Sunday, July 29, 2012

How best to tell jurors about shortcomings of eyewitness ID

Texas law enforcement agencies must have eyewitness ID policies in place by September 1 of this year which may, but are not required to, follow a "model policy" developed by the Law Enforcement Management Institute of Texas at Sam Houston State University. The Texas Court of Criminal Appeals has said that when police don't follow (an undefined set of) best practices, judges would be guilty of abuse of discretion if they don't allow a defense expert to explain the problems with eyewitness IDs. Even if agencies don't adopt the full model policy, however, and judges allow such experts, Texas statutes and case law mandate no special jury instruction regarding eyewitness testimony. Remarkably, in New Jersey, the Supreme Court recently took it upon itself to issue such a requirement. Reported the New York Times (July 20):
Almost a year after the New Jersey Supreme Court made a sweeping ruling aimed at resolving the "troubling lack of reliability in eyewitness identifications," it issued instructions ... for judges to give jurors to help them better evaluate such evidence in criminal trials.

A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness's ability to make an accurate identification. 

Factors like the time that has elapsed between the commission of a crime and a witness's identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn.

And in cases involving cross-racial identifications, judges were directed to tell jurors that "research has shown that people may have greater difficulty in accurately identifying members of a different race."

"You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness's identification," the instructions say.

The new instructions caution jurors that eyewitness testimony must be scrutinized carefully.

"Human memory is not foolproof," the instructions say. "Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex."

The new instructions, which take effect on Sept. 4, address the problems the State Supreme Court identified last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony, which the United States Supreme Court set out in 1977, was outdated and should be revised.

Although it applies only in New Jersey, the ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification.

The new instructions are expected to be influential as other state courts look to revise their approach to eyewitness identification, several legal experts said. 
Erroneous eyewitness testimony has been by far the most common cause of false convictions among DNA exonerees and these instructions go a long way toward reducing the chance of false convictions. Though falling short of requiring corroboration of eyewitness testimony - which Grits thinks is justified when the witness had never previously seen the defendant - these sorts of cautions go a long way toward rebutting false assumptions by jurors which have contributed to so many high-profile miscarriages of justice.

The New Jersey jury caution could have implications for Texas courts as well. The Court of Criminal Appeals cited the New Jersey ruling in their own landmark eyewitness ID case last year, State v. Tillman. The Tillman case said judges abuse their discretion if they don't allow expert witnesses to educate jurors when police fail to follow best practices, but the ruling did not identify in detail just what those best practices are. Arguably the SHSU model policy provides significant guidance, but the New Jersey rulings provide an especially strong basis for making such a judgment.

Ironically, Texas' statute was designed to give more deference to law enforcement, but the Tillman case means when proper procedures aren't followed, counties must pony up (in indigent cases) for a defense expert. By contrast, New Jersey's approach informs the jury of essentially the same limitations on eyewitness testimony without having to pay for additional expert testimony. Despite the Texas Legislature's intention to cater to law enforcement by not including a jury instruction, New Jersey's approach - creating a hard and fast rule - would probably be simpler for police, prosecutors and jurors alike.


Anonymous said...

Eyewitnesses are not to be trusted.

Gritsforbreakfast said...

Not true at all. They're just more prone to error when they've never seen the suspect before.

Thomas R. Griffith said...

Hey Grits, never thought we’d be thanking New Jersey (the home of fake hot sauce) for stepping up and doing the right thing.

I just wish that they’d taken time to cover instances where crime victims originally describe suspects of one race and proceed to Positively Identify suspects of a totally different race at live Show-Ups, where detectives catch it and allow victims to re-describe suspects and seek charges anyway.

In an effort to cover all bases and since it appears that I’m the only peckerwood in Texas’ history to be positively I’d as a black skinned gunman, where the detectives caught the gross discrepancies during the Photo Lineup and again during the live Show-Up only to seek charges vs. doing the right thing, I’ll be sending the New Jersey Supreme Court copies of; the HPD police incident report, certified case files & 14 x 11 color police photo. Thanks.

Thomas R. Griffith said...

NOTE: Eyewitnesses can't be trusted when they describe one thing and positively I'd another thing. It's a crime to file a false police report and another crime when a victim and the police team up to make it stick to save face. When everyone catches it & everyone ignores it like it never even happend, we get a system that can't be trusted.

DLW said...

When I was an Assistant District Attorney, my boss assigned a robbery case to me which was my first felony. A young man had robbed a convenience store on the west side of Abilene and the clerk had given the police a complete description of the robber.

Within 15 minutes of the robbery an APD officer found a young man waiting on a bus at the Greyhound station in Central Abilene. In spite of the fact that the guy at the bus station didn't look anything like the robber and wasn't dressed anything like the robber and had no money on him except enough for a bus ticket he was taken into custody and driven to the store that was robbed.

The officer had him stand outside the cop car in handcuffs while another officer inside the store asked the clerk if that was the guy. The clerk said yes.

I told my boss that I believed we had the wrong guy. The boss told me that if the clerk insisted it is the right guy, pick a jury and let them decide.

That's what I did and the clerk insisted under oath that in spite of the fact that the young man on trial looked nothing like the description of the robber she had given the officers, it was indeed the robber.

The Jury took 5 minutes to render the 2 word verdict. All 4 women on the Jury came out of the jury box to hug the defendant. I made a hasty exit for the stairwell but 3 of the males on the jury caught me and wanted to know why we were wasting their time.

The case came out the right way but I have been haunted for 36 years by the prospect that it just as easily could have ended in a conviction with a different set of 12 people in the jury box.

From that experience, I learned that eyewitness ID isn't always the end of it and I learned that prosecutors have no business passing the buck to a jury for political reasons.

Unknown said...

All one has to do to learn just how unreliable eyewitness testimony can be is go on line and Google "eyewitness testimony" then you can set back and read study after study, some going back 40 years. It's not like this is anything we haven't known for some time now.

We don't allow lie detector results in court because there is a chance that somebody can lie to the lie detector and get away with it. Why do we want to put so much stock in eyewitness testimony? Look at the cases reversed where people were convicted on eyewitness testimony and freed by DNA evidence.

To me this all is another example of the over zealous; win at all costs, prosecutorial mind sit that seems to permeate the DA offices across the country.

Thomas R. Griffith said...

Hey DLW, now that you've shared with us that you just went along for the ride because there was a pay check waiting on you and you were simply ordered to waste taxpayers funds & it's bothered you since 1976 ish -

*I challenge you today, to do something that will cure you of this dilemma, allowing you to enjoy your golden years and make the lives of others bearable.

Join the PNG Team and offer guidance to folks that are being ignored by the picky 'projects', post conviction units and the Texas Board of Pardons & Paroles (Clemency Section) based on the 'TYPE" of evidence (or lack of DNA) showing / proving ones innocence. You could co-author letters to "whom it may concern" on behalf of those having ample proof of innocence. You could have your own mini column & tell the world about your horrible career as an ADA and what you plan to do about it in your effort to right past wrongs.

You could do a lot more than simply dropping a few paragraphs on GFB readers expecting us to believe it because you say you did this and that. You could've quit and mowed lawns but you stayed and who knows how many nolo contendere marks are on your belt? You can redeem yourself today or not. You don’t owe anyone anything except for yourself. Thanks