DNA exonerations given attention by national media
CNN ran a story today on DNA exonerations in Texas, and the faulty eyewitness identifications that caused many of the wrongful convictions. The story was first reported by the Dallas Morning News, and Grits has been following it as well.
Faulty eyewitness testimony that helped secure wrongful convictions in Dallas County, which leads the nation in DNA exonerations, sent the innocent to prison as police and prosecutors ignored safeguards and built cases with flimsy corroboration, according to a newspaper investigation.Victims pressured to pick suspects, the use of suggestive lineup procedures and evidence withheld to preserve shaky identifications are former practices discovered by The Dallas Morning News in an eight-month review of previously closed Dallas County case files.
Faulty eyewitness identification procedures and Brady violations by the government (withholding key evidence that could be exculpatory) are the leading reasons for wrongful convictions. Despite great strides that have been made in eyewitness identification research, identifying the problems inherent in eyewitness ID procedures, many states' courts still cling to antiquated jury instructions and allow even admittedly tainted procedures into evidence.
Show ups are a common source of error, where the police will locate a suspect and bring him or her to the witness for identification. Usually police will have only a general description to begin with, such as race and clothing, and when they find a person wearing similar clothing and show the person to the victim or witness, the witness may be ID'ing the clothes as much as the face. Also, the witness is thinking, why would the police be showing me this person unless they thought they had the right guy?
Jurors believe a witness based on their certainty, and jury instructions often tell the jury to consider the witness' certainty when judging the witness' credibility. But consider, for example, a show up procedure. The police bring the suspect in handcuffs, and say this is the guy? If the witness identifies that person, the face that they will remember from that point forward is the suspect's face that was shown to them by the police (if the suspect is not the person who committed the crime, this is called memory source error).
Following the show up procedure, the police will often then conduct a line-up or a photographic array, where 6 photos are shown to the witness, one of which is the suspect. The witness identifies the suspect that was shown to them by the police during the initial encounter. Often the police will, intentionally or unintentionally, give positive feedback to the witness (good, you got the right one). Before trial, the witness is interviewed by the prosecutor, who will want the witness to testify that they are absolutely certain they picked the right guy. The witness is certain that they are identifying the correct person in court, when it began with only an identification of color of clothing.
Consider the typical 6 photo array that is shown to witnesses. The suspect's photo is placed into the array, with 5 fillers that should look like the suspect. Even if this is done correctly, with similar individuals with the same skin color, hair type, height, weight, etc., the witness is going to pick the individual who most resembles the person they remember seeing. The photo array is basically a multiple choice test, and "none of the above" is not an option (although some agencies do give the witness a form that says the suspect may not be in the group). Once the witness selects the photo that most resembles the perpetrator, then memory source error kicks in, that is the face that they remember, and they will later testify with absolute certainty that the suspect is in fact the person they saw commit the crime.
The better way to conduct a photo identification would be to show the witness a series of photos, one at a time, basically a series of true/false tests rather than a multiple choice test. Assuming that there was not a prior show-up identification, and that the officer conducting the test is not giving conscious or unconscious clues as to which photo the suspect is. The officer administering the line-up should not know who the suspect is, which prevents conscious or unconscious suggestion by the officer and prevents positive feedback following the identification, which results in inflated witness certainty.
Why are there so many exonerations in Texas, bringing attention to the problems in eyewitness identification? Because in Texas DNA evidence is preserved following trial, and inmates are allowed access to test that DNA. Prosecutorial misconduct, Brady violations, perjured testimony by jailhouse snitches, and eyewitness identification errors happen everywhere, including in South Carolina. But there is no system in place in S.C. for the wrongfully convicted to prove their innocence.
South Carolina has a bill pending that will provide for preservation of DNA evidence and provide access to DNA testing for inmates. Before passage the bill was combined with another provision that allows DNA samples to be taken from defendants who have been arrested but not convicted, and our governor vetoed the bill. In January, the legislature will have the chance to look at this bill again, override the governor's veto, or go back to square one with the two separate bills as it should have been to begin with. However it is done, the many exonerations in Texas and other states have proven the importance of having access to DNA evidence in post-conviction proceedings.
Related posts:
Sanford vetoes South Carolina DNA testing bill
DNA testing bill waiting for governor's signature
Texas 32, South Carolina 1
DNA testing bill update
Post-Conviction DNA Testing Procedures Act waiting for Senate approval in South Carolina
