Posted on January 16, 2012 by Walter Reaves

Has the Court buried its head in the sand on eyewitness ID's

Last week the Supreme Court decided a case that some thought might produce additional protection against bad eyewitness ID's. I wasn't so hopeful, and unfortunately I was right. As it turned out the only positive thing that came out of the decision in Perry v. New Hampshire is the dissent from Justice Sotomayor.

The facts were pretty straightforward. Police responded to a call about someone bringing into cars in a parking lot. They detaineda young man in the parking lot, and while some of the officers talked to him others went to talk with the witness. When asked to describe the suspect she looked out the window and pointed to the young man standing between two police officers, and said "that's him." The issue was whether that process was unduly suggestive and the decision came down to whether the police were responsible for the suggestive procedure. Since the court found they were not, they concluded there could be no due process violation.

Over the last few years the reliability of eyewitness identifications has been identified as the single biggest factor in wrongful convictions. Research shows they are terribly unreliable, and sometimes no more accurate than a guess. The court's have started to recognize this - which was the reason for optimism in the case. While the they recognize the problem though, they refuse to address it.

The Court in Perry continues to rely on the traditional concepts of cross examination and zealous advocacy. The idea that a skilled lawyer can poke holes in a bad ID is appealing. However, it is not accurate. Many of the cases involving wrongful convictions involved skilled lawyers who did everything they could. Despite everything we know, courts, jurors and prosecutors still hold on to the belief that if a witness identifies a defendant then it must be them.

The courts are supposed to be gatekeepers of evidence. I've commented before about what a poor job they do of that in cases involving scientific evidence. They do an even worse job here. Evidence that is not reliable should not come in - but that is exactly what the court sanctions in Perry. Unless the police had some hand in securing the identification, a court has no authority to keep it out. After all, its up to the jury to make those decisions.

The end result is that its business as usual. Defendants will keep being convicted on identifications that are unreliable, and judges will turn the other way. There has to be a better solution, and we need to find it fast.

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Posted on August 24, 2011 by Walter Reaves

Is help on the way for bad eyewitness ID's

If there is one thing DNA has done over the last several years it's demonstrate how unreliable eyewitness identifications are. Out of the 250 exonerations so far, 190 of them have involved mistaken identifications. Social scientists and lawyers have known for years that such identifications are not nearly as accurate as everyone believes. The human brain is not a camera, and identifications and memory are based on a number of external factors. I've written about this before - here and here and  for example, and will no doubt continue to do so.

Even with knowledge that eyewitness IDs are flawed, jurors and prosecutors continue to accept them without question. Courts likewise allow identifications, even when the circumstances surrounding the ID are suspect. Years ago the Supreme Court set out guidelines for challenging eyewitness IDs. Those guidelines done almost nothing to limit the use of eyewitness identification in court. The basic premise is that a suggestive identification violates due process. The problem has been in determining what is or is not suggestive. In practice if a witness comes into court and identifies the person, and claims that identification is based on what they saw, it is going to come in.

The Supreme Court may be stepping in.  Adam Liptak of the New York Times wrote about a case the Court agreed to hear earlier this year -  Perry v. New Hampshire. How far they will go is the big question. The question before the Court is extremely limited -  whether due process is only implicated when the suggestive circumstances are the result of police conduct.. As a result, the immediate impact of any holding may not be great. The court could have a huge impact by addressing the broader issues in eyewitness ID's, and emphasizing the role of the trial court as the initial "gatekeeper".

There is at least some hope that the tide is turning, and that jurors will be more discriminating in accepting eyewitness testimony. It's probably too much to ask that prosecutors and judges will follow suit, but you can always hope.

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Posted on July 12, 2011 by Walter Reaves

What happens when an expert changes their mind?

If you follow this blog you know I am critical of the use of forensic science in criminal cases, especially when guilt or innocence depends on the opinion of some expert. In my opinion, forensics should never be used to determine guilt or innocence. Far too often the opinions put forth by experts are subjective, and based on inherent biases. Science also changes - or at least the understanding of certain things changes - which may make an opinion that was valid when given, no longer acceptable. Witness arson cases, where thousands of convictions have been based on nothing more than myths and old wives tales.

So what happens when an expert is called upon to reevaluate their opinion, and decides it is no longer valid. That was the situation presented to the Court of Criminal Appeals in Ex parte Neil Hampton Robbins. Mr. Robbins was charged with capital murder, based on the death of his girlfriend's 17 month old child. The state's case was based largely on the testimony of a medical examiner, Dr. Patricia Moore, who performed the autopsy. She testified that the child died from asphyxia due to the compression of her chest and abdomen. She was subsequently called on to reevaluate that opinion, and stated she could no longer stand by it.

 The problem any defendant in this situation faces is establishing a legal basis for relief. Once a defendant is convicted, he must establish actual innocence to obtain relief. That is an extremely high burden, which is rarely met in any cases other than those involving physical evidence - such as DNA. In this case Mr. Robbins fell far short of meeting that burden, because Dr. Moore testified that her current opinion was that the cause of death was undetermined. Essentially she could nott rule out that the death was the result of asphyxiation , but she also could say it was. The endresult is that Mr. Robbins was denied relief. In a issenting opinion, Judge Cochran pointed out that the case " raises a novel and difficult issue for the criminal justice system." She agreed that actual innocence had not been established, but believed Mr. Robbins should get a new trial because he did not receive a fundamentally fair trial based upon reliable scientific evidence. A view, which unfortunately was only shared by three other justices; she believes that the case should be retried to ensure the accuracy of the verdict.

 

I believe justice Cochran is spot on. How can you have any faith in the criminal justice system, if a defendant is based on evidence that would probably not support a conviction at the current time. In other words if Mr. Robbins were retried he would probably be found not guilty. Yet he will have to remain in prison probably for the rest of his life because he cannot meet some arbitrary legal definition.

 Mr. Robbins also tried an alternate approach which was to argue that Dr. Moore's testimony was false. The court rejected that claim, because the testimony was not in fact false.

Along with  justice Cochran's opinion, the bright spot in this case was the opinion of the newest justice, who has recently been appointed. Judge Alcala dissented, believing Mr. Robbins should be granted relief because he was denied due process of law.

 As long as the criminal justice system is going to rely on scientists to determine guilt or innocence, it needs a process to remedy this type of situation. It occurs far too often, and defendants basically have no relief. That is not right, and hopefully someday at least one other justices will agree.

As a side note, the Texas Legislature has actually addressed this in the last two sessions. A bill was introduced - and approved - to reform the habeas statute to allow this type of claim. Regrettably, it has died both times as a political casualty of arguments over other bills. Even though everyone agreed, it has still not passed. Maybe one day partisan politics will allow a good piece of legislation to survive - at least one can hope. For the time being, defendants like Mr. Robbins have not remedy.

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