Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

I just got back from a program on Actual Innocence at the Center For American and International Law in Plano. This was one of many seminars that have been conducted the last several years. (the impact of those seminars needs to be the subject of another post)

The focus was on DNA evidence, false confessions, and eyewitness issues. Education on eyewitness testimony is sorely needed, since mistaken identifications have been involved in a substantial majority of wrongful convictions (around 75%) Unfortunately, most jurors, and many lawyers, have mistaken beliefs about the reliability of eyewitness testimony.

There were two points I thought were significant. One concerns juror's beliefs about such testimony. Research has established that most people believe a person is more attentive when they have a gun pointed at them, or are otherwise under stress. They also believe witness' who are certain of their identification are more accurate. They also believe most people are able to accurately estimate time. Research has also established that the truth about those factors is exactly the opposite; you are less accurate when under stress, witness' who are certain of their identification are no more accurate than those who have doubts, and people are terrible at estimating time.

A more disturbing issue was a discussion of the inability of cross-examination to reveal mistaken identifications. Cross-examination is generally effective at uncovering witnesses who are lying, or trying to shade the truth. Eyewitnesses seldom intentionally lie; instead, they sincerely believe they are testifying truthfully. While you can point out the problems with eyewitness identifications, as discussed above, jurors beliefs about many of those problems are exactly the opposite, and as a result, they are unwilling to accept expert testimony. That leaves you with no effective way to uncover a mistaken identification.

Every lawyer knows how powerful eyewitness testimony is. If you don't have something really compelling to rebut it, it is impossible to overcome. There have been many great lawyers who have been unable to convince jurors that an eyewitness was mistaken.

So how do you handle the problem? One solution is to change people's beliefs about eyewitness identification. That requires aggressive education, and time; even with that, it is doubtful that will ever be successful. An easier fix is for Courts to become more aware of these issues, and scrutinize identifications more carefully. Prosecutors also need to be more skeptical, and not blindly accept all eyewitness identifications, even where they appear sincere. Instructions might also help, and are being given in some jurisdictions.

Defense lawyers have a difficult job in handling an eyewitness case. We can no  longer rely on cross-examination. We must use the research and experts that are available, and do the best we can to show jurors the view the witness had. Maybe if enough lawyers consistently take this approach, public awareness will start to slowly increase.

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According to Rebecca Blank, an economist at the Brookings Institute, the current low unemployment rate may be attributed in part to the increase in the number of people in prison. According to Blank, the rate would be about  a half point higher were it not for the people in prison; the difference for black males is closer to a full percentage point.

Her theory makes sense. Most people who end up incarcerated have limited skills, and if they were out would be competing for the lower paying, unskilled positions. With fewer people competing for the positions, the chances of getting a job are higher. She also notes the impact incarceration has for those released from prison. They generally have a hard time finding employment, and may remain unemployed for a longer period of time.

One thing she stated that I thought was interesting was that drug use hasn't increased over the last several years. We are simply locking up more people, for longer periods of time.

incarcerating individuals has effects on society that few people think about. Not only do the taxpayers have to pay for it, they also have to pay for the support that has to be provided to the families of those in prison. Once they are released, we still have to pay for supporting those who cannot find a job. If we thought through the collateral consequences, programs aimed at avoiding incarceration would make a lot more sense.

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Grits recently posted on the problem facing McLennan County caused  by jail overcrowding. McLennan County commissioners recently started discussing whether they need to build a new jail, or contract with a private company to build a new jail. Grits pointed out something I was not aware, although it doesn't surprise me; we have the second highest incarceration rate among counties with more than 200,000. Over half the people in jail are awaiting trial, and more than 20% of those only have misdemeanor charges.

He proposes a couple of things, which I doubt commissioners will seriously consider. One is to increase the use of tickets  for certain non-violent offenders. Another was to consider alternatives. like the day reporting program in Tyler. Those obviously make sense, but McLennan County doesn't exactly have a reputation for innovation.

The Courts in McLennan operate efficiently, and make effort to dispose of cases quickly. The number of days a defendant has been in jail is something the judges always know. The problem is that they don't have control over what is being filed. The District Attorney's office in any county has to take primary responsibility for reducing the jail population. They are the ones who file the cases, and decide what charges to file. They are also the ones who basically decide what cases are going to trial; if they don't make reasonable offers, you can't expect defendants to accept them. They also have influence on bail decisions, which forces many defendants to stay in jail while waiting for trial. If you want to reduce the jail population anywhere, the quickest way to do so is to have the District Attorney become involved. In most cases though they are more concerned with putting people in jail, then getting them out.

I remember when the new jail was built. At the time, it was projected to meet the needs of the County far into the future. I had been around long enough to know that was nothing more than a dream. If you the space, it is going to get filled, usually sooner rather than later. The same will be true of any new jail that is built Unless everyone starts concentrating more on keeping people out of jail, we will never be able to keep up with the demand for jail space.

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