Chiefs' push to weaken eyewitness ID improvements could boost market for defense experts

Law enforcement interests, both through the Texas Police Chiefs Association and individually, are seeking to undermine the new model eyewitness ID policy from Sam Houston State University's Law Enforcement Management Institute of Texas (LEMIT), produced under the auspices of a bill, HB 215, passed last year at the Texas Legislature.

LEMIT did a fine job creating the model policy (pdf), by most expert accounts, closely following the large body of research developed in the last three decades on preventing eyewitness errors. Many of their recommendations were included in best practices from the National Institutes of Justice as far back as 1999, so for the most part these are not new ideas. But some chiefs are balking at prescribing neutral witness instructions, as well as using blind administration and presenting photos sequentially. Animated by these complaints, the police chiefs association reportedly is attempting to develop its own, watered-down policy to promote among its members in lieu of the official one.

The first shot across the bow of LEMIT's model policy at the capitol came in a letter from McAllen Police Chief Victor Rodriguez (uploaded here) to Senate Criminal Justice Committee Chairman John Whitmire, offering a stream of red herrings and misinformation about the law and the new model policy. See also an informative FAQ (pdf) created by LEMIT in response to agency questions.

Under the new statute, LEMIT produced a model policy but law-enforcement agencies are not required to follow the university's advice. Local departments must enact their own "detailed written policy," including specific "procedures" in several different areas, by September of this year, but the law does not require them by any means to adopt the model. Soon after the Legislature left town, however, the Texas Court of Criminal Appeals gave departments a big, extra incentive to use LEMIT's version.

Before getting to that, however, it's worth disputing Chief Rodriquez's utterly bogus, central claim that "unless a law enforcement agency chooses to risk evidentiary admissibility of a photograph or live lineup in a criminal matter, that agency must prove up adoption of the LEMIT policy or the 'credible research' or proof of '[common acceptance]' behind that agency's adopted procedures." This is ... how may we put it delicately? A lie.

The new statute specifically says that "Evidence of compliance with the model policy or any other policy adopted under this article or with the minimum requirements of this article is not a condition precedent to the admissibility of an out-of-court eyewitness identification." (Emphasis added.) So there is literally zero, nil, zilch, nada chance that eyewitness testimony won't be admitted because of this law. "Our side" considered it a loss (I was lobbying for the Innocence Project of Texas on the subject), but the law simply did not give criminal defendants the means to keep eyewitness testimony out of evidence if lineups don't follow written policies, nor if written policies are inadequate.

Ironically, though Chief Rodriguez wants to blame the Legislature for his woes, the much more significant penalty for failing to follow best practices was laid down in October by the Texas Court of Criminal Appeals in a case called State v. Tillman (pdf).  In Tillman, Texas' highest criminal court ruled that a judge abused his discretion by failing to allow expert testimony to tell a jury about flaws in a police lineup - a truly landmark ruling for that particular court.

Combined with HB 215, however, that ruling takes on even greater weight, informing us what the real "penalty" will be if departments adopt policies not based on the LEMIT model policy or credible research: The county may have to pay for expert witnesses for indigent defendants - or allow expert testimony for defendants with their own counsel - to explain how deviation from best practices might harm the accuracy of identifications. In other words, if a local department chooses not to follow the LEMIT policy, they have a right to do so and all witness testimony will still make it into evidence. But if a department failed to follow key best practices - particularly if they overtly chose to do so by deviating from the LEMIT policy - it seems hard (at least for this non-lawyer) to see how judges could interpret Tillman any way other than to require judges to admit expert testimony critical of the deviant policy - to do otherwise, according to Tillman, would constitute an abuse of discretion..

So no, eyewitness testimony will NOT be thrown out if local departments don't use LEMIT's model policy. But counties may have to pay for expert witnesses that wouldn't be necessary if law-enforcement agencies based their policies on science instead of habit and folklore. Further, LEMIT's model policy could provide courts a handy guideline as to whether a local policy deviates from best practices. Though at this point we may only speculate, Grits won't be surprised if the LEMIT policy becomes the de facto standard by which Texas judges analyze whether the defense gets a Tillman expert.

Finally, at the Innocence Project of Texas (IPOT, from whom your correspondent draws his main paycheck) we're planning to ask under open records for eyewitness ID policies at more than 1,000 Texas law-enforcement agencies this fall after the deadline passes for policies to be finalized. IPOT will evaluate policies based on compliance with LEMIT's published model policy, grading each to identify which followed best practices and which are deficient. So now judges have a standard to judge whether a deviant policy or procedure violates best practices (LEMIT's model policy), and by the end of the year they'll a handy list of departments whose base policies fail to pass muster.

It's true, then, that there will be a lot of pressure on local departments to simply adopt the LEMIT policy, with most of it coming from the judiciary and the court of public opinion, as opposed to any language in HB 215. Eyewitness testimony in all cases will remain admissible under the new law, regardless of what local policies are adopted or whether they're followed. But the CCA has created a greater incentive for compliance in Tillman than the Lege could last year muster. Color Grits unsurprised that there are police chiefs out there grousing about the new statute and the contents of the model policy, even if their complaints come a day late and a dollar short.

See related Grits posts:

• Model eyewitness ID policy includes sequential presentation
• Public hearing on eyewitness ID model policy
• Will new Texas eyewitness ID law reduce false convictions?
• Onus on state, local departments to improve eyewitness testimony
• Court of Criminal Appeals: Trial court abused its discretion by disallowing eyewitness ID expert
• Model policy under development on eyewitness ID procedures
• Slow but steady progress toward improving eyewitness identification
• 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
• Why Carl Reynolds would make a lousy witness