Friday, September 07, 2007

California Lege sends innocence bills to the Governator

The California state legislature has sent three bills related to innocence topics to the Governor for his signature or veto, according to a column in the San Jose Mercury News by the state Senate majority leader. The bills mirror ideas that have been proposed but never gained much traction here in Texas:

Electronic recording of custodial interrogations would help end coerced confessions and protect both defendants and the police. SB 511 (Alquist) would mandate recording of the entire interrogation, including the Miranda warning. Several other states already require recording of the full interrogation, including Iowa, New Mexico and Wisconsin. Prosecutors and law enforcement officers praise the practice in every state where it is now required.

Misidentification of perpetrators by eyewitnesses causes the most wrongful convictions. SB 756 (Ridley-Thomas) would require the attorney general to develop voluntary guidelines for conducting lineups based on documented best practices.

The third proposed law would curb false testimony by jailhouse informants by requiring corroborating evidence for all such testimony. Jailhouse informants have strong reasons to lie because they are offered leniency in return for information. SB 609 (Romero) would not affect a large number of cases in California, but it would provide important protections, particularly in death penalty cases.

Just a couple of comments on each of these. First, while I strongly support recording custodial interrogations, research I've run across recently makes me think the devil still may be in the details of how recording is implemented. Researchers have found that a "camera perspective bias" can sway viewers to assume a question is voluntary when it's only focused on the defendant. Camera angles that include the questioner, or using two cameras that view both parties, captures more context and reduces the likelihood a viewer will wrongly consider a confession voluntary.

The Cali bill on identification procedures appears as weak as the senate bill that died in Texas this spring waiting to be set for a vote by the House Calendars committee. It commands the California AG to produce "voluntary" guidelines for lineup procedures. There's really no sense in that - the jury is in on lineup procedures, and no credible research supports the old practices like using group photo arrays, having biased investigating officers perform lineups, failing to warn that the perpetrator may not be in the pictures, and showing witnesses the same suspect in multiple lineups until they finally pick them.

Texas' lineup reform bill that died this year, SB 799, would also have made guidelines "voluntary," which to me is like telling police and prosecutors they can convict innocent people "if they want to." Given the scientific consensus on the topic, to me anything short of a requirement to adopt lineup best practices cannot be justified. I'm still hopeful a Texas legislative committee will tack this subject on to its interim study topics, which should be announced this month.

Finally, the Cali bill on jailhouse snitches deserves to be replicated in Texas and elsewhere. The proposed statute declares that "a court may not convict a defendant, find a special circumstance true, or use a fact in aggravation based solely on the uncorroborated testimony of an in-custody informant." Currently Texas law allows uncorroborated jailhouse snitch testimony in all those cases. Texas does require corroboration for informants in drug cases, a change made after the "Tulia" debacle, but not for jailhouse snitches, which are a particularly unreliable breed who deserve similar statutory skepticism.

Obviously I hope the Governator will sign these California bills into law, and also that legislators in Texas all watch to see what it looks like when lawmakers actually care about preventing innocent people from being convicted. This year all the bills aimed at reducing wrongful convictions failed to pass, and Texas only approved new laws that made convicting innocents more likely.

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