GateHouse: The fallibility of eyewitness identification

Matthew T. Mangino

GateHouse Media

May 26, 2018

Former United States 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!’”

Convincing yes — reliable, maybe not.

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 percent of the cases overturned by DNA evidence.

A current member of the 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’ identification. This week Louisiana Gov. John Edwards signed into law legislation requiring all police agencies in Louisiana to adopt eyewitness identification procedures aimed at preventing mistaken identifications and wrongful convictions.

Louisiana joins New Jersey, Massachusetts and North Carolina, among other states, to review and revise state rules for how judges and jurors treat evidence from police lineups and photo arrays. States are utilizing practices supported by years of research.

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 guards 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.

The Louisiana legislation, according to the New Orleans Times-Picayune, mandates all police agencies in the state adopt the Louisiana Sheriff’s Executive Management Institute model policy on eyewitness identification procedures, or write its own policy that adapts best practices. The model policy calls for, among other procedures, blind administration of photo lineups and instructions that the suspect may or may not be in the lineup.

What was once the gold standard of evidence — the disinterested eyewitness — is now subject to intense scrutiny. Standardized identification procedures are a start, however, acknowledging that witnesses can be unintentionally biased or that the human mind is fallible may be more difficult.
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 the column CLICK HERE

Judge Kozinski: Eyewitness identification

Ninth Circuit Court of Appeals Judge Alex Kozinski — has recently published an article in the Georgetown Law Journal providing 12 reasons we should worry about the criminal justice system. His former law clerk and blogger Eugene Volokh has serialized the article for the Washington Post.  Periodically, I will share Judge Kozinski's concerns with the criminal justice system, through the analysis of Mr. Volokh.

I have shared similar concerns through this blog.  I will provide links to my commentary as well.

1. Eyewitnesses are highly reliable. This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. Eyewitness reliability is further compromised when the identification occurs under the stress of a violent crime, an accident or catastrophic event — which pretty much covers all situations where identity is in dispute at trial. In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases. Yet, courts have been slow in allowing defendants to present expert evidence on the fallibility of eyewitnesses; many courts still don’t allow it. Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.

Here is my take in 2011 in the Pennsylvania Law Weekly

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

Prosecutor Shares Perspective on Wrongful Conviction Committee Report

Below is the full text of an op-ed in the Harrisburg Patriot-News written by Dauphin County District Attorney Edward Marsico concerning the Advisory Committee on Wrongful Convictions.  Last Friday, I wrote the first in a series of Blogs for The Cautionary Instruction at the Pittsburgh Post-Gazette legal web page Ispo Facto on the subject of the Committee report.

Best way to help wrongly accused is to identify and convict the guilty

Patriot-News Op-Ed
Edward M. Marsico Jr.

As district attorney of Dauphin County, it is my duty to seek justice for all people. No one wants to see an innocent person convicted of a crime he didn’t commit.

No one wants to see a guilty person go free, nor should anyone take advantage of or manipulate the system to achieve an unjust outcome. Recommendations in a report recently issued by a Senate-created Advisory Committee to Study the Causes of Wrongful Convictions could damage the criminal justice system rather than improve it.

The committee effectively said that because it believed 11 individuals — out of 5 million prosecutions — were exonerated, the criminal justice system has to be radically changed.

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.

As a member of that committee, I believe that ensuring convictions are reliable is critically important, but so is making sure that we don’t create even more innocent victims of crime by wrongfully handicapping law enforcement. In fact, the committee never completed its original charge to study alleged wrongful convictions.

Instead, it focused on 11 cases previously highlighted in law journals and permitted claims of innocence to go unchallenged, despite facts that suggest otherwise. In many of these cases, these individuals might have been exonerated, but not all fit the definition of being factually or actually innocent.

Jay Smith is one of the report’s “exonerees” and a familiar case to central Pennsylvanians. He was a high school principal convicted of murdering a teacher and her two children. While Smith had his conviction overturned because of an alleged failure to turn over evidence to support a farfetched defense theory, that ruling did not establish his actual innocence.

In a subsequent civil case, a federal appeals court said “[O]ur confidence in Smith’s conviction is not diminished in the least. We remain firmly convinced of the integrity of those guilty verdicts.”

That is a far cry from being found factually innocent. The committee made incorrect assumptions about police practices and recommended legislation that will dictate broadly stroked policies on how police departments investigate crimes.

Instead of allowing local police to develop their own best practices, the committee wants to mandate how every police department, regardless of size, handles a criminal investigation.

Police and prosecutors want to do the right thing. And I believe they are better suited than the criminal defense bar in making those decisions. For example, in Dauphin County, when attorneys for pedophiles attacked the interviewing process of children who were sexually abused, our Children’s Advocacy Center became the first in the commonwealth to videotape interviews of those children.

Since that time, the false assertions that these children were coached have disappeared. Likewise, when allegations are made that individuals are wrongfully convicted, prosecutors have a history of taking immediate action.

When evidence surfaced that serial killer Joey Miller might have committed a murder for which another man had already pleaded guilty, then district attorney Rich Lewis took immediate action to release that man from prison.

Years later, I worked closely with Patriot-News reporter Pete Shellem when he believed an individual had been wrongfully convicted. We gave Shellem unfettered access to our files, and in two of those cases my office took action to dismiss charges, as did Adams County District Attorney Shawn Wagner in another case Shellem had investigated.

In truth, the criminal justice system deals with overwhelmingly more innocent victims of criminal acts than it does with wrongfully convicted defendants. Every year, innocent people are victimized because of wrongful outcomes in the criminal justice system.

In fact, according to the U.S. Department of Justice, from 700 to 800 of the people arrested each year for murder have a prior homicide arrest. It is even more common for those charged with and convicted of rape to have a prior rape arrest.

Innocent victims of crime should be on our minds when we consider reforms. Changes that benefit guilty criminals through the creation of legal hurdles for cops and victims do not improve our system.

For that reason, my colleagues on the committee who work in law enforcement and represent victims prepared an independent report that further examines the cases involving alleged wrongful convictions and presents measures, including new laws allowing the increased collection and use of DNA evidence prior to trial, a pilot program on electronically recorded interrogations and expanded police training on identification procedures.

We look forward to working with all involved to develop evidence-based proposals that will truly improve the integrity of convictions in Pennsylvania. The best way to clear the wrongly accused and prevent more innocent people from becoming crime victims is to swiftly identify and convict the guilty.

EDWARD M. MARSICO JR. is Dauphin County district attorney and immediate past president of the Pennsylvania District Attorneys Association.

Wrongful Conviction Committee Releases Report After 4 Years

Consensus Not Reached:  Dueling Reports Provided to the Legislature

A four-year commission studying wrongful convictions in Pennsylvania has finally released its report and not everyone involved has joined in the commissions recommendations.  The commission has recommended more DNA testing, recorded interrogations and changes in the way police interview witnesses.  However, 14 of the 51 members of the joint state advisory committee defected from the group, and dueling reports were presented to the state Senate Judiciary Committee at a public hearing this week, reported the Harrisburg Patriot-News.

The 14 who left the initial group are members of law enforcement, district attorneys or victim’s rights advocates. They collectively complained that the committee process was flawed and biased and excluded their contributions.

However, there is some middle ground.  Both groups agree that a creation of a forensic advisory board and a change in the state’s wiretap rules could help prosecutors avoid bad convictions, according to the Patriot-News.

Eleven people have been freed from prison as a result of DNA testing in Pennsylvania since the 1980s.
But the two committees disagree on the definition of “innocence.” The members who defected believe a distinction should be made between people who are exonerated based on technicalities — police mistakes or court procedures — and people who did not commit the crime.

According to the Patriot-News, the biggest difference between the two reports — and the biggest philosophical divide between the members — was over whether substantive changes are necessary to Pennsylvania’s judicial system. “We don’t think that police practices should be legislated,” said Crawford County District Attorney Francis Schultz, president of the Pennsylvania District Attorneys Association, told the Patriot-News. “There’s always room for improvement in the system, but I don’t think this is the way to do it.”

To read more: http://www.pennlive.com/midstate/index.ssf/2011/09/panel_suggests_dna_testing_rec.html

Eyewitness Identification Comes to the Forefront

Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial
Pennsylvania Law Weekly

September 20, 2011

Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial. Thirty years ago, Supreme Court Justice William J. Brennan Jr. wrote: "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!'"

However, following the publication of hundreds of scholarly studies examining eyewitness identification this widely accepted form of evidence is being called into question.
According to Reason magazine, psychologists have long known about the fallibility of human memory. As far back as 1971, England's Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions.
This is not to suggest that eyewitness identification is completely unreliable. In fact, eyewitness testimony remains the most common form of evidence used to prosecute alleged offenders. However, concern has grown as it became clear that mistaken identifications have played a significant role in wrongful convictions.
In "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," University of Virginia School of Law professor Brandon L. Garrett wrote that 190 of the 250 convictions overturned by DNA evidence where the result of faulty eyewitness identifications.
The issue of eyewitness identification is in the spotlight as a result of a recent New Jersey Supreme Court decision and the U.S. Supreme Court decision to review eyewitness identification.
New Jersey's Supreme Court decided last week to overhaul the state's rules for how judges and jurors evaluate evidence from police lineups, reported The New York Times . The decision could help transform the manner in which police officers administer lineups — a fundamental aspect of police work.
In its ruling, State of New Jersey v. Henderson , the New Jersey Supreme Court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures have limitations and can result in unintentional misidentifications. The decision provides a framework for defendants to challenge eyewitness evidence in criminal cases. The court, for the first time, attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.
The U.S. Supreme Court has ruled that the due process clause requires judges to exclude, at times, eyewitness testimony based on unreliability. In its 1977 decision Manson v. Brathwaite , the U.S. Supreme Court held that the trial court must first decide whether an eyewitness identification was in fact impermissibly suggestive. If the court finds that the procedure was impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court must focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.
As the Supreme Court explained, "reliability is the linchpin in determining the admissibility of identification testimony." To assess reliability, the trial court must consider five factors:
• The opportunity of the witness to view the criminal at the time of the crime.
• The witness's degree of attention.
• The accuracy of his prior description of the criminal.
• The level of certainty demonstrated at the time of the confrontation.
• The time between the crime and the confrontation.
The U.S. Supreme Court will take up the issue of eyewitness identification this fall. In Perry v. New Hampshire , the Supreme Court must determine if due process protections apply to all eyewitness identifications made under suggestive circumstances or just those identifications made when the suggestive circumstances were the result of police actions.
The special master appointed by the New Jersey Supreme Court found that science has proven that memory is malleable. A substantial body of eyewitness identification research has revealed that an array of variables can affect and dilute memory and lead to misidentifications.
The New Jersey Supreme Court agreed with the special master that "[t]he science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications."
Some states have instituted changes to their eyewitness identification procedures. In 2001, New Jersey's attorney general issued a memorandum to all law enforcement agencies establishing a statewide protocol for eyewitness identifications. In 2005, Wisconsin's attorney general issued a similar set of identification guidelines recommending, among other things, "double-blind, sequential photo arrays and lineups with non-suspect fillers chosen to minimize suggestiveness, non-biased instructions to eyewitnesses, and assessments of confidence immediately after identifications."
North Carolina was the first state to pass legislation mandating, among other things, pre-lineup instructions and blind and sequential lineup administration. The special master cited Illinois, Maryland, Ohio, West Virginia, and Wisconsin as having passed similar laws regarding lineup practices.
Pennsylvania law regarding eyewitness identification seems to have lagged behind other jurisdictions.
In the state Supreme Court case Commonwealth v. Robinson , the defendant sought to offer expert testimony shedding light upon the reliability of eyewitness identifications. The court noted that the use of expert testimony to challenge eyewitness identification had already been rejected in Pennsylvania. The only new wrinkle with Robinson was the issue of cross-racial identification. The appellant argued that the victim, who was white, would have greater difficulty identifying an African-American suspect.
The court found that allowing an expert to testify that a cross-racial identification is less reliable than a same-race identification would improperly intrude upon credibility determinations that remain the sole province of the jury.
However, change may be coming in Pennsylvania with the regard to the use of expert witnesses. According to The Philadelphia Inquirer , this past March a state Superior Court panel ruled in Commonwealth v. Alicea , that lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit.
The Superior Court ruled that the testimony of an expert on police interrogation and false confessions would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession. Judge Mary Jane Bowes wrote, "Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television are unlikely to understand how these methods can lead to an innocent individual confessing."
Establishing evidence-based policies that govern the interaction between law enforcement and eyewitnesses provides the most promising means to avoid eyewitness misidentification and wrongful conviction.
Many municipal police departments in Pennsylvania have adopted at least some reforms as they relate to eyewitness identification. However, those reforms need to be adopted statewide and mandated for every police department in the commonwealth.

Visit Pennsylvania Law Weekly

It's Time for Pennsylvania to Get Moving Against Wrongful Convictions

The Pennsylvania Law Weekly
August 23, 2011

In November 2006, Sen. Stewart J. Greenleaf, R-Montgomery, chairman of the Senate Judiciary Committee, sponsored a resolution passed by the Pennsylvania Senate that created an Advisory Committee on Wrongful Conviction. Senate Resolution 381 directed that the joint state government committee, which is responsible for performing research for both houses and both parties of the General Assembly, establish the advisory committee.

The Senate resolution provided that the advisory committee on wrongful conviction shall, "Study the underlying causes of wrongful convictions so that the advisory committee may develop a consensus on recommendations intended to reduce the possibility that in the future innocent persons will be wrongfully convicted."

The resolution further directed the committee to, "review cases in which an innocent person was wrongfully convicted and subsequently exonerated, review any other relevant materials, identify the most common causes of wrongful convictions." Finally the committee must "consider potential implementation plans, cost implications, including possible savings, and the impact on the criminal justice system for each potential solution."

Nearly five years have passed without the committee issuing a report. Greenleaf's office has said it will be released next month. Meanwhile, several other states have been leading the charge in implementing means of evaluating possible wrongful convictions.

North Carolina is leading the way in government sponsored post-conviction review of innocence claims. In 2006, North Carolina established the Innocence Inquiry Commission, a state agency that investigates and evaluates post-conviction claims of factual innocence. The commission is made up of eight members selected by the chief justice of the North Carolina Supreme Court and the chief judge of the North Carolina Court of Appeals. The members include a Superior Court judge, a prosecuting attorney, a defense attorney, a victim advocate, a member of the public and two discretionary members.

The North Carolina commission has received 850 claims, conducted three hearings and issued one exoneration order.

Until recently, innocence claims were pursued by privately funded organizations.

According to USA Today , in Texas, state leaders are awaiting a commission study on the effects of innocence-related laws on eyewitness identification, the videotaping of interrogations and post-conviction DNA testing. In Florida, a commission created to examine the causes of wrongful convictions delivered a report to the state Supreme Court calling for police to follow state-issued guidelines on photo and live suspect lineups. USA Today , citing the Innocence Project, reported that five states in addition to Pennsylvania — California, Connecticut, Illinois, New York and Wisconsin — have established commissions to study the causes of wrongful convictions and make recommendations to lawmakers, police and the courts.

The state's advisory committee on wrongful conviction consists of judges, prosecutors, defense lawyers, law enforcement officers and victims' advocates. The project is chaired by John T. Rago, a Duquesne University law professor and director of the Cyril H. Wecht Institute of Forensic Science and Law, who, according to the Pittsburgh Post-Gazette , proposed the study to Greenleaf.

The advisory committee has yet to issue its findings. Originally it was reported that a final advisory committee report would be issued in late 2008. In June of 2009, the Pittsburgh Tribune-Review reported that, "The Senate-commissioned Committee on Wrongful Convictions is due to release a report by summer's end that could recommend changes in state law."

Summer came and went in 2009 without a report. At least one of the advisory committee's four subcommittees provided some public feedback. The science subcommittee made four recommendations. First, the science subcommittee called for a regulation mandating the preservation of biological evidence, as well as the creation of a forensic advisory board and implementation guidelines for lab accreditation and training.

In July 2010, the Innocence Project posted on its website: "With the upcoming release of a final report from Pennsylvania's Advisory Committee on Wrongful Convictions, the Pennsylvania Innocence Project is hopeful that Pennsylvania will join the growing number of states that require law enforcement officials to videotape all confessions from start to finish."

Obviously, the "upcoming release" of the report has not happened. However, videotaping confessions is indeed an issue that the advisory committee is considering. While a number of law enforcement agencies across the country have adopted some form of videotaping, Pennsylvania has not mandated videotaping of confessions by law enforcement agencies.

The purpose of videotaping is to ensure that confessions are free and voluntary and that the accused is not laboring under some defect that would render her confession involuntary. The subcommittee charged with evaluating this issue has sought public comment and the committee members are apparently hung up on when the videotaping should begin. Some members suggest that the videotape should not start rolling until the accused has been provided her Miranda rights, while others believe that the videotape should roll as soon as the interview begins.

Judging by the work in other states, the advisory committee should also address the use of informants and eyewitness misidentification. Professor Alexandra Natapoff recently wrote for Reason Magazine that a 2004 study by researchers at Northwestern University Law School found that "more than 45 percent of wrongful convictions in death penalty cases were due to false informant testimony; making snitches 'the leading cause of wrongful convictions in U.S. capital cases.'"

According to the Innocence Project, eyewitness misidentification testimony was a factor in 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of all wrongful convictions.

Greenleaf's office said that the report is now scheduled for release on Sept. 16 to correspond with the fall legislative session. Only time will tell, as more than four years have passed since the advisory committee on wrongful convictions was established. At the time there were 198 DNA exonerations nationwide and nine in Pennsylvania. Today, according to the Innocence Project there are 273 DNA exonerations nationwide and 11 in Pennsylvania.

Visit the Pennsylvania Law Weekly

Eye-Witness Identification Still Problematic

Mistakes in eyewitness identifications occur in 75 percent of convictions overturned by DNA evidence nationwide, according to the Innocence Project, which has helped free 267 people.

Unfortunately, it’s pretty typical, even in this day and age, for police departments to not even have written procedures for conducting eyewitness identifications,” Brandon Garrett, a law professor at the University of Virginia who recently wrote the book Convicting the Innocent: Where Criminal Prosecutions Go Wrong, told Miller-McCune Magazine.

“It’s somewhat shocking, given how much we know after three decades of pretty intensive laboratory research, looking at eyewitness testimony and the lessons from so many of these cases,” Garrett said.

According to Miller-McCune, Virginia and North Carolina each passed laws following high-profile exonerations in those states that standardized eyewitness identification procedures. Attorneys general in other states, such as Wisconsin, and police chiefs in various cities, such as Philadelphia, have enacted what the U.S. Department of Justice and the Innocence Project consider model reforms. So far, nothing similar has occurred in Washington, where many police agencies don’t even have detailed written guidelines for eyewitness identifications.

Decades of research, led most notably by Gary Wells, a distinguished psychologist in the field of criminal justice, show that the human memory does not recall images like a video camera, reported Miller-McCune. Memory is much more malleable and can be strongly influenced by suggestion, no matter how inadvertent, Wells and others have found.

To read more: http://www.miller-mccune.com/legal-affairs/eyewitness-ids-can-be-made-better-with-research-34084/

Long Accepted Evidence Being Challenged in Court

Fingerprints, Eye Witnesses and Arson Investigations all Subject to Scrutiny

A recent article in the Philadelphia Inquirer explores the potential problems with evidence used in criminal trials. The article explores several forms of evidence including eye witness testimony, fingerprints and arson investigation techniques.

According to the Inquirer, the legal challenges around the country are an outgrowth of the revolutionary impact of DNA testing, which has freed 267 prisoners nationwide, including 10 in Pennsylvania and five in New Jersey.

Eyewitness testimony was a factor in the convictions of 75 percent of those exonerated through DNA testing, according to the New York-based Innocence Project. Faulty forensic evidence contributed to 50 percent of the convictions. The project said that 25 percent of the defendants later found innocent had confessed or pleaded guilty, and that jailhouse informants were a factor in 15 percent of the overturned cases, reported the Inquirer.

The Inquirer suggested that eye witness evidence, always thought to be the gold standard of evidence, can be influenced by the race of the alleged offender and witness, use of weapons, time elapse between offense and testimony and trauma. The article laments that Pennsylvania does not permit the challenge of an eye witness by expert testimony.

Fingerprints long accepted as conclusive evidence of guilt are being challenged.In a recent Philadelphia case an attorney cited 21 cases of mistaken identifications by print examiners since 1990, including a Delaware County murder case in which a defendant, jailed for two years, was freed after a panel of experts agreed that his fingerprint was not at the crime scene, reported the Inquirer.

Arson investigations are another area of concern. A National Academy of Sciences report found serious deficiencies in how fire investigators decide whether a fire had been intentionally set. In Texas, Cameron Willingham was convicted of murder and executed for the deaths of his three young children as the result of an arson.

Willingham's case gained national attention in 2009 when an article in The New Yorker examined the arson investigation through experts and demonstrated that, contrary to the claims of the prosecution, there was no evidence that the house fire was intentionally set.

Pennsylvania convened a wrongful conviction committee which is expected to proposed that all confessions obtained by police be video taped, police departments implement a new lineup procedure and that the state create a forensic board to set standards for evidence analysis in Pennsylvania.

To read more: http://articles.philly.com/2011-03-21/news/29171675_1_dna-testing-wrongful-convictions-validity/4