You can't always believe what you (think) you see

On Wednesday The Justice Project released a scathing report entitled "Convicting the Innocent: Texas Justice Derailed" in which TJP analyzed the reasons that thirty-nine innocent citizens spent over 500 years in prison before being exonerated by DNA evidence. According to the research, eyewitness identification "is by far the leading factor in wrong convictions in Texas." 

"Any wrongful conviction is a tragedy because it leaves the guilty unpunished and condemns the innocent to prison, or death." -- Wallace B. Jefferson, Chief Justice, Texas Supreme Court

My colleague, Houston criminal defense attorney Mark Bennett commented on my blog post about Harris County DA Pat Lykos' report on the Rachell exoneration, that eyewitness identification was a much more serious issue than faulty DNA analysis. Mr. Bennett is correct in that assessment as DNA evidence is present in but a small minority of cases.

Per TJP's report:

"While the majority of this report focuses on the wrongful convictions uncovered through DNA testing in Texas, they are only the tip of the iceberg. The advent of DNA technology has given our criminal justice system a tool that can provide incontrovertible evidence of guilt - and innocence - in cases where the presence of biological evidence is dispositive. Unfortunately, biological evidence is present in only a fraction of criminal cases. While DNA is an invaluable tool, it does not solve the problems of unreliable evidence that repeatedly surface when wrongful convictions are discovered. The vast majority of cases simply do not have probative DNA evidence."

This lack of probative DNA evidence presents a substantial hurdle to most citizens seeking exoneration - how do you prove your innocence?

"While a defendant is innocent until [should really read "unless"] the prosecution proves guilt, after a conviction occurs, the burden shifts to the defendant to prove innocence. New evidence that merely casts doubt on the conviction is not nearly enough to overturn a conviction - which is why DNA evidence, where it exists, is so successful in exonerating the innocent. Without DNA evidence, inmates face an almost insurmountable challenge to establish their innocence conclusively."

The report lists the following facts regarding exonerations in Texas:

• Texas has had more wrongful convictions exposed by DNA (39) than any other state in the country;
  
• The 39 exonerated citizens spent over 548 years in prison (an average of 14 years each);
  
• State and local governments have paid out over $17 million in compensation to the exonerated;
  
• Twelve Texas counties have uncovered wrongful convictions through DNA evidence;
  
• Dallas County leads in the number of wrongful convictions because Dallas County preserves DNA evidence while other counties destroy it;
  
• Nine citizens have been freed from death row based on evidence of innocence;
  
• 85% of the wrongful convictions involved eyewitness identification;
  
• 28% of the wrongful convictions involved the use of unreliable or limited forensic methodologies;
  
• 18% of the wrongful convictions involved false forensic testimony;
  
• 18% of the wrongful convictions involved the withholding of exculpatory evidence or other prosecutorial misconduct;
  
• 13% of the wrongful convictions involved accomplice testimony; and
  
• 13% of the wrongful convictions involved false confessions or guilty pleas.
  

While I will come back to this report in a future posting, today I am focusing on the reliability of eyewitness identification and what should be done to lessen the impact of mistaken eyewitness identification in the future.

The report points out that Texas has no statutory rules or standards regarding how live lineups or photo arrays are conducted. More troubling is the fact that some 88% of law enforcement agencies have no written policies regarding lineups and photo arrays.

TJP calls on Texas to adopt the following safeguards when conducting lineups and photo arrays:

• Law enforcement agencies should document lineups or photo arrays by providing the photos used in a photo array or a photograph of the live lineup as well as all dialogue and witness statements made during the procedure.
• Law enforcement agencies should inform eyewitnesses, prior to viewing a live lineup or photo array that the accused may or may not be in the lineup. Eyewitnesses should not feel compelled to make an identification.
• Lineups and photo arrays should be composed "fairly." The report calls for fillers to be selected based not on their resemblance to the accused but, instead, on their resemblence to the description provided by eyewitnesses.
• The person conducting the lineup or photo array should not know the identity of the accused. Having a "blind" person conduct the lineup reduces the chances of the officer influencing the results of the lineup or photo array.
• Law enforcement agencies should avoid exposing eyewitnesses to multiple viewings of the accused.
• Law enforcement agencies should consider using sequential arrays instead of traditional arrays. In a sequential array, an eyewitness views one individual at a time which prevents the witness from making an identification through process of elimination.
  

While juries seem to accept eyewitness testimony as the most accurate evidence, we know instinctively that such testimony is fraught with problems: lighting, time, memory, excitement, fear, anger and ethno-centrism among others. The proposals in The Justice Project's report are a meaningful first step in reducing the number of wrongly convicted citizens behind bars.