Friday, August 1, 2014

The Cautionary Instruction: A rocky start -- Public safety director takes on the DA

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
August 1, 2014
Last week, I wrote about Pittsburgh Public Safety director Stephen A. Bucar’s charge: Lead by example. He said after his confirmation hearing “the way forward is to build leadership that instills respect in the rank and file… [and] reach out to communities that have seen a deteriorating relationship with the department.”
Then his first step as public safety director was to make a questionable challenge to the authority of the district attorney. That won’t do much to boost confidence in the police and criminal justice system. He issued a statement saying that the city police bureau will not adopt practices on eyewitness identification implemented by Allegheny County District Attorney Stephen A. Zappala Jr.
“Although the model is endorsed by certain academic and research facilities, there is dissenting opinion in those same communities that disputes the conclusion that the best practice for eyewitness identification procedure lies with a sequential process rather than a simultaneous process,” Mr. Bucar said.
United States Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion more than thirty years ago, “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’
More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous.  One study by University of Virginia Law School professor Brandon L. Garrett found that eyewitness misidentifications contributed to wrongful convictions in 76 percent of the cases overturned by DNA evidence.
Even U.S. Supreme Court Justice Sonia Sotomayor has acknowledged the shortcomings of eyewitness identification. She wrote, "eyewitness identifications' unique confluence of features — their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process — can undermine the fairness of a trial."
According to the Post-Gazette, Bucar cited debate in the scientific community over the most effective means to utilize eyewitness identification. Nancy Steblay, a leading eyewitness scientist from Augsburg College in Minneapolis, said that’s not the case anymore.
A 2011 review she co-authored reported that the sequential process is superior.
“We have over 70 studies we’ve reviewed and verified, and you see the pattern over and over again for sequential,” Ms. Steblay said. “In an enormous set of studies, you’re always going to find some outliers. But that’s what science does — look for the pattern.”
Zappala is advocating for the sequential process. “Although it’s not perfect, it’s far superior — significantly superior — to the simultaneous procedure,” said Steblay.
In fact, this area of the law is rapidly changing. The Pennsylvania Supreme Court ruled recently that criminal defendants have the right to offer expert testimony about the reliability of eyewitness identification. The decision overturned a 20-year prohibition against using such experts in Pennsylvania.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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