http://theadvocate.posterous.com The online presence of the Kentucky Department of Public Advocacy journal posterous.com Fri, 30 Nov 2012 08:36:00 -0800 Oregon Supreme Court Establishes New Procedures to Determine the Admissibility of Eyewitness Identification Evidence- Innocence Blog http://theadvocate.posterous.com/oregon-supreme-court-establishes-new-procedur http://theadvocate.posterous.com/oregon-supreme-court-establishes-new-procedur

In State of Oregon v. Samuel Adam Lawson, the Oregon Supreme Court established new procedures to determine the admissibility of eyewitness identification evidence today. The case revised previous reliability tests and will now require that courts review eyewitness testimony in a manner consistent with the vast research in the area of eyewitness identification and memory. The court’s ruling reflected many of the legal arguments set forth by the Innocence Network in its friend-of-the-court brief.
 
Lawson, who will now receive a new trial, was convicted of murder based largely on an eyewitness’ account from the victim’s wife two years after the incident. The identification was aided by the lead investigator in the case who showed her a picture of Lawson and then escorted her to a pre-trial hearing so she could get a second look.
 
The Oregon Court of Appeals found Hilde’s identification to be valid based on a 33-year-old case, State v. Classen. However, the Supreme Court unanimously disagreed in an 80-page opinion by Justice Paul J. De Muniz citing serious concerns regarding the reliability of the identification. The Oregonian reports:

"In light of current scientific knowledge regarding the effects of suggestion and confirming feedback," De Muniz concludes that questions about the reliability of the ID evidence admitted at trial are impossible to ignore and remands the case to trial court for a new trial.

 


Among Classen's many problems, De Muniz notes, is that the law's "burden-of-proof structure improperly requires defendants who have filed pretrial motions to exclude eyewitness identification evidence to first establish than an identification procedure was suggestive, even though the state -- as the administrator of that procedure -- controls the bulk of the evidence in that regard."


The ruling comes soon after a similar landmark decision from New Jersey’s Supreme Court required major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries. The Oregon decision goes further than the New Jersey court in protecting against wrongful convictions based on misidentification in several important respects.  The new Oregon test shifts the burden to the state to establish that the evidence is admissible. If the state satisfies its initial burden, the court charges that judges may still need to impose remedies, including suppressing the evidence in some circumstances, to prevent injustice if the defendant establishes that he or she would be unfairly prejudiced by the evidence.   
 
Read the full article.
 
Read the full opinion.

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Tue, 28 Feb 2012 05:18:00 -0800 KY COA Feb 17th - Parker - Eyewitness Identification http://theadvocate.posterous.com/ky-coa-feb-17th-parker-eyewitness-identificat http://theadvocate.posterous.com/ky-coa-feb-17th-parker-eyewitness-identificat

Parker v. Commonwealth, 2010-CA-001371, To Be Published—

The Court of Appeals reversed the trial court’s denial of suppression.  The purse snatch victim was shown still photos pulled from store surveillance camera and then asked to identify the co-defendant, who named Mr. Parker.  Mr. Parker joined in suppression motion filed by co-defendant.  Commonwealth was prevented from asserting standing defense for first time on appeal and the Court held on the merits that the trial court had abused his discretion in not suppressing bad identification when Commonwealth produced no evidence to support a finding on 3 of the 5 Biggers factors.

Contributed by Erin Yang

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Wed, 11 Jan 2012 09:35:00 -0800 Eyewitness Identification - Supreme Court Opinion Issued http://theadvocate.posterous.com/eyewitness-identification-supreme-court-opini http://theadvocate.posterous.com/eyewitness-identification-supreme-court-opini

The Supreme Court opinion in Perry v. New Hampshire is available in Adobe .pdf format.

The inital AP report is, "Court rules against man convicted by eyewitness ID.

from SCOTUSblog

Justice Ginsburg announced the first opinion of the day, in Perry v. New Hampshire. By a vote of eight to one, the Court affirmed the decision of the New Hampshire Supreme Court, holding that the Due Process Clause does not  require an inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances by law enforcement. Justice Thomas filed a concurring opinion; Justice Sotomayor filed a dissenting opinion.

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Wed, 30 Nov 2011 06:32:00 -0800 Memory and Eyewitness Testimony http://theadvocate.posterous.com/memory-and-eyewitness-testimony http://theadvocate.posterous.com/memory-and-eyewitness-testimony

In spite of statistics showing that eyewitness misidentification is the most common element in all wrongful convictions later overturned by DNA evidence, witness testimony has remained a gold standard of the criminal justice system, according to The New York Times.

For the first time in three decades, the validity of using eyewitness testimony has come under review by the Supreme Court in a case involving a New Hampshire man who was convicted of theft based on the identification by a woman who saw him from a distance in the dead of night.

Earlier in the year, the New Jersey Supreme Court issued a landmark decision requiring major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries. The new changes require courts to greatly expand the factors that courts and juries should consider in assessing the risk of misidentification.

When selective attention combines with fear, "you have a very strong memory for a few details," said Elizabeth Phelps, a psychology professor at New York University. "Emotion gives us confidence more than it gives us accuracy."

The problem comes when witnesses bring that certainty to the entire memory. In crimes that involve a weapon, Dr. Loftus and other scientists have found that witnesses will fixate on the gun barrel or knife blade but will fail to notice other details as clearly. Yet because they so starkly remember particulars of the weapon and may have the accuracy of parts of their memory affirmed by police officers and prosecutors, witnesses carry an air of assurance into the courtroom.

Read the full article.

Understand the causes of eyewitness misidentification
.

Read about sequential lineups and the recent report: A Test of Simultaneous vs. Sequential Lineup Methods: An Initial Report of the AJS National Eyewitness Identification Field Studies

Source - Innocence Project Blog

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Mon, 19 Sep 2011 11:40:00 -0700 AJS - A Test of the Simultaneous vs. Sequential Lineup Methods http://theadvocate.posterous.com/ajs-a-test-of-the-simultaneous-vs-sequential http://theadvocate.posterous.com/ajs-a-test-of-the-simultaneous-vs-sequential

Cover Image of Report

The analysis of over 850 lineups collected across four sites: the Austin (TX) Police Department, the Charlotte-Mecklenburg (NC) Police Department, the Tucson (AZ) Police Department, and the San Diego (CA) Police Department has been completed. 

To view the report, click here. 

To see a list, prepared by the Innocence Project, of jurisdictions that conduct double-blind sequential lineups, click here.

The initial report follows a landmark decision by the New Jersey Supreme Court (State vs. Larry R.  Henderson) requiring changes in the way courts evaluate eyewitness identification evidence at trial and how juries should be instructed.  The decision takes into account over 30 years of eyewitness identification and memory research. 

Dr. Gary L. Wells, Director of Social Sciences for the AJS Center of Forensic Science and Public Policy and the principal investigator of the EWID Field Studies, was recently interviewed by the New York Times in response to the Supreme Court decisions and the implications it may have on police lineup investigative techniques.  A copy of the article, “Police Lineups Start to Face Fact: Eyes Can Lie,” is available here

Study aims to alter the way police conduct lineups  by Nedra Pickler

A new study says those lineups you see on television crime dramas and often used in real-life police departments are going about it all wrong.

The study released Monday by the American Judicature Society is part of a growing body of research during the past 35 years that questions the reliability of eyewitness identifications under certain circumstances. That research has been taken more seriously in recent years with the evolution of DNA evidence clearing innocents of crimes they were convicted of committing, often based on eyewitness testimony.

The new study finds witnesses should not look at a group of people at once to pick a perpetrator. Instead, they should look at individuals one-by-one with a detective who doesn't know which is the real suspect - known as a double-blind lineup to avoid giving witnesses unintentional cues - preferably on a computer to ensure appropriate random procedures are used and to record the data.

The study found witnesses using the sequential method were less likely to pick the innocents brought in to fill out the lineup. The theory is that witnesses using the sequential lineup will compare each person to the perpetrator in their memory, instead of comparing them to one another side-by-side to see which most resembles the criminal.

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Wed, 07 Sep 2011 04:03:00 -0700 Lexington Herald Leader - Reform Urgent to Protect Innocent http://theadvocate.posterous.com/lexington-herald-leader-reform-urgent-to-prot http://theadvocate.posterous.com/lexington-herald-leader-reform-urgent-to-prot

Miscarriage of Justice

We hope that by the time you read this, Kerry R. Porter will be a free man, after serving 14 years in prison for a murder he did not commit.

....

Porter's story is the nightmare of a society that values liberty and justice. There are steps lawmakers and courts must take to avert more such nightmares.

The editorial explains reforms needed to eyewitness identification, eligibility for DNA testing, disclosure of new evidence and compensation to those wrongfully convicted.  Kerry Porter is represented by the DPA's Kentucky Innocence Project.

 

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Thu, 25 Aug 2011 05:26:00 -0700 New Jersey Supreme Court Issues Landmark Decision Mandating Major Changes in the Way Courts Handle Identification Procedures http://theadvocate.posterous.com/new-jersey-supreme-court-issues-landmark-deci http://theadvocate.posterous.com/new-jersey-supreme-court-issues-landmark-deci

Innocence Project Press Release

Relying on Scientific Research on Memory and Identification, Court Says Standard Set by U.S. Supreme Court 30 Years Ago Must Be Revised

Yesterday  the New Jersey Supreme Court issued a landmark decision requiring major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries.  The new changes, designed to reduce the likelihood of wrongful convictions by taking into account more than 30 years of scientific research on eyewitness identification and memory, require courts to greatly expand the factors that courts and juries should consider in assessing the risk of misidentification.   

“The New Jersey Supreme Court has said that the legal architecture set by the U.S. Supreme Court 30 years ago to evaluate identification evidence must be renovated. This is a decision that will ultimately affect every state and federal court in the nation,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “The court has recognized the tremendous fallibility of eyewitness identifications, and based on the most thorough review of scientific research undertaken by a court, has set up comprehensive and practical guidelines for how judges and juries should handle this important evidence.”

The court’s decision requires judges to more thoroughly scrutinize the police identification procedures and many other variables that affect an eyewitness identification. The court noted that this more extensive scrutiny will require enhanced jury instructions on factors that increase the risk of misidentification. These factors include: 

• Whether the lineup procedure was administered “double blind,” meaning that the officer who administers the lineup is unaware who the suspect is and the witness is told that the officer doesn’t know.
• Whether the witness was told that the suspect may not be in the lineup and that they need not make a choice.
• Whether the police avoided providing the witness with feedback that would cause the witness to believe he or she selected the correct suspect.  Similarly, whether the police recorded the witnesses’ level of confidence at the time of the identification.
• Whether the witness had multiple opportunities to view the same person, which would make it more likely for the witness to choose this person as the suspect.
• Whether the witness was under a high level of stress.
• Whether a weapon was used, especially if the crime was of short duration.
• How much time the witness had to observe the event.
• How far the witness was from the perpetrator and what the lighting conditions were.
• Whether the witness possessed characteristics that would make it harder to make an identification, such as age of the witness and influence of alcohol or drugs.
• Whether the perpetrator possessed characteristics that would make it harder to make an identification.  Was he or she wearing a disguise?  Did the suspect have different facial features at the time of the identification?
• The length of time between the crime and identification. 
• Whether the case involved cross-racial identification.

To provide courts with these more enhanced jury instructions, the court gave the Criminal Practice Committee and the Committee on Model Criminal Jury Charges 90 days to submit proposed revisions to the current jury instructions on eyewitness identification, specifically directing them to consider the model jury instructions submitted by the Innocence Project.

The court’s decision stems from the 2004 conviction of Larry Henderson, a Camden man who received an 11-year prison sentence for reckless manslaughter and weapons possession related to a fatal shooting in January 2003. He appealed the photo lineup procedure because officers failed to follow the New Jersey Attorney General’s Guidelines, issued in 2001, for conducting identification procedures. The appeals court agreed and ordered a new hearing on the admissibility of the photographic identification of Henderson. Before that could occur, the state appealed, and the New Jersey Supreme Court decided that an extensive inquiry into witness identification procedures currently used by law enforcement was necessary.

The New Jersey Supreme Court appointed a Special Master to review the legal standard for the admissibility of eyewitness testimony known as the “Manson test,” established by the United States Supreme Court in 1977 and fully embraced by 48 out of 50 states, including New Jersey in 1988 in State v. Madison.  In addition to the parties to the litigation, the court invited the Innocence Project and the Association of Criminal Defense Lawyers of New Jersey to participate in an inquiry by the Special Master who considered over 200 scientific studies and heard from some of the nation’s most respected experts on eyewitness identification before issuing findings to the court in June 2010. 

The court remanded the Henderson case back to the trial court for further review in accordance with the decision. The decision will apply to all future cases, but will not be applied retroactively with the exception of the companion case, State v. Chen, in which the court held that suggestive identification procedures that resulted from private actors would also be subject to court scrutiny to ensure the reliability of the identification.  

Download the decision here

Download the legal findings that the Innocence Project submitted to the court, which includes the model jury instructions
.

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of the 273 convictions overturned through DNA testing. Additional information about eyewitness misidentification is available here

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Mon, 22 Aug 2011 19:41:00 -0700 Supreme Court to Revisit Eyewitness Identification - NY Times http://theadvocate.posterous.com/supreme-court-to-revisit-eyewitness-identific http://theadvocate.posterous.com/supreme-court-to-revisit-eyewitness-identific

34 Years Later, Supreme Court Will Revisit Eyewitness IDs

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Indeed, there is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years.

What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

more on Eyewitness Misidentification from the Innocence Project

Read more about the case before the Supreme Court, Perry v. New Hampshire.

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Wed, 17 Aug 2011 10:06:00 -0700 "Getting it Right" Videos from The Innocence Project http://theadvocate.posterous.com/getting-it-right-videos-from-the-innocence-pr http://theadvocate.posterous.com/getting-it-right-videos-from-the-innocence-pr

The Innocence Project today launched a new multimedia resource on the central causes of wrongful convictions and proven reforms to prevent injustice.  "Getting it Right"  features videos, case studies and in-depth research on forensics, false confessions, eyewitness identification, informant testimony, defense representation and conduct by police and prosecutors.

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Sat, 23 Apr 2011 07:56:00 -0700 New Series on Eyewitness Misidentification http://theadvocate.posterous.com/new-series-on-eyewitness-misidentification http://theadvocate.posterous.com/new-series-on-eyewitness-misidentification

Brandon Garrett analyzes the fundamental issues surrounding eyewitness misidentification in a new series for Slate. After carefully studying the first 250 cases of wrongful convictions, Garrett-a law professor at the University of Virginia School of Law-notes that "eyewitness misidentifications were the single greatest cause of flawed evidence."

Garrett highlights the case of Ronald Cotton to pinpoint some of the key factors that cause faulty identifications. North Carolina college student Jennifer Thompson misidentified Ronald Cotton as her rapist, leading to Cotton spending 10 years in prison before DNA finally exonerated him in 1995.

Ronald Cotton and Jennifer Thompson will be featured speakers at the KBA 2011 Convention in Lexington on June 15th. 

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Jennifer Thompson-Cannino and Ronald Cotton

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