Juries need more, better information to prevent false convictions

Find below the text of written testimony I submitted this morning on behalf of the Innocence Project of Texas to the House Judiciary Committee in response to their interim charge on juries, also cross-posted on the Innocence Project of Texas' blog:

Testimony on behalf of the Innocence Project of Texas to the House Judiciary Committee regarding its Interim Charge related to Juries

By Scott Henson, Innocence Project of Texas Policy Director, 11-13-08

First, thank you to the House Judiciary Committee for examining possible systemic changes to enhance the jury experience and increase citizen participation on juries. While most of the discussion here today is likely to focus on payments to jurors for their time, jury recruitment and other such measures, we cannot forget that some of the worst juror experiences come not from waiting in long lines or losing time at work but participating, unknowingly, in the false conviction of an innocent person.

Juries' decisions are inevitably a function of what information they're given, but today they're often not given enough information, or the right information, to make a correct decision. Too often, they are asked to judge things (like who is lying, the accuracy of an eyewitness or informant, etc.) that they cannot know, and sometimes juries make mistakes – more often, it turns out, than we ever could have known prior to the advent of DNA testing.

In that light, there's probably no more important aspect to enhancing jurors' experience than making sure they have sufficient and reliable information on which to make a correct decision. There are several things the Legislature could do to ensure jurors hear more reliable evidence and reduce the number of false convictions.

Punish Brady Violations and Mandate Open Files

Some of the DNA exonerees in Texas were convicted even though the prosecution had potentially exculpatory evidence in its possession that wasn't turned over. Brady violations aren't punished harshly enough by either the courts or the state bar, and prosecutors are for the most part immune from civil liability for withholding exculpatory evidence. Dallas District Attorney Craig Watkins has proposed creating criminal penalties for knowing Brady violations by prosecutors.

Even if the committee prefers not to create such penalties, there must be a way to ensure defensee counsel has access to potentially exculpatory evidence or else a jury can never get the chance to hear it. A mandatory, statewide “open file” policy in criminal cases – Tarrant County has a good policy that could serve as a model for the state – would go a long way toward solving this dilemma.

Ensure Juries Hear Reliable Evidence

Juries routinely hear various types of evidence – including recanted confessions secured with unrecorded interrogations, uncoroborrated informant testimony, eyewitness ID's gathered using questionable methods, or forensic lab results with high error rates – that may lead them to incorrectly infer guilt when a defendant is actually innocent.

• Record interrogations: Give recordings to the jury

The problem of false confessions is not as uncommon as you may think: In Austin's infamous Yogurt Shop murders, more than 50 different individuals confessed to the crime, most of whom, obviously, had nothing to do with the case. People may falsely confess out of fear, confusion, mental illness, or because of guilt-presumptive police interrogation techniques. Recording interrogations will not end false confession, but it will give the jury a way to assess the validity of a confession if it is later recanted.

Today, recording technology is inexpensive and widely used by many departments. The Legislature could simply declare that a confession won't be admissible in a felony case unless the interrogation leading up to it was recorded, letting juries hear for themselves how the confession was obtained.

In the vast majority of cases, such recordings will actually assist the prosecution more than the defense. For proof, look no further than the popularity of police dash cams purchased through a state bond authorized in 2001 by SB 1074, Texas' racial profiling statute. Police unions fought the change, but in the end, for the vast majority of good officers, the dash cams protected them and backed up their side of the story much more often than they substantiated claims of police brutality. Cameras provide juries more evidence as to how the defendant and police were actually behaving.

• Improve Eyewitness ID Procedures

The most common reason innocent people go to prison is because a victim or witness identified them as the perpetrator, but the witness turned out to be wrong. Eyewitness testimony is the most powerful thing a prosecutor can bring into the courtroom besides a confession, so when it's wrong there's a devastatingly high chance a jury will believe it. In Dallas County 18 of 19 DNA exonerations involved faulty eyewitness identifications.

We now know thanks to more than two decades of academic research that eyewitnesses, particularly in cases where they previously didn't know the suspect, get the identification wrong much more often than anyone previously thought. In fact, witnesses can be wrong even (perhaps especially) when they are absolutely certain about their ID at the time of trial.

Researchers have identified best practices for police conducting photo lineups that will reduce the number of false identifications without lowering the rate of correct identifications. Most of this could be done at very little cost to departments.

Texas appellate courts say they can find no statutory or caselaw authority to require police to use non-biased identification methods, which means it is time for the Legislature to step in and mandate that a jury cannot hear testimony about a lineup or photo array unless it's conducted based on accepted best practices, including at a minimum: 1) a 'blind' administrator (someone not involved in the investigation) conducts the procedure; 2) photos don't provide clues as to which one officers expect the witness to pick (there are several good ways to ensure this); 3) the witness is informed that the suspect may not be there; 4) the witness' exact response and level of certainty are recorded at the time of the identification. It's important to record the level of certainty at the time the identification is made, because by the time a trial occurs many witnesses will have convinced themselves that the person they identified must be the one.

Most law enforcement agencies don't have specific policies regarding lineups or photo arrays, and most routinely use practices that we now know can encourage false identifications. Some may change their ways voluntarily, but the best way to reduce the chance jurors hear false identifications would be to require these changes for everyone.

• Better vet informant testimony before it reaches jurors

Regarding so-called “infomants,” for the most part we're talking about the testimony of criminals who're trading their testimony for the sole purpose of reducing their own culpability for their own crimes. After the Tulia drug scandal up in the Texas Panhandle, the Texas Legislature took a first step toward reining in this problem by requiring corroboration for informants used in undercover drug stings. That has worked out well, and the corroboration requirement should be extended to all informants who are compensated for their testimony either by reduced culpability for their own alleged crimes or, as sometimes happens, directly with money.

In addition, testimony by criminal informants should be subjected to a pretrial reliability hearing, informed by stronger pretrial disclosure of the informants' backgrounds and what concessions were made by the state to secure their testimony. This is because jurors have a hard time vetting informant testimony. Informants whose lives are on the line may be particularly adept at sticking to a false story under interrogation, or perhaps juries tend to believe them as they believe eye witnesses. The pretrial hearing allows a judge to vet informant evidence, simply because crimnal informants are inherently unreliable and their testimony deserves more scrutiny before a jury ever hears it.

Over on the other side of the capitol, Sen. Rodney Ellis has filed several pieces of legislation that begin to address these fundamental problems.

• SB 116: Recording interrogations
• SB 117: Improving eyewitness ID procedures
• SB 260: Improving reliabilityof informant testimony

Though, of course, it's still very early, none of these bills yet have House companions. But I'm hoping these ideas will find strong support in the House and in particular among members of this committee.

Juries are a critical part of the process, but they can't effectively do their jobs if they must make their decisions based on an incomplete record or potentially unreliable testimony. Thanks for your time and for the Committee's commitment to enhancing jurors' experience.

Submitted to the Texas House Judiciary Committee on November 13, 2008 by Scott Henson on behalf of the Innocence Project of Texas.