Increasing Democracy

BY J. Mijin Cha

Criminal Justice Reform at the State Level

Maryland, North Carolina , West Virginia, and Vermont all passed legislation this year reforming the eyewitness identification process. Additionally, last year thirteen states passed some form of eyewitness identification reform legislation. In fact, in just two years, 32 bills on eyewitness identification reform were introduced in 17 states, according to the National Association of Criminal Defense Lawyer's state legislation tracking analysis.

The sheer number of bills introduced indicates that there are some problems that need to be fixed in our criminal justice system. Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of the wrongful convictions that have been overturned through DNA testing. A comprehensive study of capital trials conducted from 1973 to 1995 showed that nearly 70% of death sentences handed down by state courts were overturned due to procedural errors and misconduct.

Common Causes of Wrongful Conviction: According to the Innocence Project, a project housed at the Cardozo School of Law dedicated to exonerating wrongfully convicted individuals, some of the most common causes of wrongful convictions include:

• Eyewitness misidentification

• False confessions

• Forensic science error

• Misuse of informants or snitches.

As this Dispatch will detail, this past session there was significant advancement in correcting some of the most common causes of wrongful conviction, helping to reform our damaged criminal justice procedural system.

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Eyewitness Misidentification Reform

Eyewitness testimony can be some of the most compelling evidence in criminal cases. It can also be some of the most unreliable. Studies have documented the unreliability of eyewitness identification due to factors as basic as the fallibility of human memory.

The U.S. Department of Justice released a guide for eyewitness evidence procedures that makes use of social science findings on eyewitness evidence and combines research and practical perspectives. Several states have adopted these provisions, including Maryland, which adopted HB 103 requiring police departments to adopt written policies regarding eyewitness identification procedures that conform to the Department of Justice guidelines, and West Virginia's new law also requiring conforming to the DOJ guidelines. 

California's SB 756 created a task force that includes the Attorney General to develop "best practices" guidelines for eyewitness identifications. The guidelines will then be transmitted to the legislature with recommendations for any legislation needed to enforce the guidelines. The bill has passed both chambers and is waiting for approval by the governor.

North Carolina's eyewitness reform bill requires police officers to show photos of suspects one at a time, instead of all at once, and requires a "double-blind" where the officer does not know which photos are of a suspect. 

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Preventing False Confessions

A few years ago, an extensive study of false confession cases was undertaken to see how the cases were treated by the criminal justice system. The study analyzed 125 proven interrogation-induced false confessions, that is cases where individuals that are indisputably innocent confessed to crimes they did not commit. While it may seem unbelievable that someone would confess to a crime they did not commit, the study points out that the vast majority of the American people are unaware of the psychologically manipulative methods of police interrogators and the subsequent effect they can have on individuals. Evidence shows that false confessions do in fact occur for a number of reasons, including psychological manipulation, torture, threats, and false promises, i.e. promising to release an individual if they agree to confess.

The study concludes that a procedure as simple as requiring the taping of interrogations could greatly reduce the number of false confessions. California just passed SB 511 requiring the electronic recording of custodial interrogations for violent felony suspects. North Carolina's HB 1626 requires law enforcement agencies to record all homicide interrogations, either by audio or video devices. The bill was unopposed by both the N.C. Conference of District Attorneys and the N.C. Sheriff's Association. 

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Stopping Forensic Science Error

While television often treats scientific evidence of a crime as definitive, the reality is less compelling. In 2002, DNA testing was suspended in the Houston Police Department crime lab after a report revealed widespread problems with testing, evidence storage and management. A subsequent independent investigation of the lab was recently concluded and found that the crime lab's DNA section lacked competent supervision and technical guidance and employed analysts that were not aware of how far their analytical procedures and reporting conventions departed from accepted forensic science principles. The risk that casework performed by the crime lab, particularly by the DNA section, would lead to a miscarriage of justice was unacceptably high.

Moreover, the majority of defendants convicted with faulty evidence from the Houston crime lab have received little help in determining how, or if, their convictions could be affected: attorneys in 24 out of 61 cases have taken little meaningful action with new test results and in 15 other cases, defendants have received no representation at all.

In Colorado, Gov. Ritter created an evidence preservation task force to analyze practices used across the country and to see if any should be implemented in Colorado. The Task Force comes on the heels of a series of articles in The Denver Post that found poor standards nationwide being used to oversee the preservation of biological evidence, including tens of thousands of DNA specimens being lost, mishandled or destroyed.

Maryland passed a groundbreaking crime lab oversight bill that directs the state health department to create Maryland's first regulations for licensing state, county and municipal crime labs. Under the measure, the secretary of the Maryland Department of Health and Mental Hygiene would be able to suspend or revoke licenses. While Texas, Virginia, and Minnesota have formed oversight panels in recent years to address crime lab misconduct, Maryland's bill is the first to put regulating the labs in the hands of a department with experience in scientifically based oversight of medical work.

North Carolina passed HB 1500 requiring the preservation of evidentiary material that could contain DNA, access to DNA testing of evidence when the current testing procedures are more accurate than past testing procedures for defendants, and a right of appeal for a defendant that has been denied a motion to conduct DNA testing. The bill was one of three criminal procedure reform bills that were passed this year, all of which were sponsored by Rep. Rick Glazier.

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Reforming Use of Informants or Snitches

In U.S. capital cases, witnesses with an incentive to lie ””otherwise known as snitches”” are the leading cause of wrongful convictions. They account for over 45% of death row exonerations. For the most part, snitches are jailhouse informants promised leniency in their own cases or individuals with incentives to cast suspicion away from themselves, a recipe for unreliable or false testimony. In fact, such testimony is widely regarded as the least reliable.

To address this concern, California just passed SB 609, which requires corroboration of testimony from jailhouse informants before the testimony can be admitted. The law follows recommendations from a blue ribbon commission that examined the problems of wrongful convictions in California. The California Commission on the Fair Administration of Justice studied and reviewed the administration of criminal justice in California to determine the extent to which the process has failed in the past and to offer recommendations for improving the system. The study determined that informant testimony was used frequently in capital cases and therefore the process should be reformed to ensure confidence in the reliability of the testimony of informants. The bill is now on the governor's desk.

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Conclusion

When looking at criminal justice reform initiatives states should take a comprehensive approach to the problem. In an effort to overhaul their criminal justice procedures, Vermont passed a bill this past session that addresses several of the issues raised in this Dispatch, including:

• Access to post-conviction DNA testing for persons convicted of certain serious felonies indefinitely

• Compensation for wrongful convictions

• Creation of a preservation of evidence study committee

• Creation of an eyewitness identification and custodial interrogations recording study committee

By addressing several components that lead to wrongful convictions, the Vermont bill addresses the different ways in which the criminal justice system is damaged in an integrated way. Each problem may be distinct but they all lead to innocent people being convicted for crimes they did not commit.

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