- First, Texas has no standards to ensure that eyewitness testimony is obtained in ways that protect against the risk of mistaken identification.
- Second, Texas allows the introduction of confessions that have been obtained without safeguards to protect against false confessions.
- Third, use of informant testimony is largely unregulated in Texas.
- Fourth, pervasive flaws have been identified in the analysis of presentation of forensic evidence that result in unreliable results.
- Fifth, pretrial discovery procedures are inadequate to safeguard against the prosecution's suppression of evidence favorable to the accused.
- Sixth, Texas prosecutors in Harris County and elsewhere have a shameful history of excluding African Americans from juries.
Eyewitness testimony is vulnerable to error in all types of cases when the witness didn't previously know the defendant, not just capital murder. Texas does not require recording police interrogations, and confessions needn't be corroborated as they must be, for example, in federal and military courts. Very few limits exist on incentivized informant testimony. The same forensics that are flawed in capital cases have been questioned in more mundane settings. And neither pretrial discovery nor racial skewing of jury selection are procedural matters that only arise for capital defendants.
So in a real sense, this is not a debate over "Death Penalty: Pro or Con?," though you can be sure that's how the loudest arguments will be framed. The only thing that makes these issues especially problematic regarding death penalty cases is the irreversibility of error, not its sources, which are common in many types of cases.