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 August 15, 2010 by Walter Reaves

What have we learned from exonerations? - apparently nothing

Michael Green walked out of a Harris county courtroom several weeks after spending 27 years for a rape he didn't commit. The story was a familiar - a bad eyewitness identification, disproved by DNA evidence. The story is familiar because most of the exoneration involved bad ID's. That's not surprising, since studies show eyewitness identifications are not nearly as reliable as everyone believes. You would think - or at least hope - that these exonerations would give credence to these studies, and cause prosecutors to look closely at cases that are based solely on eyewitness ID's. Well keep hoping.

There is an incredible disconnect between what people read about, and how that applies to their own life. You read about bad things happening to people, and you think nothing like that could happen to you. The same concept applies to eyewitness cases - prosecutors know about them, but they don't think it could happen in their cases. After all, the police officers they work with are good guys, and wouldn't bring a case if they aren't sure the defendant is guilty. Well guess what - the prosecutors in all the 270 plus exonerations probably thought the same thing.

I realized this when talking with a prosecutor last week about a case, where an identification was made in questionable circumstances. There were a number of reasons why the ID could be bad, which I pointed out. The response I got was - yeah but he picked him out, why would he do that if it wasn't the guy. He knew about problems with eyewitness ID's, but he was convinced they didn't apply in this case.

I'm convinced this is always going to be the case. Prosecutors want to believe victims; no one, whether it be the prosecutor or the police officer, wants to tell them they are wrong. They are willing to overlook contradicting evidence because it's just an attempt by the accused to get off. And after all, the victim doesn't have any motive to identify the accused (at least in most cases).

We need to start handling these cases differently. So far changes in identification procedures have been the primary focus, but I'm not sure that is enough. Perhaps we need to treat eyewitness ID's like we treat accomplice witnesses in Texas - require corroboration.  Instructions might be another way, as well as greater use of expert testimony.  We need to do something though, or we have learned nothing from the individuals who have been required to years of lives to bring the problem in the open.

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Posted on June 9, 2010 by Walter Reaves

Don't rely on the DA to do your job

I recently came across a story because it involved DNA evidence. Evidence had been tested 10 years ago, and the defendant - Stephen Meyers - was identified last year as a match. As is typical,  odds were provided - a  1 in 1.6 million billion chance that the evidence did not come from the defendant.  In preparing for trial, the evidence was retested - and guess what. That one in 1.6 million chance came true - the new tests excluded the defendant! As a result, the case was dismissed.

The case has a lot to teach us. One is that the estimates provided are just that; they are nothing  but guesses, which have no place in a courtroom. The other lesson is that you cannot simply rely on older tests - even those that are incriminating. This was not a case where there were errors in testing. Instead, it was nothing more than new and more comprehensive test. Older tests were only able to look at several locations on the DNA molecule; results were given for each location. For example a person might be a type 1.1, 1.4 at location on 1.3, 1.5 at location two. If the defendant has the same types he is excluded. Newer tests look at more locations, which makes it more precise. If the defendant is excluded at any point, then he is excluded - i.e. cleared. Obviously, the more locations you look at, the better the chance of obtaining an exclusion.

What bothers me about this case is how the new testing came about - it was initiated by the DA. The defense lawyer apparently made no effort to re-test the evidence prior to trial. Instead, it appears they were prepared to attack the old evidence. Had it not been for the prosecutor, there is a good chance the defendant would have been convicted, and in prison as I'm writing this.

In my experience, prosecutors never challenge scientific evidence. If they have a 10 year old t est, they are going to run with it. If it's going to be challenged, it is up to the defense lawyer to do it. Kudos to the prosecutor here, who wasn't willing to blindly accept what the experts told him (even if they were just trying to make the case stronger)

I realize that this is not always a cut and dried issue. If the client is guilty, a retest will only provide stronger evidence of guilt. How do you know when to retest? In the end, you have to rely on the client, and your own beliefs. If you believe they are guilty, you must make them aware of the risks. If they are consistently maintaining innocence though, there is no excuse to not do everything possible to prove that, which would involve retesting.

Before the retest there was already plenty of evidence to suggest Meyers was innocent. The description of the suspect was short, fat and balding, while Meyers was tall and skinny. Not to mention almost  no evidence to establish he was even in the same town where the assault occurred. You might thing that is enough, but I have seen far too many cases where defendants were convicted even though they didn't even remotely resemble the description provided. The explanations are usually that the victim was under stress, and that appearances change. In other words, if you are relying on a bad identification you are flirting with disaster.

Lawyers must be advocates, which means challenging all the evidence. Scientific evidence has received a free ride too long. It is up to us to challenge it. Mistakes are made, and evidence is never as conclusive as the scientists tend to believe. Don't get in the situation where you could have proved your client's innocence, and didn't do so.

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