CREATORS: Eyewitness Identification Under Scrutiny

Matthew T. Mangino
CREATORS
August 12, 2025

For decades, eyewitness identification was considered the gold standard when it came to evidence used to gain a conviction.

In the famous courtroom drama "12 Angry Men," rated by the American Bar Association as one of the 25 greatest legal movies of all time, juror No. 8, played by Henry Fonda, earnestly advocated for a not-guilty verdict.

Fonda started out as the only not-guilty vote. The turning point of the deliberations occurred when an older juror recalled that the state's prized eyewitness, who had observed the murder through her window as she lay in bed, had red marks on her nose left from wearing eyeglasses. The older juror asked a reserved, bespectacled juror, "Do you wear your glasses when you go to bed?" The bespectacled juror responded, "No, I don't. No one wears eyeglasses to bed."

Eyewitness identification can be convincing, but is it reliable?

More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous. Advances in the social sciences and technology have cast a new light on eyewitness identification.

Hundreds of studies on eyewitness identification have been published in professional and academic journals. One study by University of Virginia Law School professor Brandon L. Garrett found that eyewitness misidentifications contributed to wrongful convictions in 76% of the cases overturned by DNA evidence.

U.S. Supreme Court Justice Sonia Sotomayor has acknowledged the shortcomings of eyewitness testimony. 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."

What can cause an eyewitness to misidentify a suspect? There are a number of factors: Poor lighting, the crime occurred quickly, the presence of a gun and the fact that the perpetrator is a different race than the witness. The police can, as well, intentionally or unintentionally influence an eyewitness's identification.

There are four basic rules proposed by researchers to help promote valid police identifications, including: Who conducts the lineup; instructions on viewing the lineup; the structure of the lineup or array; and immediately obtaining a confidence statement for the eyewitness.

When it comes to the "who," research supports double-blind lineups administered by a police officer who is not familiar with the suspect and who is not one of the primary investigators on the case. The instructions are equally important. For instance, a photo array should be presented sequentially rather than as a group without comment by the officer displaying the array. Research studies have revealed that both practices decrease the pressure on witnesses to pick someone and guard against undue influence.

The structure of the lineup is another area where bias can seep into the process. If the eyewitness described the suspect as a white male with long hair, approximately 6 feet, 4 inches tall, with a thin build, it would not be fair to have the suspect and four short, overweight, bald men in a lineup.

Finally, a confidence statement taken from the witness immediately after the array or lineup will provide the police, the suspect and ultimately jurors with a clear understanding of just how sure — or confident — the eyewitness is in her identification of the suspect.

Former U.S. Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion nearly 35 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!'"

No one can challenge the impact of eyewitness identification. However, it is clear from the research and the growing number of exonerations that the reliability of eyewitness identification falls far below its impact. Without meaningful reform, the threat of convicting the innocent continues.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

To visit Creators CLICK HERE

SCOTUS makes Sixth Amendment confrontation ruling

The U.S. Supreme Court sent the case of an Arizona man convicted of drug possession back to the state courts, reported Amy Howe of the SCOTUSBlog. Jason Smith argued that when an expert witness testified for the prosecution about drug analysis performed by another forensic scientist, it violated his right under the Sixth Amendment “to be confronted with the witnesses against him.”

In an opinion by Justice Elena Kagan, the court agreed with Smith that the requirements of the Sixth Amendment’s confrontation clause normally apply to a scenario like the one presented by his case – that is, when an expert appears before a jury to relay the statements of an absent analyst in support of her opinion, and the analyst’s statements only provide that support if they are true. But the justices sent the case back to the state courts for them to determine whether the absent analyst’s statements qualified as “testimony” – another criteria for the confrontation clause to apply.

The case came to the court after police officers executing a search warrant found methamphetamine and marijuana in a shed on a property owned by Smith’s father. Greggory Longoni, a forensic scientist from the state’s Department of Public Safety, testified at Smith’s trial that the substances that the officers found were indeed illegal drugs. Longoni relied on testing conducted by Elizabeth Rast, another DPS scientist who no longer worked for the state and did not testify. Smith was convicted and sentenced to four years in prison.

Smith appealed his conviction, but a state court ruled that the use of Longoni’s testimony did not violate the confrontation clause because Longoni had merely offered his independent opinion, relying on analysis prepared by Rast. Smith had been able to cross-examine Longoni, it concluded, and he could have subpoenaed Rast to testify.

The Supreme Court on Friday disagreed. Writing for the court, Kagan explained that Smith could only prevail if Rast’s statements were used at trial to show that what she said was true (as Smith argued), rather than to serve as the basis for Longoni’s opinion (as the state contended). For purposes of testimony like Longoni’s, Kagan wrote, “truth is everything.” “If an expert for the prosecution conveys an out-of-court statement in support of his opinion,” she reasoned, “and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts.” Or to put it another way, Kagan continued, the out-of-court statements are useful to the prosecutors precisely because they are true.

In this case, Kagan observed, Longoni could only testify about his opinion that the substances found on the property were illegal drugs because “he accepted the truth of what Rast had reported about her work in the lab — that she had performed certain tests according to certain protocols and gotten certain results.”

Kagan stressed that experts like Longoni can still “play a useful role in criminal trials.” For example, she noted, Longoni could testify about how the lab where Rast worked normally operated, or about forensic guidelines and techniques more broadly. But most of his testimony “took no such permissible form,” she concluded.

The court did not weigh in on the separate question whether Rast’s out-of-court statements were “testimony,” so that the requirements of the confrontation clause apply. Smith did not raise that issue in his petition for review, Kagan wrote. So the court sent Smith’s case back to the state courts for them to determine whether Rast’s records were testimonial (as well as whether he had waived his right to broach that question).

Justice Clarence Thomas joined most of the court’s ruling, but he rejected the court’s contention that the state courts should determine whether Rast’s statements were testimonial by looking at their “primary purpose.” In his view, the confrontation clause only applies to formal testimony – such as affidavits, depositions, or testimony in court.

Justice Neil Gorsuch also expressed skepticism about the “primary purpose” test for testimony, explaining that he was “concerned, as well, about the confusion” such a test “may engender.” But he believed that the court should not have weighed in on the issue at all.

Justice Samuel Alito (in an opinion joined by Chief Justice John Roberts) agreed with the result that the court reached but not its reasoning. In his view, Friday’s ruling “inflicts a needless, unwarranted, and crippling wound on modern evidence law,” which has generally permitted experts to disclose the information that was the basis for their opinions. That doctrine developed, Alito explained, to replace a “highly artificial” and “awkward” prior practice in which “expert witnesses were required to express their opinions as responses to hypothetical questions.”

But Alito nonetheless agreed that the case should go back to the state courts because, in his view, “Longoni stepped over the line and at times testified to the truth of the matter asserted,” thereby implicating the confrontation clause.

Cases: Smith v. Arizona

To visit the SCOTUSBlog CLICK HERE

  

Missouri Supreme Court: Virtual witnesses violate the Sixth Amendment

As the justice system becomes increasingly reliant on remote technology to cope with a backlog of cases during the coronavirus pandemic, an overturned statutory rape conviction in Missouri, where the state supreme court found that an investigator’s video testimony violated the defendant’s Sixth Amendment right to confront the witnesses against him, is raising new questions about video testimony in criminal court cases nationwide, reports the Associated Press.

The decision could eventually make this a test case for the U.S. Supreme Court, which has grappled with the legal ramifications of remote testimony for decades, but has yet to reach a sound conclusion on a  question that could mean yet more challenges for an already overburdened judiciary, according to The Crime Report.

In Maryland v. Craig in 1990, the court upheld a trial judge’s decision to let a victim of child abuse testify remotely, saying the Sixth Amendment doesn’t guarantee an “absolute right” to in-person confrontations, especially if remote testimony “is necessary to further an important public policy.”

The dissenters said the Constitution provided no wiggle room and that the point was “to place the witness under the sometimes hostile glare of the defendant,” and were in the majority 14 years later in Crawford v. Washington, which asserted that the right to confront an accuser in person was near-to-absolute.

Research has raised serious questions about the widely held idea that people can gauge trustworthiness better in person and in many pandemic-era proceedings defendants have agreed to waive their Sixth Amendment rights so trials can go forward.

To read more CLICK HERE

Is a dog-sniff reliable enough to convict an alleged criminal?

Dogs have been celebrated since antiquity for their ability to sniff a particular odor and lead humans to its source, reported Science. But the domesticated canine’s transformation into crime-fighting companion emerged much more recently, as U.S. police launched K-9 training programs and a thriving cottage industry of private firms, which often aid law enforcement, emerged. 

Today, police use dogs to track fugitives and search for missing persons, obtain probable cause (that is, legal justification to get a search warrant), and find substances, particularly illegal drugs. In what are known as scent lineups, agencies use trained canines to match evidence collected at a crime scene to the scent of a suspect or body. Increasingly, testimony from dog handlers has also served as direct evidence of guilt—accepted in lieu of an actual corpse, drug stash, or other physical evidence of a crime.

Yet critics worry that the criminal legal system has embraced a technique profoundly lacking in scientific validation. Dog-sniff evidence has led to wrongful convictions, and studies show human biases skew animal behavior. Almost no published research indicates just what dogs detect or how they do it. Defendants and their lawyers can’t cross-examine a dog, which means the accused cannot scrutinize the evidence or readily confront their accusers, a right enshrined in the U.S. Constitution.

“It’s not enough to say I have this amazing expert with an incredible nose who can distinguish between scents,” says Binyamin Blum, an evidence scholar at the University of California (UC) Hastings College of the Law, who contends such testimony short-circuits the safeguards in place to discriminate between junk science and real science. “You have to explain exactly what their method is.”

No comprehensive database exists about exoneration that involved a dog-sniff, but according to the National Registry of Exonerations, a project hosted by the University of Michigan Law School, at least 17 innocent people have been freed after dog-sniff evidence erroneously sent them to prison. Other convictions have been upheld—even after errors came to light.

Dana Delger and M. Chris Fabricant, attorneys from the Innocence Project’s strategic litigation department have did not question whether dogs could detect odors imperceptible to humans. Rather, they argued, “What is at issue is what has never been proven with any degree of scientific reliability: the ability of a dog to detect the residual scent of a particular object, including human remains, at a specific location days, weeks, months, or even more than a year after that object was removed.” A sniff could be used to corroborate, but they argued a dog’s indications alone should not be used to prove a person’s guilt.

Fabricant and Delger argued that a dog’s behavior may reflect a handler’s expectations, pointing to a 2011 study in Animal Cognition by Lisa Lit, then at UC Davis. Lit found handlers “cued” dogs into making false indications. In one test, Lit showed up each morning with evidence bags containing cannabis and gunpowder, explaining to 18 teams that those target scents might be present inside a church. No target odors were present, and yet dogs positively indicated 85% of the time, handlers said, suggesting the dogs served as loyal companions first and objective scent detectors second.

Similar issues came to light more recently in letters criticizing a 2018 study published in Forensic Science International. The experiment was designed to test the long-standing belief that dogs could “mantrail” unfamiliar suspects by their odor. In the study, dogs correctly trailed people 82% of the time. But earlier this year, several critics pointed out methodological shortcomings stemming from handler and experimenter bias, and the journal’s editors added a cautionary “expression of concern.”

To read more CLICK HERE

GateHouse: The Confrontation Clause and the return of jury trials

Matthew T. Mangino
GateHouse Media
July 31, 2020
A murder trial resumed this week in New York after the COVID-19 pandemic shut the proceeding down in March. When the trial restarted, after nearly a four-month break, the courtroom was a different place.
The recently resumed trial featured court personnel, jurors, attorneys, witnesses and spectators donning all sorts of personal protective equipment. According to Frank Runyeon of Law360.com, the judge “was decked out in white latex gloves, a blue face mask, spectacles and a plastic face shield as he sat behind plexiglass dividers mounted to the bench.”
The judge’s speech was muffled to the point that attorneys, sitting behind their own fortress of plexiglass walls, masks and face shields, often asked him to repeat himself. The return of jury trials in the midst of a pandemic is crucial - men and women accused of crimes have been sitting in jail awaiting their day in court. Those men and women are guaranteed a speedy trial.
However, bringing those accused of a crime to trial brings with it a host of problems - some of which may be around long after the pandemic is gone. At this point, the primary concern is the health and well-being of everyone involved in the process. That is being addressed in a manner that may contravene the U.S. Constitution.
The Sixth Amendment to the U.S Constitution provides various rights to criminal defendants, one of which is the right to be confronted with the witnesses against them. This right is derived from what is known as the Confrontation Clause.
Since the onset of the pandemic, many courts have conducted hearings via video or telephone. I have participated in virtual hearings. While they help move things along, witnesses and attorneys participating over Skype, Zoom or some other platform are often subject to delay or the freezing of the video and/or audio. The record, the transcription of the proceeding, is often a mess with lawyers talking over witnesses or witnesses talking over judges or a mix of both.
However, a criminal trial is different. In a criminal trial, a person’s liberty is at stake. Remote testimony is inadequate. In 1988, the U.S. Supreme Court said that the Confrontation Clause guarantees “a right to meet face to face all those who appear and give evidence at trial.”
One hundred years earlier, the Supreme Court said the “primary object” of the Confrontation Clause is to prevent depositions or ex parte affidavits from being used in court in lieu of a “personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”
Can this be achieved when the lawyers conducting the examination are wearing a mask and the witness being examined is wearing a face covering as well? Can a juror adequately judge the credibility or believability of a witness who is wearing a mask?
The face-to-face encounter implicit in the Confrontation Clause is not only between accuser and accused, but between accuser and jury. Eugene Volokh, a blogger and professor at UCLA Law School, writing about a case involving a female witness wearing a headscarf, suggested, “That encounter enables the jurors ‘to obtain the elusive and incommunicable evidence of a witness’(s) deportment while testifying;′ an ability, our Supreme Court has explained, that is ‘as important a component of the right of confrontation as the defendant’s opportunity to cross-examine the adverse witness.’”
A witness with a face covering may be able to hide the pursing of lips, a smile or expression indicative of the witness’ comfort or unease, hesitance or confidence, indifference or nervousness.
A mask also puts the examiner at a disadvantage. Our system of zealous advocacy is based on a lawyer’s thorough probing of a witness to get at the truth. Cross-examination is often based on the observations of a trained trial attorney. Facial expressions and reactions to questioning often guide a lawyer through cross-examination.
The pandemic will end. The challenges to trials conducted remotely or without the protections of the Sixth Amendment will be around long into the future.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

To visit the column CLICK HERE

GateHouse: The pandemic is crushing the Sixth Amendment

Matthew T. Mangino

GateHouse Media

May 22, 2020

The pandemic has altered the way justice is meted out in courtrooms across the country. While courts have tried to be innovative, video conferencing and closed courtrooms are not what the founding fathers had in mind when drafting the Bill of Rights.

No amendment to the Constitution has been trampled on, in the name of public health, more than the Sixth Amendment.

The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ... be confronted with the witnesses against him ... and to have the assistance of counsel for his defense.”

In 1932, the U.S. Supreme Court ruled that the U.S. Constitution required defendants in capital cases be given access to counsel upon request.

Ten years later the court refused to extend the right to counsel to criminal charges other than capital murder. The court held that a refusal to appoint counsel for an indigent defendant charged with a felony did not violate the U.S. Constitution.

In the landmark case of Gideon v. Wainwright, the court found that a person accused of a serious crime was entitled to free legal counsel.

Today, courthouses are closed - public defenders and prosecutors have been furloughed and judges are on call. The right to counsel is being tested across the country. Having access to counsel is fundamental.

The aid of counsel helps preserve all the other protections provided by the Sixth Amendment.

For instance, the Sixth Amendment also provides that those accused of a crime are entitled to a speedy and public trial by a jury of their peers. Unfortunately, those clearly established rights have been set aside by governors and judges for the sake of protecting the public from a highly contagious disease.

Jury trials have essentially disappeared in this era of COVID-19. Certainly, there is concern that 12 jurors sitting side by side for days or being housed for an extended period of time in a room deliberating a verdict is a legitimate health risk. However, men and women accused of crime have a right to be heard in a timely manner.

The matter is further complicated by the fact that some of those accused of a crime are sitting in jail awaiting trial. Their lives are at risk as well. Hygiene is at a premium and social distancing is a utopian idea behind bars.

The Sixth Amendment also provides that those accused of a crime have the right to “be confronted with the witnesses against him.”

This is where innovation has complicated matters. Many courts have adopted measures to deal with emergency criminal cases. For instance, some courts have adopted the use of video conferencing to deal with bond hearings, preliminary hearings and other time sensitive matters when an accused is sitting in jail awaiting trial.

Cross-examining witnesses through video conferencing can be challenging, especially when the judge, witness and lawyers are all in different locations. When the Constitution provided that an accused has the right to confront witnesses - that confrontation was in person.

When a lawyer and her client are in two different locations, communication with the client during the proceeding is impossible. The Defendant can simply not aid in her defense.
Even after the pandemic - what is done today will have an impact for years to come. Every proceeding in court is transcribed. The reason to transcribe a proceeding is to create a record of the testimony and evidence that is presented to the court for possible review on appeal.

In our new world of virtual justice, if counsel objects to specific testimony, often the witness continues to talk, conveying evidence to the court that might have not have otherwise been admissible.

Creating a good record with remote witnesses is very difficult. Counsel, witnesses and even judges can at times talk over one another. Creating a clear record for appeal is going to be a daunting task.

What is the big deal?

The Sixth Amendment protects those who have been accused of a crime - not convicted. Protecting the public from the transmission of COVID-19 is a laudable goal, but trampling on the U.S. Constitution to do it is risky business.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino
To visit the column CLICK HERE

SCOTUS: Public trials 'essential' for people accused of a crime

The pandemic has turned the court system upside down. Court watchers, volunteers who sit in open court and take notes in the interest of court transparency and accountability have been left out of the new virtual courtroom. Monitoring court hearings has become difficult, in some cases even impossible, for dozens of court watch programs scattered throughout cities and towns in the country, reported The Marshall Project. They said their access has been slowed or halted as virtually every system in the country suspended or reduced public court and moved online during the pandemic.

In New York City, anyone wanting to see a hearing has to go to the courthouse and watch on a screen there, possibly risking contagion. In Los Angeles and Miami, officials have not given court watchers a way to join their courts’ video conferences. In New Orleans, access has depended on individual judges, with some being more reliable than others.

It’s not just a matter of convenience, the court watchers said. Public trust in what happens in court is eroded when they—or anyone else—can’t witness it, they said, and their presence helps ensure the courts function as they are supposed to.

“What we've seen over the past few years is that our presence really does matter,” said Zoë Adel, who runs the New York City court watch. “It changes people's behavior—judges set lower bail— when they know court watchers are watching and they're being held accountable.”

To be sure, most judges and court administrators have had little choice but to close courthouses under state orders or health guidelines aimed at slowing the virus. To be able to conduct hearings that can’t be postponed, they are joining many other Americans in adapting quickly to online platforms many had never used before, leading to technical problems. As NPR reported, other public meetings that used open online conferencing have at times been targets of harassment.

“This was the first time we've done Zoom proceedings, and we rolled it out fast,” said District Court Judge Keva Landrum in New Orleans, referring to a popular video conference platform. She said judges wanted to make sure it would work before finding out how to allow public access. “Now that it has been going well and judges are more settled with it, I think judges will be increasingly willing to provide access to interested parties,” she said.

Shortly after speaking with Landrum, The Marshall Project was granted access to observe a magistrate court session on Zoom, and faced no difficulties following along. On Saturday, Landrum provided access to Court Watch NOLA moving forward.

The move from physical court to online conferencing got a boost in the CARES coronavirus stimulus act, which allows the historically camera-averse federal judges to use video for some hearings during the national emergency. But the hastily written law left out language guaranteeing public access to those video proceedings.

On state and local courts, access has been spotty as each court comes up with its own rules on the fly, court watchers said.

The shift is happening so rapidly that legal observers are still largely playing catch up. Douglas Keith, counsel at the Brennan Center for Justice, a progressive advocacy organization, said the group was still piecing together the constitutional questions that video court proceedings might raise.

“How will remote hearings affect the quality of representation in criminal cases, and the ability of defendants to speak to their lawyers with the frequency and privacy they need? How will appearing on video affect the jury’s and judge’s view of a defendant?” he said, to name a few.

Keith noted that in the 1984 case Waller v. Georgia, the U.S. Supreme Court declared public trials to be “essential” for the people accused because “the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.”

Public access to the courts is particularly important during disasters, said Simone Levine, executive director of Court Watch NOLA in New Orleans.

"When a community is in an emergency, the community's fear and distrust of public agents and officials increase and in these times it is integral that public officials increase their transparency,” she said.

To read more CLICK HERE

GateHouse: DOJ seeks to curtail rights during health emergency

Matthew T. Mangino

GateHouse Media

March 27, 2020

In the face of a surging COVID-19 pandemic, the U.S. Department of Justice has asked Congress for the ability to detain people indefinitely without trial, to extend the statute of limitations in criminal cases and limit the constitutional right to confrontation.

There is no question that the nation is facing an unprecedented emergency, but now, especially now, is not the time to ignore the U.S. Constitution.

At stake are three fundamental rights that are afforded all persons accused of a crime - the right to a speedy trial, the government’s responsibility to file charges within a reasonable, statutorily established, period of time, and the right to confront one’s accuser.

A defendant’s right to a speedy trial has constitutional and statutory underpinnings. The Sixth Amendment provides, through the Speedy Trial Clause, that an accused formally charged or detrained pretrial is entitled to have his case heard with reasonable diligence. Rule 48 of the Federal Rules of Criminal Procedure grants trial courts discretion to dismiss cases that are not brought to trial promptly.

The reason for a speedy trial rule is to prevent the government from arresting an accused and letting him or her languish in jail without being proven guilty. During this health emergency it is important to bring pretrial detainees to trial as quickly as possible or let them out of jail until trial.

The Constitution grants people habeas corpus which gives the accused the right to appear in front of a judge and ask to be released before trial. Adopting Attorney General William Barr’s recommendations would essentially suspend habeas corpus indefinitely until the emergency ended. However, Article I, Section 9, Clause 2 of the U.S. Constitution provides, “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion ...” A national health emergency is not listed as a reason to suspend habeas corpus.

Federal statutes of limitations provide a time frame within which charges must be filed. For instance, in state court the statute of limitations might be two years for a misdemeanor theft. If charges are not filed within two years of the date of the crime the charges are forever barred.

Such limitations are a product of the Fifth Amendment Due Process Clause. The purpose and effect of a statute of limitations is to protect defendants. The statute is based on the premise that if the government has a case they should pursue it with reasonable diligence. A delay could result in the defendant losing evidence necessary to disprove the claim; and litigation of a long-dormant accusation may result in an injustice.

The justification for extending the statute of limitations is that due to the health emergency the police are too busy and the courts may be closed - so the statute should be extended to pursue untimely cases. If those cases were butting up against the statute before the emergency, they have already been delayed for nearly two years or five years or longer depending on the alleged criminal conduct.

Instead of a blanket extension, the court should conduct a hearing to determine if prosecutors used due diligence to bring the case to trial before the health emergency and then, as swiftly as possible, after the emergency.

Finally, the Sixth Amendment guarantees the right to confront the witnesses against the accused. This right is known as the Confrontation Clause. This clause guarantees criminal defendants the opportunity to face the prosecution’s witnesses in the case against them and dispute the witnesses’ testimony.

The right to confront witnesses face-to-face is a fundamental right for those accused of a crime. The DOJ wants to use videoconferencing to permit a defendant in jail to participate in a proceeding remotely. Remote hearings are already being utilized for bail and extradition, but not for “critical stage” proceedings.

The idea of conducting a critical stage hearing without the defendant being present is extreme. In fact, some states had to amend their state constitutions to permit child victims to testify by video conferencing - outside the presence of the defendant.
Congress needs to proceed with caution. Setting aside fundamental constitutional rights for any reason is dangerous.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

To visit the column CLICK HERE

GateHouse: Cross-examination often inadequate for eyewitness

Matthew T. Mangino
GateHouse News Service
August 2, 2013

More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous. The U.S. Supreme Court believes that cross-examination is the panacea to eyewitness misidentification.

In the famous courtroom drama "12 Angry Men," rated by the American Bar Association as one of the 25 greatest legal movies of all time, juror No. 8, played by Henry Fonda, earnestly advocated for a not-guilty verdict.

Fonda started out as the only not-guilty vote. The turning point of the deliberations occurred when an older juror recalled that the state's prized eyewitness, who had observed the murder through her window as she laid in bed, had red marks on her nose left from wearing eyeglasses that were absent during her testimony. The older juror asked a reserved bespectacled juror, "Do you wear your glasses when you go to bed?" The bespectacled juror responded, "No, I don't. No one wears eyeglasses to bed."

Ultimately, Fonda succeeded in convincing his fellow jurors to acquit the young defendant accused of stabbing his father. Justice prevailed not because of an effective cross-examination — apparently the eyeglasses-less observation at night through a window did not come up during trial — but rather a persistent juror in search of justice won the day.

The 1957 movie raised an issue that is only now beginning to gain traction, the reliability of eyewitness identification.

The U.S. Supreme Court, as recently as last year, reaffirmed that the rules of evidence, jury instructions and most importantly, cross-examination are safeguards that protect an accused from the use of unreliable evidence like inaccurate eyewitness identification.

In "12 Angry Men," cross-examination failed to expose a witness' inability, due to impaired vision, to credibly identify the accused. In the movie, the failed cross-examination probably had more to do with bad lawyering than a fissure in the mechanism of cross-examination.

In real life, things do not always work out like they do in the movies. Jules Epstein, in "The Great Engine that Couldn't: Science, Mistaken Identification, and the Limits of Cross-Examination," wrote that even effective cross-examination can be inadequate to protect an accused wrongfully convicted through the testimony of an eyewitness.

Epstein referred to a passage in James M. Doyle's book "True Witness." Doyle wrote about the trial of Ronald Cotton. In 1984, a college student was assaulted in her apartment by an unknown intruder. Two days later, the victim picked Cotton's photograph out of a photo array. She said Cotton's photograph "looks most like her assailant." Later, the victim hesitatingly picked Cotton out of a lineup and ultimately identified him as her attacker at trial.

Cotton's defense counsel, through cross-examination, unlike in "12 Angry Men," was able to establish "the eyewitness victim, who wore eyeglasses, did not have them on during the assault." The witness later admitted the light source for the identification came from blinds, a bedroom window and lights from a stereo.

Cotton was nonetheless convicted. He was later exonerated through DNA evidence. Epstein argues that "judges and lawyers must disabuse themselves of the notion that cross-examination's great engine has the efficacy to redress and prevent the recurrence of mistaken identification."

Advances in the social sciences and technology have cast a new light on eyewitness identification. Hundreds of studies on eyewitness identification have been published in professional and academic journals. 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.

At least one U.S. Supreme Court Justice, Sonia Sotomayor, has acknowledged the shortcomings of cross-examination. 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."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

Visit Column

The Cautionary Instruction: Jodi Arias trial followers rebuke expert witness

The Pittsburgh Post-Gazette/Ipso Facto
April 19, 2013

An Arizona murder trial, turn media spectacle, has a sinister twist. An expert witness has been vilified on social media in the midst of being subjected to a grueling multi-day cross-examination.

Welcome to the Jodi Arias trial, where people line up every day hoping for a seat in the theatre of the absurd. Thousands of “Jodi-philes” that can’t visit the courtroom in person participate vicariously through their televisions, computers and smartphones. They tweet and text furiously, offering up crackpot conspiracies, rage, concern, often as if their own lives depend on whether Arias is sent to death row.

Arias is charged with killing Travis Alexander, her secret lover. In June of 2008, after hours of lovemaking, Arias killed Alexander. He had been shot in the head, stabbed nearly 30 times, and his throat slit. The question is not whether Arias committed murder, but why?

For three days last week, a domestic-violence expert witness for the defense named Alyce LaViolette held her own against prosecutor Juan Martinez’s cross-examination. In cyberspace LaViolette did not fare as well -- she was annihilated.

By midweek, more than 700 people had panned her book in scathing reviews calling LaViolette a fraud and a disgrace.

Outraged Jodi-philes called organizations that had booked LaViolette for speaking engagements, trying to persuade them to cancel her appearances.

“It’s the electronic version of a lynch mob,” retired Maricopa County Superior Court Judge Kenneth Fields told the Arizona Republic.

Sree Sreenivasan, professor of journalism at Columbia University, said “This is a logical extension of witness intimidation, taken to an extreme conclusion.”

Is the Arias trial a glimpse into the future? Using social media to influence or intimidate witnesses. Well, the future is now.

Criminals have discovered that Facebook is a great tool for witness intimidation. There are a growing number of intimidation cases involving Facebook. Prosecutors have come down hard on those who turn to social media to discourage others from cooperating with police and prosecutors.

In two separate cases in Pennsylvania, prosecutors have brought charges of witness intimidation for threats posted on Facebook.

Philadelphia district attorney Seth Williams recently wrote a letter to Facebook founder Mark Zuckerberg, insisting that the social media site take down a Philadelphia user’s postings which Williams says threaten a witness in a pending gun case.

Some of the posts were taken down, but images of gang members calling for all “rats” to be killed “point blank period” remain.

Can the general public, fans of a trial, collectively, and criminally, intimidate a witness? Judge Fields said, "If it's just the general public and there's no intention (by the prosecution), then there's nothing to be done about it."

The chilling effect of a community of Jodi-philes attacking the credibility of a professional who testifies at trial is not yet fully understood. The impact on future trials of the “slash and burn” media-mob needs rigorous analysis.

At a minimum, the Arias trial has done nothing to enhance the justification for cameras in the courtroom.

Visit Ipso Facto

Cross-Examination and Inaccurate Eyewitness Identification

The Pennsylvania Law Weekly
February 14, 2012

In the famous courtroom drama "12 Angry Men," rated by the American Bar Association as one of the 25 greatest legal movies of all time, juror No. 8, played by Henry Fonda, earnestly advocated for a not-guilty verdict.

Fonda started out as the only not-guilty vote. The turning point of the deliberations occurred when an older juror recalled that the state's prized eyewitness, who had observed the murder through her window as she laid in bed, had red marks on her nose left from wearing eyeglasses. The older juror asked a reserved bespectacled juror, "Do you wear your glasses when you go to bed?" The bespectacled juror responded, "No, I don't. No one wears eyeglasses to bed."

Ultimately, Fonda succeeded in convincing his fellow jurors to acquit the young defendant accused of stabbing his father. Justice prevailed not because of an effective cross-examination — apparently the eyeglasses-less observation at night through a window did not come up during trial — but rather a persistent juror in search of justice won the day.

The 1957 movie raised an issue that is only now beginning to gain traction, the reliability of eyewitness identification.

The U.S. Supreme Court recently decided Perry v. New Hampshire . The case involved the prosecution of Barion Perry, who was convicted of theft based on the testimony of a woman who said she saw the theft and described the suspect as tall and black. Then, without prompting from the police, she went to her window and identified Perry, who was standing outside next to a police officer. The identification was used to convict Perry, despite objections from his lawyers that seeing him next to the police officer could have unfairly influenced the woman's identification, the Washington Post reported.

Prior to Perry , judges were required to screen testimony for reliability when police were suspected of using suggestive tactics. Prescreening was to deter police from creating "suggestive circumstances" that point to a specific suspect, although some evidence obtained through suggestive practices was still admissible.

Perry's lawyer wanted the court to expand the prescreening practice to all identifications made under any suggestive circumstance, not just those created by the police.

"The potential unreliability of a type of evidence does not alone render its introduction at the defendant's trial fundamentally unfair," Justice Ruth Bader Ginsburg wrote on behalf of the majority in Perry . The sole reason to impose a judicial prescreening process is to deter police from creating suggestive circumstances that point to a specific suspect.

"When there is no improper police conduct there is nothing to deter," Ginsburg added. The Perry court maintained the status quo.

Ginsberg's opinion noted that the rules of evidence, jury instructions and most importantly, cross-examination are safeguards that protect an accused from the use of unreliable evidence like inaccurate eyewitness identification.

In "12 Angry Men," cross-examination failed to expose a witness' inability, due to impaired vision, to credibly identify the accused. In the movie, the failed cross-examination probably had more to do with ineffective assistance of counsel than a fissure in the mechanism of cross-examination.

In real life, things do not always work out like they do in the movies. Jules Epstein, in "The Great Engine that Couldn't: Science, Mistaken Identification, and the Limits of Cross-Examination," wrote that even effective cross-examination can be inadequate to protect an accused wrongfully convicted through the testimony of an eyewitness.

Epstein referred to a passage in James M. Doyle's book, "True Witness." Doyle wrote about the trial of Ronald Cotton. In 1984, a college student was assaulted in her apartment by an unknown intruder. Two days later, the victim picked Cotton's photograph out of a photo array. She said Cotton's photograph "looks most like her assailant." Later, the victim hesitatingly picked Cotton out of a lineup and ultimately identified him as her attacker at trial.

Cotton's defense counsel, through cross-examination, unlike in "12 Angry Men," was able to establish "the eyewitness victim, who wore eyeglasses, did not have them on during the assault." The witness later admitted the light source for the identification came from blinds, a bedroom window and lights from a stereo.

Cotton was nonetheless convicted. He was later exonerated through DNA evidence. Epstein argues that "judges and lawyers must disabuse themselves of the notion that cross-examination's great engine has the efficacy to redress and prevent the recurrence of mistaken identification." The Perry decision has essentially left, in part, cross-examination as the primary means to expose a suggestive eyewitness identification that did not directly involve the police. Thirty-five years ago, the U.S. Supreme Court established a test for determining when due process requires suppression of an out-of-court identification produced by suggestive police conduct. In Manson v. Braithwaite , instead of creating a rule of exclusion the court required judicial prescreening of the identification to determine if the suggestive procedure was reliable when judging the totality of the circumstances.

The Perry court reiterated the rule in Braithwaite . Once the conduct is determined not to be the product of the police, no matter how suggestive, the inquiry is over. It is not about a search for justice.

Some would suggest that the suppression of incriminating evidence due to police misconduct is also not in the interest of seeking justice. The search of a home without a warrant is the type of police conduct that must not be condoned regardless of what nefarious conduct is interrupted, even though, in essence, justice is denied the state.

Here, the absence of police misconduct seems to deny justice to the accused. Suggestive eyewitness identification should be subject to a judicial prescreening whether or not it was initiated by the police. To do otherwise seems to exclude a layer of protection easily accessible to an accused.

The Perry decision seems wholly inadequate in light of the growing body of scientific evidence supporting a closer look at eyewitness identification.

Since 1977, advances in the social sciences and technology have cast a new light on eyewitness identification. Since Braithwaite , hundreds of studies on eyewitness identification have been published in professional and academic journals. 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.

The Supreme Court ignored the research and acknowledged no shortcomings in the system currently in place to challenge eyewitness identification. Only Justice Sonia Sotomayor acknowledged a potential problem with the status quo. In her dissent, Sotomayor acknowledged that the majority had turned a blind eye toward its own precedents and the abundance of scientific research, The New York Times reported. "This court has long recognized," she wrote, "that 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."

Visit The Pennyslvania Law Weekly