year, the same panel convened to push the same reforms, one of which being a bill to revamp police lineup procedures to reduce false identifications. The reforms met with widespread support -- "virtual unanimity" -- among prosecutors, defense attorneys, and victims-rights advocates. The bills (also including recorded interrogations, and a requirement that jailhouse snitch testimony be corroborated (!)) appeared to be winning propositions for everyone with an interest. Innocent people would be less likely to end up in prison. Victims and prosecutors would be more likely to nail the right guy. Defense lawyers would be less likely to face cases involving irreparably bad ID procedures that are notoriously insurmountable in court.

Last year, the bills were approved by the California Legislature, but vetoed by the governor with some inexplicable language about how the bills "denie[d] the public and their elected representatives the chance to approve or deny a statewide policy that could have a life-altering impact on an individual participating in our justice system." Curiously, the bills appeared to be aimed at doing just the opposite -- namely empowering the public and their elected representatives to approve exactly such a statewide police, with exactly such a life-altering impact on the innocent people who come in contact with the justice system.

Will Arnold put the doublespeak aside and "governate" for a change? We'll be keeping watch. Here's the bill in PDF.

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Lineup Reform in Texas

Add Texas to the growing list of states where police lineup reform has made its way to the legislature. Texas's lineup reform bill, SB 799 (PDF), is scheduled for a public hearing today.

According to Texas blogger Scott Henson over at Grits for Breakfast, Dallas County leads the nation in post-conviction DNA exonerations. In a state ripe for reform, this bill would require:

The office of the attorney general, in consultation with state and local law enforcement agencies and scientific experts in witness memory, shall develop, adopt, and disseminate to all state and local law enforcement agencies in this state comprehensive written policies and procedures and associated training materials regarding the administration of photograph and live lineup identification procedures . . .

Beyond this general mandate, the bill goes into some detail in key areas. It would require that detailed instructions be given to witnesses prior to any lineup procedure, including the critical instruction that the perpetrator might or might not be present. It would also be conducted in double-blind format, where the administrator is a "neutral" party who is not aware of the identity of the suspect, "where practicable." Where not practicable, however, the bill provides detailed guidance on the next-best procedure. In addition to requiring that an explanation be given for the reason the procedure was not conducted in double-blind format, the administrator must use an alternative method that prevents him or her from being aware of which lineup member is being viewed at a given time -- either through the use of computer software, the "folder method," or "another method designed to achieve a neutral administration of the procedure."

This is a well-drafted bill that explicitly hits the core best practices -- in addition to the above, it requires that a detailed confidence statement be taken from a witness in her own words, immediately following an ID, it prohibits lineups including more than one suspect, prohibits commentary or feedback by the administrator during or after the procedure, and even prevents anyone familiar with the identity of the suspect from being present during the procedure. It also goes into some detail regarding the importance of not making the suspect stand out, matching up features from the original witness description, includes a requirement for detailed documentation relating to the procedure, whether or not an ID is made, and other good stuff.

Check out the bill here. We'll be following this one as it makes its way through the TX Senate.


UPDATE: It turns out that James Curtis Giles, expected to be the 13th DNA exoneree from Dallas County, will be appearing today with Barry Scheck at the state capitol in Austin, to speak at senate hearings in support of the eyewitness bill and other innocence-protection legislation on the agenda. More on Mr. Giles hopeful exoneration at the Dallas Morning News. The Texas Court of Criminal Appeals must still give its approval before the exoneration is final, but all signs point in the right direction.

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West Virginia Leads The Way On ID Reform

In earlier posts, we've discussed the West Virginia Eyewitness Reform bill. That bill is now a law. Musical version here.

A few things changed in the legislative process. As Ben noted in his February post, earlier forms of the bill mandated specific procedural reforms. The final version contains a few specific directions; it tells police to provide three important instructions to witnesses before conducting a lineup or photo array (the culprit might or might not be present, that the witness is not required to make an identification, and that it is just as important to exclude innocent people as to identify the culprit) and requires police to keep a written record of all lineups and photo arrays. Other than that, however, further work is left to a task force, whose mandate is to develop guidelines "that are consistent with the reliable evidence supporting best practices."

It will be interesting to see what the new task force proposes. Its report is due in December of 2008. In the meantime, congratulations to West Virginia for helping to lead the way on this important reform issue.

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West Virginia and Maryland ID Reform Bills Pass Senate Committees Today

Big news on the legislative front today -- eyewitness identification reform bills passed committees in the state senates of both West Virginia and Maryland today. In West Virginia, Senate Bill 82 passed the Senate Judiciary Committee this morning despite substantial resistance from law enforcement, and Maryland's Senate Bill 157 passed the Senate Judicial Proceedings Committee today as well.

West Virginia's bill plots out best practices in detail, following DOJ Guidelines for lineup procedures, and also expressing a strong preference for sequential lineups "wherever practicable." The bill also acknowledges the danger of the nonblind sequential procedure -- namely that any cues by the administrator take on even greater force when a witness is only viewing a single suspect -- by requiring that any procedure that "for any reason" is not conducted by a blind administrator must be done simultaneously.

Maryland's bill takes a different approach, requiring that each law enforcement agency within the state adopt a set of written guidelines on the administration of lineup procedures, in compliance with the best practices set forth by DOJ.

Meanwhile, New Mexico's bill continues to percolate through the House...

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New Mexico Eyewitness ID Reform Bill Passes House Judiciary

New Mexico's House Bill 295, the Reliable Eyewitness ID Act, passed out of the House Judiciary Committee last night with a vote of 7-5. The bill now moves on to the House floor. An identical bill made its way through the Senate earlier this month, and reached the House with some minor amendments.

The bill is modeled after the DOJ best practices (PDF) on eyewitness identification procedures, but nevertheless has met fierce resistance from law enforcement throughout the legislative process.

Some key provisions of the bill:

1. Prior to viewing a lineup, a witness must be instructed that the suspect may or may not be in the lineup


2. The administrator of a lineup must not know the identity of the suspect


3. A confidence statement must be recorded immediately following any identification


4. The lineup administrator must not give any feedback on the "correctness" of any identification


5. All lineup procedures must be recorded, with both audio and video, including any "remarks" or other commentary made by anyone involved

This is a great bill that incorporates most of the scientifically validated best practices, and has real potential to dramatically reduce wrongful convictions in New Mexico. We will continue to follow it closely as it moves through the legislative process.

Some further reading:

• Wells/Olson study (PDF) showing the importance of the "might or might not be present" instruction (reducing false IDs by as much as 41.6%)


• Wells et al. Recommendations for Lineups and Photospreads (PDF), tying best practices to the latest social science, including the importance of the double-blind procedure

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