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Actual innocence and mistaken identification

"Our procedure has been always haunted by the ghost of the innocent man convicted."

That observation was made by Judge Learned Hand in a case back in 1923.  Those of us in the criminal justice system keep that ghost at bay by reminding ourselves that the vast majority of accused criminals plead guilty, and that with all those constitutional protections, and the greater precision of forensic science technologies...  Well, yes, innocent people are convicted from time to time, but it can't be very many.

Maybe, and maybe not.  A month ago, I wrote a post about 174 people who'd been imprisoned and had their convictions overturned when DNA evidence subsequently exonerated them.  I mentioned then that mistaken eyewitness identification was the  major factor in almost 75% of those wrongful convictions.  

Now, 174 cases isn't a lot -- we have over 2,000,000 people in prison right now -- but there are an awful lot of cases where DNA evidence plays no part, despite what people who watch CSI might think.  How many cases have you had which were dependent solely on eyewitness testimony?  Gary Graham was executed in Texas back in 2000 based solely on the testimony of a witness who'd seen him for a few seconds from 40 feet away; prior to picking him out of a lineup, she'd been shown a picture of him alone.

I mentioned a month ago that while reforms of identification procedures were taking place elsewhere (even the Dallas County Prosecutor -- Dallas -- was instituting them), the pace of reform in Ohio ranged from glacial to non-existent.  I said at the time that the defense bar wasn't even pushing any of this, and that this had to change.

Well, I'm going to do my small part for change.  Most of the people who read this blog are criminal attorneys (though not all, as I learned last week).  So, for those of you who do practice criminal law, some suggestions on what to do with the case that rests on identification:

First, become conversant with the proposed reforms in police procedures.  The Wisconsin Attorney General published a policy manual requiring certain procedures be followed, and the manual contains an excellent summary of the science behind the requirements.  At the least, it'll give you some ideas for cross-examination and voir dire

On that subject, spend some time figuring out how you're going to attack the identification, from pretrial on.  There's some excellent stuff out there on that, like this article, which gives some tips on educating the jury about the identification process and its pitfalls.

While you're educating the jury, don't forget educate the judge.  You're doing that for a couple of reasons.  First, you're likely to file a motion to suppress the pretrial identification, and secondly, you'll want to ask for jury instructions on the subject.  Filing a motion with a bit of heft to it -- making the judge aware of the recent research and case law on the problems of misidentification -- goes a long way toward that.  This amicus brief by the Center on Wrongful Convictions contains just about everything you'd want on those subjects.  You don't have to use the whole thing (no duh), but check because it might contain stuff that's especially helpful for you.  For example, did you know that there's substantial research to show that the presence of a weapon during the crime significantly reduces the witness' ability to make a correct identification?  It's called "weapon focus," and there's even case law indicating that expert testimony on the subject is proper.

As for the motion to suppress, one case you'll want to include is the 8th District's decision in State v. Williams, which I discussed in detail here.  It's one of the very few reversals of a trial court's denial of a motion to suppress an ID, and contains an excellent analysis of the factors a judge should weigh.

in the event that you've got a client with money to spend, you might want to have him cough up some for expert testimony, and there are a number of resources available for that.  Keep in mind that, at least according to this study, if the prosecution gets their own expert, it'll pretty much cancel out yours.  Also keep in mind that while the use of expert testimony on eyewitness identification has been sanctioned since 1985 in Ohio, the expert can only testify as to problems with eyewitness identification in general, rather than the problems with a particular witness.

And those jury instructions?  You should of course ask for the Telfaire instruction.  And yes, I know, in Ohio the question of whether to give the instruction is "a matter committed to the sound discretion of the trial court," as is just about everything else anymore.  But if you've done a good job educating the judge, you're likely to have him exercise discretion in your favor, and if he doesn't and the right kind of case, you might have laid sufficient groundwork for getting an appellate court to agree that the discretion was abused.  In fact, don't necessarily stop with a Telfaire instruction.  There's abundant research which shows that "cross-racial" identifications are even more unreliable than ones where the suspect are of the same race as the person making the identification.  Here's a case where the New Jersey Supreme Court reversed a robbery and rape conviction because the trial judge refused to give a charge on cross-racial identification.

Don't be afraid to be bold.  One of the major problems here is that the legal standards for testing the reliability of identifications, particularly the key Supreme Court case of Manson v. Brathwaite, were established over thirty years ago, and the research since then has undercut much of the rationale for those standards.  (For example, one of Manson's key criteria for determining reliability of the identification is the degree of confidence of the person making it; research, however, shows that's virtually irrelevant in determining the accuracy of the identification.)  If you really want to be proactive, you might want to check out this law review article, which summarizes some of the problems with Manson and makes arguments for how the legal standards should evolve to what we now know about the identification process.  This isn't pie-in-the-sky stuff.  Several courts have moved beyond Manson; the Georgia Supreme Court, for example, has directed that jurors no longer be instructed to consider an eyewitness's confidence in evaluating the identification.

There's a lot of stuff that needs to be done here.  It's getting done in other states, and there's no reason it can't be done here in Ohio.

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