- HB 215 Relating to photograph and live lineup identification procedures in criminal cases.
- HB 219 Relating to the electronic recording and admissibility of certain custodial interrogations.
- HB 220 Relating to procedures for applications for writs of habeas corpus based on relevant scientific evidence.
All three of these bills passed out of the same committee last session before dying in the hyperpartisan tumult over VoterID on the House floor, where they all sat on the Calendar as time expired in 2009. Though the committee's membership has changed rather dramatically since then, the bills have since been vetted by the Timothy Cole Advisory Panel and most of the special interests who usually oppose reform bills have signed off on the compromise language. So, while weaker than Grits might prefer - particularly as it regards a "remedy" when proper lineup procedures aren't used or interrogations aren't recorded - this legislation represents an important first step toward addressing false convictions based on flawed eyewitness IDs, false confessions, and junk science. Once policies and procedures are in place and law enforcement realizes the new approach benefits them as well as suspects, it may be possible to strengthen the laws down the line.
Making me particularly hopeful, the Dallas News this week ran a blog post interviewing Criminal Jurisprudence Vice Chair Will Hartnett, who said he plans to sign on as joint author of the eyewitness ID bill. Says Hartnett:
"I'm trying to think of the old saying ... "The conviction of an innocent person is a crime unto itself." It's an indictment of our justice system. Our country was founded on protection of liberty and individual rights. The justice system needs to bend over backward to protect innocent people. The fact that we've seen so many people imprisoned for long periods of time, when they were innocent, indicates we've got a problem that needs to be fixed."Though most Grits readers are aware, it bears repeating: Flawed eyewitness identifications lie at the root of the large majority of DNA exonerations, followed by mendacious informants, false confessions and flawed forensics. Far from maximally reliable as often presumed in court, eyewitness recollections are in fact a form of trace evidence, and like all trace evidence it can be contaminated during collection. HB 215 requires departments to have a policy on lineups (most don't) and lets defense counsel tell juries if the rules weren't followed. IMO this bill should have at least a jury instruction as a remedy, but inexplicably, in 2009 the criminal defense bar fought tooth and nail to remove all remedies from the bill, leaving the version considered by the Tim Cole Advisory Panel radically weakened. Ironic, that, but whaddya do?
By contrast, HB 219 and HB 220 won't necessarily prevent false convictions but provide new tools to try to rectify the problem. HB 219 requires recording interrogations in serious, violent crimes, with a jury instruction as a remedy. Here, though, I'd actually go farther. While for a variety of reasons I think a jury instruction is the right remedy for eyewitness testimony, a confession is a horse of a different color and if I had my way, I think the exclusionary rule should apply. That, however, is not what this bill does, which is why for the most part law enforcement interests are okay with it. Prosecutors actually prefer recorded confessions, of course, because they're better evidence. And the declining cost of viable recording equipment makes the expense factor for local agencies increasingly minimal.
HB 220 is perhaps my favorite of the three, a simple, clean little bill on a little-understood topic: habeas corpus. It addresses a situation which has faced several DNA exonerees before their names were finally cleared: They filed so many habeas writs they were declared writ abusers and prohibited from filing successive writs in the future in the interest of finality. (Of course, the Catch-22 is that, if you're really innocent, you might just keep filing habeas writs no matter how many times they were turned down!) This bill lets habeas writs under such circumstances be considered if "relevant scientific evidence is currently available and was not available at the time of the convicted person's trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person's trial." The bill was the subject of intense negotiation last session with the DAs lobby but (knock wood) those agreements appear to be holding I've heard no complaints about the version presently on the table.
Though anything can happen and there's much work ahead, there's also reason for optimism these bills can pass: The Chairman choosing to author them, much less propel them to the front of the line, means they might actually have time to get out of the House this time, and essentially similar versions passed the Texas Senate in 2009. But that's getting ahead of ourselves. First up: Tuesday's committee hearing. I'm quite looking forward to it.
- Responding to unanswered questions on Rodney Ellis' innocence legislation: "How much of an innocence problem do we really have in this state?"
- First Texas DNA exoneration of 2011: Cornelius Dupree
- Bill requiring eyewitness ID policies a good first step, but remedy still needed for noncompliance
- 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
- Dallas PD moves to blind, sequential lineups
- CCA Integrity Unit: Eyewitness ID reform should be top innocence priority
- Latest exoneration highlights problem of false confessions
- Are false confessions 'coerced' or 'persuaded'?
- CCA orders Yogurt Shop retrial based on possibility of false confessions
- Jurors from false confession case call for recorded interrogations
- Recording interrogations makes loads of sense
- Expert: Yogurt Shop case a prime example of false confessions
- False confessions a "systematic feature of American justice"
- Recording confessions saves much grief for police
- Police interrogation a 'guilt presumptive' process
- Would you confess to a crime you didn't commit to save your life?
- If CIA can record interrogations, so can police
- Abilene PD requires recording interrogations
- El Paso conference brought together top minds to prevent false confessions
- Why record interrogations?
- Juries need more, better information to prevent false convictions