Saturday, October 8, 2011

The Cautionary Instruction: Some members of Wrongful Convictions Committee take issue with recommendations

The Pittsburgh Post-Gazette/Ipso Facto
October 7, 2011

The Advisory Committee on Wrongful Convictions issued its long awaited report  last month. The Committee Report was accompanied by an Independent Report prepared by the law enforcement and victim representative members of the committee which can be found starting at Page 309.

Last week, The Cautionary Instruction explored some of the fundamental differences between the two reports. Today’s blog will examine the contentious positions espoused in the competing reports regarding eyewitness identification.

According to the Committee Report at least a dozen states have adopted practices for obtaining and preserving eyewitness identifications. I recently blogged about the New Jersey Supreme Court’s comprehensive decision regarding eyewitness identification.

With all the focus on eyewitness identification one might think a consensus was reached in Pennsylvania on best practices. That is not the case and here is why.

The Committee Report recommended, in part, the statutory adoption of a series of procedures for conducting lineups. Initially, the Committee Report recommended that lineup fillers, those individuals who are not suspects, should match the description of the culprit, not the suspect. That seems logical and the Independent Report takes no issue with that recommendation.

The acrimony begins with pre-lineup instructions. The Committee Report recommended instructions that included:

• The culprit might or might not be present;
• The witness should not feel compelled to make any identification;
• Blind administration, the officer conducting the lineup must not know the suspect;
• Police will continue to investigate the incident regardless of whether an ID is made.

The Independent Report suggested, “This proposal is unnecessary, impractical, and misguided.” The Independent Report took issue with the instructions, “The proposed statute further requires police at any identification procedure to issue misleading instructions to the witness.” Such as, “the investigation will continue,” even if the police intend to terminate the investigation following the lineup.

The Independent Report further argued that, “Blind administration is logistically impossible in small- and medium-sized police departments.” Many of the hundreds and hundreds of police departments in Pennsylvania lack the manpower to provide “blind” lineups.

The Committee Report also recommended that after identification is made, “A statement of the witnesses confidence in the identification should be obtained.” The Independent Report attacked the confidence statement with particular vehemence -- “A ‘confidence statement’ is designed to facilitate gamesmanship at trial.” The Independent Report went on to suggest, “Proposals that encourage such disingenuous tactics only further undermine the overall legitimacy of the neutrality of the principal [Committee] report’s recommendations.”

All the acrimony aside, both reports agreed that training for police officers on non-suggestive identification procedures would be helpful in identifying the guilty and clearing the innocent.

Edward M. Marsico, Jr., Dauphin County District Attorney recently wrote in the Harrisburg Patriot-News, “The faulty assumptions and predetermined conclusions from the academics and criminal defense attorneys that dominated the committee produced a fundamentally flawed report that deserves additional scrutiny.” Scrutiny will continue next week, with a look at false confessions.

       Visit Ipso Facto

No comments:

Post a Comment