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.

Finally,

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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Dallas, TX: Wrongful Conviction Leader Come Poster Child for Eyewitness Reform, or Illinois All Over Again?

Dallas County, notorious for its status as the county with the worst wrongful conviction record in the country, is now, at least ostensibly, making efforts to remedy this systemic problem. Eleven of the 13 wrongful convictions uncovered by the Innocence Project in Dallas County in the last six years resulted from faulty eyewitness evidence collected through flawed police procedures. Acknowledging that problem, Dallas county is taking part in a $300,000 federally funded study, aimed at identifying the most reliable lineup procedures by way of a pilot program.

State Senator Rodney Ellis, from Houston, has been involved in reform efforts in the state for some time.

"Dallas ought to be a laboratory – a poster child for reform," said state Sen. Rodney Ellis, D-Houston, who unsuccessfully tried to get the state Legislature to set up a working group to come up with a model policy for lineup procedures.

He lauded the department's willingness to get involved: "We all ought to be interested in law and order, but it would certainly be nice to get the right one."

One of the procedural reforms being tested is the "sequential double-blind" method recommended by social scientists who have studied lineup procedures in connection with eyewitness memory.

The starting point of any lineup reform effort should be an across-the-board requirement that all lineups be conducted blindly, as it is well-established across the sciences that people conducting experiments will inadvertently (if not intentionally) influence the outcome, when there is an expected or anticipated result -- that is, when the person conducting the lineup knows the identity of the suspect.

Testing the "accuracy" of blind procedures vs. non-blind is inherently problematic, however, without some sort of "ground truth" against which to compare the results. The likely outcome is quite likely to be that witnesses choose the police suspect more often when lineups are not conducted blindly, which does no more than confirm the influence of administrator bias. The problem is knowing whether or not the suspect is the actual culprit. In fact, if all we were after were a procedure most likely to result in an identification of the police suspect, we could just bypass the identification procedure altogether and move straight from suspicion to indictment. But hopefully the good people of Dallas County will assess the results of this project in good faith and account for this basic requirement in their analysis.

Unfortunately, the synopsis provided by the Dallas Morning News isn't encouraging on this front:

The method that leads to the fewest identifications of people who are not the suspected guilty party is expected to be the preferred method for conducting lineups.

In other words, if the procedure where the cop is pointing at the suspect and salivating like Pavlov's dog more often results in that person being picked -- with no knowledge of whether or not that person is actually the perpetrator -- then that procedure will be deemed superior. Hopefully this apparent fundamental flaw in the conception of this pilot project is either a reporting mistake, or if an actual reflection of the intended assessment metric, will be cured before the first the first tax dollar is wasted.

Another component being tested is the sequential presentation of the photos, which social scientists recommend, but caution should only be done if the lineup is also conducted blindly. Sequential presentation of lineup photos by an administrator who is aware of the identity of the suspect is more dangerous than even the traditional "six-pack" photo array, because the inadvertent influence of the administrator takes on heightened power when the suspect's photo is displayed by itself. Nonetheless, the Dallas project apparently intends to spend tax money testing this obviously flawed format as well.

The rational approach would be to treat blind not as a variable, but as a baseline. Blind procedures are scientific; non-blind are not. One protects against bias; one does not. It should be that simple, yet we see another study design that refuses to acknowledge this fundamental problem that continues to infect the reform dialogue.

But moving ahead. James Doyle of the Center for Modern Forensic Practice at the John Jay College of Criminal Justice sheds some light on the reasoning behind the sequential (blind) procedure:

Showing pictures one at a time provides more accurate results, Mr. Doyle said, because the method is akin to giving a true-false test.

"They have to compare that picture with their memory of the crime," he said "They can't compare the pictures with each other."

And on the pitfalls of the simultaneous format:

But many psychologists consider the traditional method to be similar to conducting a multiple choice test where "none of the above doesn't seem like a possible answer," said James Doyle, director of the Center for Modern Forensic Practice at the John Jay College of Criminal Justice in New York.

"What the psychologists believe is happening is that witnesses will pick out the person who looks most like the perpetrator by comparing the people in the array to each other," Mr. Doyle said.

Dallas County DA Craig Watkins claims to be committed to doing what it takes to fix the system:

"It's time for us to take a really close look at what we have done in the past and really make the necessary changes so we don't make the same mistakes," said Dallas County District Attorney Craig Watkins, who recently created a position to oversee DNA evidence and conviction integrity.

And the Assistant Police Chief as well:

"Everybody in law enforcement wants to use the best system," said Dallas police Assistant Chief Ron Waldrop, commander of the criminal investigations bureau. "Once it's been shown scientifically which is the best system, I think everybody will move to that system."

Then again, no one disputes that the most basic reform measure, namely blind procedures, is unequivocally less likely to result in wrongful convictions. Or at least no one does so with a straight face. This recommendation is a simple suggestion that one of the most basic lessons of science be applied to police procedures, based on decades of uncontroverted research across the sciences, and yet police departments and DA offices across the country continue to resist.

Let's hope Dallas County will count itself among those reversing the anti-science trend, and that this pilot project isn't another squandered opportunity to fix a serious and widespread problem.

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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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Federal Court Finds Lawyer Ineffective For Failure to Call Expert on Effects of Blood Loss and Sedation on Witness's Memory

Just came across an interesting recent decision from the 2nd Circuit, in connection with a habeas claim from an old New York case.

Brentonol Moriah was walking along a Brooklyn street at 2:30a.m. one summer night in 1996, when he was held up with a full-length shotgun. Mr. Moriah turned over the contents of his pockets, at which point apparently some headlights flashed, and his assailant fired the shotgun into his thigh. Moriah proceeded to lose approximately half of his blood before receiving treatment. When police arrived, he was still conscious, but only able to say that he was robbed and shot by a black male wearing a "lemon-colored shirt." The assailant was listed as "unknown" and "unidentified" in police reports documenting the incident. Mr. Moriah then entered an 11-day coma.

When he came out of the coma, but while still heavily medicated, Mr. Moriah reported that the man who shot him was his neighbor, Derrick Bell. On that evidence alone, Mr. Bell was convicted of robbery and assault at trial, which was upheld on appeal.

On the habeas claim, however, the 2nd Circuit found that trial counsel's failure to consult a medical expert on the expected effects of heavy blood loss, heavy medication, and an 11-day coma on the reliability of Mr. Moriah's memory as a witness to the crime, rendered Mr. Bell's trial counsel constitutionally deficient.

In connection with Mr. Bell's habeas claim, he contacted a neuropsychologist to review the case:

Bell submitted the affidavit of Dr. Elkhonon Goldberg, a neuropsychologist ... who reviewed the police reports from the case, Moriah's grand jury and trial testimony, and the trial testimony and affidavit of Dr. Brewer. Dr. Goldberg opined that: "Mr. Moriah's testimony contains unequivocal evidence that he suffered from retrograde amnesia for the events predating the loss of consciousness"; the retrograde amnesia was exacerbated by such anxiolytic and amnestic medications as Dr. Brewer attested were likely administered to Moriah in the emergency room; false memories can be persistent and dominant, overriding true memories; and Moriah was unlikely to have regained full consciousness when he first named Bell. Accordingly, Dr. Goldberg concluded that Moriah's identification of Bell was unreliable.

On that basis, the 2nd Circuit overturned the conviction:

where the only evidence identifying a criminal defendant as the perpetrator is the testimony of a single witness, and where the memory of that witness is obviously impacted by medical trauma and prolonged impairment of consciousness, and where the all-important identification is unaccountably altered after the administration of medical drugs, the failure of defense counsel to consider consulting an expert to ascertain the possible effects of trauma and pharmaceuticals on the memory of the witness is constitutionally ineffective.

The text of the decision is available on Westlaw: Bell v. Miller, --- F.3d ----, 2007 WL 2469423 (2nd Cir. 2007).

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New Zealand Government Funds Novel Eyewitness Research

The New Zealand Herald is reporting today that a New Zealand researcher will receive a government-funded grant in the amount of $170,000 to study factors affecting the reliability of eyewitness memory, in support of an effort to reduce wrongful convictions in the country. Dr. Rachel Zajac of the University of Otago will use some of the money to test a lineup modification on adults that was previously tested on children:

A previous study found that false identifications decreased dramatically when children were given the opportunity to point to an additional photograph depicting a silhouetted figure with a question mark superimposed, rather than verbally identifying a person in a line-up.

Following the success of the "non-pick pick" option in the earlier study with children, Dr. Zajac will conduct a similar test to determine if the same reduction in false IDs carries over when the modification is tested on adults. This strikes me as sort of a visual take on the "you don't have to pick anyone" lineup instruction, which could conceivably serve as a stronger deterrent to guessing than the instruction alone. (It turns out the old Rush lyric applies as well to lineups as anything else: If you choose not to decide, you still have made a choice.)

Since a witness actually sees the "non-pick" as one of the several choices presented in this test condition, it seems possible that not choosing anyone will appear as a more viable option in cases where witnesses are genuinely uncertain, as compared to a lineup comprised solely of affirmative choices, where the only acknowledgment of the non-choice as an option was an instruction read prior to viewing. I'll be interested to see the results.

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Innocent? Prove it.

Last I checked, the U.S. Constitution mandates that criminal defendants are presumed innocent, and guilt must be proven by the state. It may not say it in the plain text, but people who read the Constitution for a living swear it's floating around somewhere in the "penumbra" of the 5th, 6th, and 14th Amendments. In any case, the Supreme Court agrees. In fact, the presumption of innocence is "axiomatic and elementary." "[I]ts enforcement lies at the foundation of the administration of our criminal law."

There are several reasons for this, some of which are purely practical. One of these reasons is that it is no small feat to prove actual innocence. Another is that the average criminal defendant doesn't have the resources bestowed upon state and federal governments to cover court costs. So the burden of proof is on the party with the resources. This makes sense.

So why do innocent people have to prove their innocence in order to clear their records of false charges?

I came across a short editorial in the Sacramento Bee this morning arguing that they shouldn't, and I tend to agree. The editorial traces the story of Eric Warren, who spent 53 days in jail after being charged with a series of similar crimes in the area, following a phone tip and shaky other-race IDs by five witnesses. He maintained his innocence throughout, and a substantially similar crime was committed in the same area while he was locked up, suggesting someone else was behind all the crimes.

Ultimately Mr. Warren was released, after the eyewitness and other evidence quickly fell apart. Prosecutors admit to having "substantial doubts" about his connection to any of the crimes.

But,

If a mistake was made, what is the remedy for Warren? His family is out thousands of dollars in legal bills. Warren is out of jail, but he's not free from the effects of what appears to have been a false accusation. For example, if asked on a job application, "Have you ever been arrested?" must he answer "yes" -- a devastating admission for any job-seeker and particularly so for a young African American man? A declaration of "factual innocence" would officially expunge Warren's arrest record. But such a declaration requires Warren to petition the court himself, incurring yet more legal costs. That's unfair.

Not to mention extremely difficult. Even if the witnesses ultimately admit to being unable to make a reliable ID, that's still short of factual innocence. If Mr. Warren's only alibi is that he was at home sleeping at 4a.m. on the night of a particular crime, as most of the other innocent people in Sacramento likely were, he's going to be hard pressed to affirmatively prove that he wasn't out committing those crimes. Barring definitive DNA evidence, new eyewitnesses, or a confession by the actual perpetrator, Mr. Warren is left with an arrest record because the government made a mistake. The Sacramento Bee offers a better solution:

If a mistake, no matter how innocent, was made by witnesses, by police or by prosecutors, the system owes Warren an apology. A declaration of "factual innocence" is the one meaningful apology available to him. He should not have to pay for it.

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"They may as well have made him wear a target on his chest or a sign over his head saying 'pick me,'" says US federal court

I just came across an interesting decision issued last month from the U.S. District Court for the Northern District of Illinois, in which the court considered (and rejected) eyewitness evidence in support of an extradition request by the Republic of Poland. In re Mazur, Slip Copy, 2007 WL 2122401 (N.D.Ill. 2007).

The evidence presented in support of the government's probable cause showing included a live lineup of four men. Three of the men were "dressed in dark, subdued colors, whereas Mr. Mazur is wearing a bright red, slightly oversized jacket" -- a jacket "foisted" on Mr. Mazur by the authorities "in an effort to make his dress look less formal." In the words of the district court, "They may as well have made him wear a target on his chest or a sign over his head saying 'pick me.'" The court went on to say that the ID procedure employed by Polish authorities "would never pass muster in this country," that the lineup was unduly suggestive and "highly suspect." It further found that "the government's reliance on this identification is shocking and offensive." Id. at *24.

If only our courts could save some of that disdain for the procedures routinely done by our own police.

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When the DOJ Says It, Jurors Listen

A study was published a couple of years ago that tested juror reactions to information suggesting that police had failed to follow best practices in conducting eyewitness lineup procedures. (I haven't found the text online, but here's the cite: J.M. Lampinen et al., The reactions of mock jurors to the Department of Justice Guidelines for the collection and preservation of eyewitness evidence, 27 Basic and Applied Soc. Psychol. 155 (2005)).

The study used a set of mock trial transcripts, which were adapted from a real robbery case, in which a man was described as having robbed a convenience store while wearing a "makeshift" mask, and who told store employees that he had a gun and was "not afraid to use it." Three witnesses testified against the defendant -- one who claimed to have seen the perpetrator from about 40 feet away outside the store, as he removed his mask, a police officer who was inside the store during the robbery, and a friend of the defendant who testified that the defendant had a gambling problem and owed a lot of money, thereby establishing motive. The first witness selected the defendant from a photo array, after which charges were filed.

The researchers tested three different conditions, using the same facts -- in the first (control) condition, a trial transcript was provided to mock jurors including no mention of police errors in conducting the lineup procedure. In the second condition, two police errors relating to lineup procedures were mentioned, which were subsequently brought up by the defense. In the third, the same two police errors were mentioned, and the defense attorney not only highlights them, but also points out that they violate the Department of Justice Guide for Law Enforcement on Eyewitness Evidence (PDF). Aside from these modifications, the underlying transcripts were identical.

From the second condition:

Q. Officer Jacobs, I want to now ask you about the lineup which you showed to Ms. Wilcox.
A. Okay.
Q. Officer Jacobs, did you ever inform Ms. Wilcox that the culprit may or may not be in the lineup?
A. I don’t believe so.
Q. Don’t you believe it would have been a good idea to let the witness know that she didn’t have to pick somebody?
A. In my experience, things like that don’t make any difference.
Q. Officer Jacobs, Mr. Martinez has a mole on his left cheek, did any of the other photographs you showed Ms. Wilcox have a mole?
A. No.
Q. Aren’t you afraid that would make Mr. Martinez stand out?
A. No sir I wasn’t. In my experience, witnesses either recognize someone or they don’t.

And then from the condition in which the procedures used were contrasted with DOJ best practices:

Q. Officer Jacobs, I want to now ask you about the lineup which you showed to Ms. Wilcox.
A. Okay.
Q. Officer Jacobs, did you ever inform Ms. Wilcox that the culprit may or may not be in the lineup?
A. I don’t believe so.
Q. Don’t you believe it would have been a good idea to let the witness know that she didn’t have to pick somebody?
A. In my experience, things like that don’t make any difference.
Q. Officer Jacobs, are you familiar with the Department of Justice guidelines that were recently published entitled “Eyewitness Evidence: A Guide for Law Enforcement”?
A. I’ve heard of them.
Q. And are you aware that they state that the investigating officer should make clear to the witness that the culprit may or may not be in the lineup?
A. No I wasn’t.
Q. Alright Officer Jacobs, Mr. Martinez has a mole on his left cheek, did any of the other photographs you showed Ms. Wilcox have a mole?
A. No.
Q. Aren’t you afraid that would make Mr. Martinez stand out?
A. No sir I wasn’t. In my experience, witnesses either recognize someone or they don’t.
Q. I see, well were you aware, Officer Jacobs, that the Department of Justice guidelines state that the suspect should not stand out as being different from the
other members of the lineup?
A. No I wasn’t.

The same tactics were echoed in closing arguments.

The result?

Mock jurors in the DOJ condition (a) voted to convict at a lower rate, (b) rated the eyewitness as less credible, (c) rated the investigating officer as less professional, and (d) were more likely to opine that the investigating officer had thereby jeopardized the prosecution’s case.

Just as interesting was the fact that raising problems with the ID procedures on cross and again in closing produced no fewer convictions than the condition in which the errors were never mentioned at all.

The moral? Juries listen when they learn that police violated practices set forth by an authoritative source. They pay less mind when the source is a defense lawyer.

UPDATE: I should mention, as has been mentioned to me, that the results of this study should not be taken to invoke a sort of fatalism in those cases where introduction of the DOJ guidelines, or some other authoritative source, is not permitted or otherwise possible. A cursory look at the study shows that the second condition by no means involved a properly developed cross of a cop on a flawed ID procedure, and the lack of difference in conviction rate between the first two conditions should certainly not be taken to mean that it isn't worthwhile to wage a full scale attack on bad IDs, even when you can't get authoritative best practices in front of the jury. The silent lesson from the study might just be that your cross shouldn't look like the one in condition #2.

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The Problem with Telfaire

The so-called "Telfaire instruction" (from U.S. v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972)) is the most commonly used jury instruction on eyewitness ID in U.S. courts, aimed at alerting jurors to the potential pitfalls of eyewitness evidence. Unfortunately, it is based directly on the flawed and outdated criteria for assessing the reliability of eyewitness evidence set forth in Neil v. Biggers in 1972, which was decided before the majority of eyewitness research now available was conducted, when the entire field was in its infancy. As a result, the instruction often backfires, causing jurors to rely even more heavily on shaky eyewitness testimony, rather than serving its intended purpose of sensitizing them to the factors that tend to make it unreliable.

It opens as follows:

Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.

Here's the first problem. When a judge instructs a jury to rely on the "strength of the identification," she asks them to consider the confidence of the witness in assessing his or her accuracy. Yet it is well-established among experts that a witness's confidence is "a dubious indicator of eyewitness accuracy even when measured at the time an identification is made." See, e.g., Steven Penrod & Brian Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 Psychol., Pub. Pol., & L. 817 (1995). According to the same article, the more emphasis that is placed on the Telfaire instruction, the more jurors tend to credit eyewitness testimony. That is, "the instruction produced a credulity rather than a skepticism effect." Id. at 833.

The Telfaire instruction continues:

You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.

There's more trouble here. This is true if and only if the lineup is conducted in accordance with best practices, and given that rigid criteria are applied in adhering to the "similar" requirement. Lineup members can quite easily pass a broad interpretation of the "similar" test, by, for example, all belonging to the same race. But the requirements of a good lineup are far more subtle than a generic "similarity" requirement, which juries are not equipped to judge without insight from the research. And as Gary Wells has pointed out, a bad lineup can have the effect of pointing a giant finger at the suspect, while giving the witness heightened (though false) confidence because she "picked" him from a group.

The problems with Telfaire are apparent, and defense lawyers have been urging trial courts to abandon it for some time. As an alternative, researchers recommend detailed instructions that are informed by the findings of social scientists over the last 35 years, since the Biggers factors were identified by the Supreme Court with no scientific basis.

These tailored instructions should include, where applicable, instructions on the cross-race effect, the detrimental effects of stress on eyewitness memory, the weapon-focus effect, the absence of a reliable correlation between confidence and accuracy, and lineup procedures that have been shown to make an identification more or less reliable.

But scientifically accurate jury instructions are not enough. To properly sensitize jurors to the problems with eyewitness testimony and to begin to curb the nationwide wrongful conviction problem due to over-reliance on bad eyewitness evidence, expert testimony is critical. In fact, according to the recent Copeland ruling by the Supreme Court of Tennessee, expert testimony is the only reliable method to ensure that jurors have the necessary tools to assess eyewitness evidence accurately. State v. Copeland, 2007 WL 1498396, *11 ("Research over the past 30 years has shown that expert testimony on memory and eyewitness identification is the only legal safeguard that is effective in sensitizing jurors to eyewitness errors.").

It's time to stop misinforming juries based on the antiquated, unscientific musings of an old Court, and to start letting science into the courtroom at every phase of trial. The Constitution demands it, and the rights of the wrongfully accused depend on it.

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GA Supreme Court Will Hear Troy Davis' Case; Original Jurors Urge New Trial

On Friday, the Georgia Supreme Court agreed to hear the appeal of Troy Davis, including new evidence of police coercion that undermines the eyewitness testimony that was the primary basis of his conviction.

Now, four jurors from Mr. Davis' original trial have come forward urging clemency and a new trial, in light of this new evidence that has come to public attention. Knowing what she knows now, one juror said that if Mr. Davis is executed, it will "haunt her until her own death." That juror and three others submitted sworn statements to the Georgia Board of Pardons and Paroles, urging them to avert this injustice.

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