SB 121 by Sen. Rodney Ellis would:
• Require police agencies to adopt and implement written policies on photo lineups and live lineups of suspects.This bill would be a great first step - right now most agencies don't even have policies related to eyewitness identification, and scant few have actually required use of best practices. The main shortcoming is the remedy (or lack thereof), depicted in the last bullet: If police don't comply with procedures, the defense can tell the jury about it. Not only won't the exclusionary rule apply (i.e., keeping the evidence out of court entirely), for reasons that remain an utter mystery to me, in 2009 the Texas Criminal Defense Lawyers Association fought tooth and nail to keep from even requiring a jury instruction from the judge. Indeed, the group ended up outright opposing the bill before the '09 session was complete. Thanks to that bizarre miscalculation (I've never talked to another criminal defense lawyer who agreed with TCDLA's lobbyist on the subject) the bill contains no substantive remedy for noncompliance.
• Direct the Bill Blackwood Law Enforcement Management Institute of Texas, at Sam Houston State University, to develop a model policy and training materials on ID procedures.
• Require help from law-enforcement agencies and outside experts in developing the procedures, drawing from research and practices used across the nation.
• Require the policy to be disseminated to all law enforcement agencies.
• Allow evidence of compliance or noncompliance with the model policy to be admissible in court.
Research over the last couple of decades has shown that eyewitness testimony is essentially a form of trace evidence, and like all trace evidence it can be contaminated through faulty collection methods. Requiring police to have policies on eyewitness ID is a good thing, but the bill would be stronger and the protection against convicting innocent people much more significant if it included a remedy when the rules aren't followed.
See related Grits posts:
- How much do eyewitnesses really see?
- Eyewitnesses and the 'feeling of knowing'
- Eyewitnesses in staged test only 8% accurate
- More on the fallibility of eyewitness testimony
- Eyewitnesses miss big changes in their environment, like the person in front of them
- Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices
- CCA Integrity Unit: Eyewitness ID reform should be top innocence priority