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Blogiversary: Your lyin' eyes

The single most frequent cause of innocent people being convicted of crimes is mistaken identification.  This has been known for the better part of the past century, and it's not getting any better.  The Innocence Project examined 174 cases of wrongful conviction (DNA evidence showed the defendant was innocent), and found that almost three-quarters of the convictions were based on mistaken identifications.  In almost twenty percent of the cases, the defendant had been misidentified by more than one person; in one case, he was incorrectly identified by five different witnesses. 

For the most part, the response of the judicial system has been to pretend this doesn't happen.  Although the US Supreme Court highlighted the dangers of mistaken identification 40 years ago, and announced rules for preventing the use of unduly suggestive identifications, those rules have been folded into the "totality of the circumstances" test, with the result that cases of identifications being thrown out are about as common as Bigfoot sightings.  A few years back, I got assigned to an appeal where identification was the big issue, and I diligently researched every case over the past 20 years involving claims of suggestive identification.  There were 104 of them.  The identifications were upheld in 103.  The only case which was thrown out involved a 74-year-old woman who insisted that she'd identified the defendant in a lineup, which was called into question by the police officer's unhelpful testimony that no lineup had in fact been conducted. 

Some of the problems with eyewitness identification are due to the inherent fallibility of perception.  Any number of studies have demonstrated that people do not accurately recall what they see, a problem made far more profound by the fact that juries are likely to accord eyewitness testimony greater credence than virtually any other form of evidence.  But a growing body of research has shown that problems also arise as a result of police procedures.

The guys over at the Eyewitness Identification Reform Blog (you're really not surprised there is such a thing, are you?) chronicle an example of one such case, that of Thomas McGowan, who was convicted of rape based upon his identification from a photo array:

The photo array from which the victim selected his photograph was a sloppy collection of black and white photos, color photos, and photocopies of photos. Not surprisingly, Mr. McGowan's photo was a color original. Further, after the witness tentatively pointed to Mr. McGowan, the investigating officer insisted that the witness make a positive ID, rather than allowing her to describe her level of certainty in her own words.

McGowan spent 23 years in prison for rape -- from age 26 to age 49 -- before DNA evidence demonstrated his innocence.

In fact, the new Dallas District Attorney, noting the frequent problems with photo arrays, is proposing a double-blind lineup procedure for the arrays: the police officer who shows the witness the pictures doesn't know which picture is the suspect's, or whether he's even included in the pictures.  The use of a double-blind procedure is universally followed in all fields of research, because it eliminates any possibility of even unconscious bias; if the officer doesn't know who the suspect is, he's not going to communicate any information at all to the witness.

What struck me about this is that I've been doing this blog now for exactly two years.  Although the blog is devoted to Ohio -- that's what it says up in the corner -- I've spent a fair amount of time checking out what's happening in criminal law in other jurisdictions, and there's a lot going.  There's reform of sentencing laws, like remedying the crack-cocaine disparity, or getting away from the "lock-em-up" mentality that has resulted in the United States holding more prisoners than any other country in the world.  There's reform of criminal procedures, like video- and audio-taping all police interrogations to ensure the integrity of confessions -- about 15% of wrongful convictions stem from "confessions" by innocent people.  Discovery rules have been liberalized to reduce the possibility that exculpatory evidence might be missed.  My God, the prosecutor of Dallas -- Dallas -- is concerned enough about wrongful convictions that he's instituting identification procedures which will reduce that possibility.

None of this is happening in Ohio.  The only effort at resolving the crack-cocaine disparity was a proposal which would have simply elevated cocaine penalties to the same level as those for crack.  Sentencing is far worse now than it was before the sentencing "reforms" of 1996.  The defense bar has been trying to get fairer discovery rules for years, to no avail.  Nobody's even talking about videotaping confessions or making sure that identification procedures are fairer.  Even the Telfaire instruction, a proposed jury instruction which details the manner in which a jury should evaluate identification testimony, is of limited value:  the Ohio courts have not done anything more with the instruction than hold that the trial court has discretion whether or not to give it.

Estimates are that as many as 10% of the people convicted at trial are actually innocent.  There's all kinds of empirical research coming out now explaining how that happens, and how to prevent it.  As far as Ohio is concerned, that might as well be happening on another planet.  There's no discussion of sentencing reform -- more on that tomorrow -- and virtually no discussion of reforming criminal procedures.  Most of that stuff isn't even on the radar.  You won't find case law discussing it, you won't even find the defense bar pushing any of this stuff.

At some point in time, that's got to change.

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