Saturday, January 15, 2011

Bill requiring eyewitness ID policies a good first step, but remedy still needed for noncompliance

The Dallas News had an editorial last week endorsing eyewitness ID reform legislation proposed by state Sen. Rodney Ellis, citing the case of Cornelius Dupree, who "spent 30 years caged up because the victim mistakenly picked him out of a photo lineup." The News editorial contains a good summary of the legislation:
SB 121 by Sen. Rodney Ellis would:
• Require police agencies to adopt and implement written policies on photo lineups and live lineups of suspects.

• 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.
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.

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:


Anonymous said...

The reason there doesn't need to be an exclusionary rule is that every identification is different and dependent on any number of variables. Ultimately, it's the witness's certainty at issue. Not the conduct of law enforcement. Would you suppress a witness's in court identification as well? What if there was other evidence of guilt like a fingerprint or DNA? What if there were multiple eyewitnesses who identified the suspect with technical non-compliance by law enforcement? What if there was an ongoing emergency and there wasn't time to comply with the model standards?
By the way, you've criticized victims in the past for using their tragedies to advance stricter penal reforms. How is what Rodney Ellis is doing here any different?

Gritsforbreakfast said...

I'd be happy letting the info in with a jury instruction, 1:04. I don't think exclusion is the only possible remedy.

As for "criticizing victims," I don't think I've done so except in instances where the reforms proposed weren't responsive to the incident and wouldn't solve the problem (e.g., with penalty enhancements). If you think I've done so more broadly, please point me to whatever I've written that leads you to believe so.

Prison Doc said...

Maybe a first baby step, but this seems disappointing.

My information is all anecdotal but it seems like every effort should be made to exclude eyewitness testimony sounds really incontrovertible, but there have been too many instances where it has failed.

I would be a failure at it myself, and I am normally a fairly smart guy--but I tend to identify people by haircuts or hats or clothing and not by good anthropometric facts, and I'm afraid that many folks do the same.

As a doctor I tend to have complete faith in DNA evidence, but recent questioning of fingerprint ID accuracy is a topic of much upcoming interest.

Anonymous said...

Exactly Doc. I mean if we can't have a system that insures perfection and certainty of guilt 100% of the time, then we just shouldn't allow criminal prosecutions, period.

Gritsforbreakfast said...

And 6:23, clearly you'll tolerate error rates for evidence no matter how high they are.

Anonymous said...

Why not just pass a law that standardizes line-up procedures statewide?

Anonymous said...

A similar piece of legislation by Ellis was defeated in part by the efforts of Senator Joan Huffman, an ex-prosecutor and judge, and Houston Police Officer's Union Executive Director Mark Clark. Every policing agency in the state lobbied against it because it would curtail their efforts to manipulate the evidence, and close more cases. The concept is that law enforcement officers "know" who the guilty parties are but sometimes they lack the ability to obtain evidence necessary to convince a jury, so being able to show pictures of a suspect to a witness a few dozen times, then have them identify the culprit in a formal line-up, enables them to morph their "hunch" into court approved evidence. Even if this bill passes it has no teeth. Until law enforcement officers have a real threat of serving prison time, they will continue to manipulate as well as manufacture evidence so that cases can be cleared in a timely manner.

Anonymous said...

You tell 'em, 10:24! Lord knows there are very few real crimes committed in Texas and hardly any real victims. Those nasty police have so much free time on their hands they have nothing better to do than manufacture bogus cases against innocent people!

Anonymous said...

Let's promote the "No Snitching" policy. Then, let's promote the idea that you can't believe an eyewitness, the film of the crime, or any other piece of evidence. It all goes together, doesn't it? The purpose: to make sure the criminal gets off.

All these little stories may seem to be different, but they all have the same purpose.

Again. The purpose: to make sure the criminal gets off.

Gritsforbreakfast said...

7:46, For years I've criticized the so-called "stop snitching" meme on this blog. I realize you're just an anonymous troll who's too big a coward to sign his name to his opinions (and too lazy to come up with new comments instead of posting the same thing every day), but don't you have better things to do than just make stuff up?

grayfox43 said...

If one wants to see the cruel and unjust impact of faulty eyewitness identification techniques, look no further than Timothy Brian Cole, the subject of my newly released book titled A Plea For Justice: The Timothy Cole Story. The Lubbock Police Department thought they had the "right" man for a rape that occurred in 1985; they had the victim's strong identification; but no other evidence. Is this enough to ruin a man's life and have him die in prison for a crime he did not commit? You be the judge.

Brian Tillman said...

I'm always surprised at the short-sightedness of people who oppose doing things the right way. Moronic comments about getting the criminal off don't realize that their own way of thinking leads to that very end. Using flawed procedures leads to the actual perp getting off while the wrong guy went to jail. Thanks Grits for keeping issues like these in front of folks.

Anonymous said...

Those making the comments about getting the criminal off need to think about the fact that when the wrong person goes to prison, the guilty person is still out there and still poses a danger.

Its amazing how these things can have unforeseen consequences. Take the infamous Kerry Max Cook case, for example. We know Cook was wrongly convicted and the real killer was never brought to justice, even though everyone knows who did it. But, there's another interesting thing about that case. The DA who initially prosecuted the case made a deal with a jailhouse snitch who later admitted he lied. This snitch was charged with murder but in exchange for his testimony was released under a voluntary manslaughter plea for time served (I think it was 2 years). Guess what. This man committed another murder in another state. So, by persuading this murder to lie so that he could convict an innocent man, the DA was directly responsible for another murder. Had the DA went after the real killer, there was more than enough evidence to convict him without using perjured testimony. Had he done that the real killer would have went to jail. He could have gone ahead and prosecuted the snitch for murder, thereby saving another life, and an innocent man wouldn't have spent 20 years on death row. If people would just do the right thing, we'd all be better off.

Thomas R. Griffith said...

Grits & All, thanks for spanking the trolls so I don't have to.

Re: SB 121 by Sen. Ellis; when he chose to leave out the 'remedy' portion, it basically weakened the bill. Now all we have to do is find out why he wants to our hero by championing this bill, all while appearing to have knowingly dropped the ball in respect to including a remedy?

Something tells me he’s skeeeered. Hopefully someone will ask him to explain himself. In the mean time, it’s 2011 and the major problem is still a major problem. Thanks.