Sunday, January 15, 2006

Nuther bill idea for 2007: strengthen eyewitness testimony

Mark Godsey at CrimProf blog points out that "Eye-witness identification has proven to be dangerously fallible, accounting for over 75% of postconviction DNA exonerations." State legislatures could do many things to reinforce and strengthen the reliability of eyewitness testimony, but these two come to mind offhand:
  • Require corroboration for eyewitness testimony where the witness was not previously acquainted with the defendant. (This could have saved Ruben Cantu's life. Texas is the only state to require corroboration for informant testimony in drug cases.)
  • Require photo arrays and lineups to be done according to best practices, especially requiring them to be conducted by an officer who is not part of the invetstigation and who doesn't know the identity of the suspect.
Can anyone think of other ways to address the problem, or know what other jurisdictions have done?

7 comments:

Patrick Timmons said...

Don't forget Gary Graham/Shaka Sankofa.

mccm said...

I'm sure you're aware of the work of Elizabeth Loftus concerning the fragility of memory in general and crime-scene memory in particular. If I recall correctly (hardy-har), one tip was to allow witnesses to record via writing or audio every detail they can come up with without any questioning. This can protect to some degree from the dangers of implanted information from leading questions.. i.e. "Was the man already holding the lead-pipe when he got out of the car?" When it was really a woman with a candlestick getting out of a truck.

I'm sure Dan Schacter's Seven Sins of Memory has a section on this.

Loftus has a 1996 book on the subject.

Carol Huneke said...

Part of the problem with eyewitness testimony is systemic and part is human nature. Regarding the systemic part, it's a great idea to impose standards for non-suggestive identification proceedures. And also to require corroboration of a person identified solely through an eyewitness ID. Standards for show-up IDs should also be addressed.
A show-up ID is where the police find a suspect right away and bring the witness to the suspect to see if they have the right guy. There is obviously a reason to have the witness look at the person right away, while their memory is the most fresh, but showing the witness a single suspect is obviously problematic. I had a case where police actually did line up about 8 people at a show-up ID, which was good, only to discover through my investigation that at the show-up, my client was the only one who happened to be wearing handcuffs.
The other part is the human nature part, that even if procedures aren't suggestive, that eyewitness IDs just aren't that reliable. Eyewitnesses just get things wrong, especially in cross-cultural situations. Studies have shown that the level of certainity of an eyewitness doesn't correlate with the accuracy of the ID. Jurors also want to believe the eyewitness--they have no motive to lie, right? And the police would never arrest the wrong person, you know. So a defendant needs a good lawyer who is aware of these factors and can skillfully explain them to a jury. Good public defenders can only be insured by an independent, well-funded public defender system. Also, in any case that involve this type of ID, the criminal lawyer should have funds to hire an eyewitness ID expert to explain to the jury the problems with these ids.
I've also always hated the in-court identification, where the witness comes in and is asked to identify the person who assaulted him, and guess what, he identifies the person sitting at the defendant table. (Even given this suggestive set-up, I've seen a witness identify the court reporter as the assailant, juror number 11 and, one time, the defense lawyer.)

hope said...

"(Even given this suggestive set-up, I've seen a witness identify the court reporter as the assailant, juror number 11 and, one time, the defense lawyer.)"

That must have been something to see. Surely the case against the defendant was dropped after such a scenario?

Danika said...

I may be wrong about this so it would be interesting to hear what your Bro says about this but.....I have been told by my boyfriend that during Biblical times someone had to be accussed of a crime by at least 3 creditable witnesses. He reads the Bible a lot and if I am not mistaken I've read something to this effect.There are too many people(I think) who would give false testimony during a trial either (1)because they actually start to believe their telling the truth(2)they have something to lose/gain by doing it(3)they tell themselves the wrongly accused person has committed a crime before and will again and that by testifying they are helping to get the guy off the street (4)I'm sure I could think of a few more but......Anyways, yeah, I think the movement to change the way our criminal
"(in)justice" system does things is one that needs to happen-yesterday. More and more people are going to get locked up for doing less and less.....Next thing you know they are gonna outlaw cigarettes and then alcohol again and..........greenbeans and WHAT!! Hey, you never know. We gotta reclaim our rights before the chance is gonna!! By the way-maybe you could call this irony-I have a horrible cold and thought about buying a product with ephedrine in it the other day....But guess what?....no store w/in a 15 mi radius of my house carries anything so I thought about going all the way to Wal-Mart which is a 30 min drive from my house but I was too afraid to-even though I wanted the med for a ligit reason I was still too nervous go get any-what in the world is the world coming to?

Gritsforbreakfast said...

Thanks, especially mccm and Carol for the suggestions. Especially nice to see you commenting, Carol -- she and I go back about 20 years to when we both worked at The Daily Texan.

Danika, I actually cited the biblical verses regarding corroboraton in this post. I'd also encourage you to go ahead and get your medication -- things are bad, but they'll just get worse if our folks behave like they're intimidated or don't exercise their rights. I hope you feel better soon.

Best to all,

karl said...

LI would recommend starting with the NJ Attorney General Guidelines for Eyewitness Identification. I would also run the NJ AG Guidelines on Google & Lexis to get how they have been used.

Also look at the NJ crossracial identificatin jury instructions which I think is one of the few (if only) instruction on the subject in the country.

I am a criminal trial attorney in NJ and while the guidelines & instructions aren't perfect, they are better than what most states are currently using.