Law review: Texas executed wrong Carlos based on biasing eyewitness procedures

A new e-book published by a law journal argues that Texas probably executed an innocent man in 1989, and predictably the potential cause was reliance on a single, shaky eyewitness to obtain a conviction after police allegedly picked up the wrong "Carlos." According to the Houston Chronicle:

Accounts of the crime, the investigation and DeLuna's prosecution were presented in a 400-page article published Tuesday in the Columbia Human Rights Law Review. Columbia University Law School authors argue that the crime actually was committed by Carlos Hernandez, a DeLuna acquaintance with a history of convenience store robberies. Hernandez, the article says, boasted of killing the store clerk

DeLuna was executed by injection in 1989. Hernandez died in prison, convicted of a knife attack on a female acquaintance, in 1999.

Of four people who saw events connected to the crime, only one, car salesman Kevan Baker, saw Lopez struggle with her assailant, the journal article says. Baker initially described a man who did not resemble DeLuna but changed his story after police brought DeLuna to the store.

Baker later told researchers he was only 70 percent sure of his identification, the journal says. Had police not told him DeLuna had been apprehended nearby, he would have been only 50 percent certain, he said.

A retired Corpus Christi police detective said confidential informants told him at the time they'd arrested the wrong "Carlos" for the crime, but after the eyewitness picked out DeLuna he dropped the issue because it was somebody else's case.

The Chronicle pointed out that new procedures Texas law-enforcement agencies must have in place by September 1 may mitigate such questionable IDs going forward, which is true at least to the extent departments adopt best practices enshrined in the recently developed model policy or something close to it:

Legislative sponsors of a law tightening procedures for police lineups on Tuesday faulted Corpus Christi police for allowing eyewitnesses in a 1983 convenience store robbery-murder to identify the suspect as he sat handcuffed in the back seat of a squad car.

State Sen.  Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine, stopped short of claiming Texas wrongfully executed suspect Carlos DeLuna for the February 1983 murder of store clerk Wanda Lopez.

Gallego, however, said the way Corpus Christi police handled the suspect's identification was a "textbook example" of why the system needs to be reformed.

"What appears to be very faulty eyewitness identification was the main evidence used to reach a conviction in this case," Ellis said in an email.

"... The chief witness appears to have gone back and forth on how certain he was that Mr. DeLuna was the culprit. You cannot have this level of uncertainty in death penalty cases."

The Law Enforcement Management Institute of Texas (LEMIT) at Sam Houston State which developed the model policy is currently doing train the trainer seminars to help departments prepare for the transition.

One of the LEMIT policy provisions would require departments to record eyewitness identification sessions using either video or audio, or else record the reason why that couldn't be done. And the model policy instructs officers not to share information about the suspect with a witness that might bias their memory, as was done here. Those procedures certainly may have made a difference in DeLuna's case. It's doubtful even a Texas jury in 1983 would have been so bloodhirsty as to send a man to execution based on a witness who was "50 percent certain." Indeed, without having read the massive document, on the surface there seem to be (at least) two issues here: The failure of identification procedures and a possible Brady violation if prosecutors failed to inform the defense of the witness' waffling.

In the Bible, Moses, Jesus and the Apostle Paul all iterated that at least "two or three witnesses" were necessary to accuse someone under biblical law. DeLuna's example shows why that cautionary provision is probably still a good idea. Particularly when identifying strangers, eyewitnesses can be notoriously unreliable.

DeLuna joins a notable list of "probably nots" on Texas' executed list, notes the Chronicle: "Innocence Project co-director Barry Scheck hailed the journal article as a 'terrific job,' saying that the DeLuna case will join those of Cameron Willingham, Claude Jones and Ruben Cantu in forming a stern indictment of the Texas death penalty." Grits does not share Scheck's sanguine belief that demonstrating an innocent person has been executed would result in death-penalty abolition. Grimly, the public is willing to live with a few mistakes, but the list of potential, even probable errors is growing.

Two latest Dallas DNA exonerees spent nearly 30 years behind bars

Congratulations to James Williams and Raymond Jackson, Texas' two latest DNA exonerees out  of Dallas who were liberated yesterday after a nearly unimaginable 29+ years inside based on false accusations of  rape and kidnapping. Reported a local TV station, "Their biggest hurt? Relatives, including their mothers, died believing they were criminals."

As an aside, the Fort Worth Star-Telegram coverage mentioned that "Dallas County has now exonerated 32 people since 2001, most of them during Watkins' tenure. Most of the cases -- including Monday's -- involved faulty eyewitness identifications." But it should be mentioned that that figure only includes DNA exonerations and a handful of non-DNA exoneratoins under Craig Watkins. There was also the infamous Dallas fake-drug scandal from 2001, where police officers collaborated with a corrupt informant to set up two dozen  innocent, mostly Spanish-speaking immigrants on false drug charges. Adding in those alone gets you at least 56 over that time span. Most counts you see of exonerations include only DNA exonerees,  not the large coterie of drug war cases like those in Dallas, Hearne, and Tulia.

Serendipitously, Mr. Williams "has re-connected with his childhood sweetheart, and she says they're now engaged to be married," while Mr. Jackson has reconnected with his family. Grits wishes both of them all the best.

Read more here: http://www.star-telegram.com/2012/04/30/3924291/2-dallas-men-cleared-in-1983-rape.html#storylink

Lege committee told model eyewitness ID policy mostly well received

The House Criminal Jurisprudence Committee held a hearing this week on the implementation of its eyewitness identification legislation and invited just one witness: Rita Watkins from Sam Houston State University - whose team at the Law Enforcement Management Institute of Texas drafted the model policy mandated under HB 215, a bill authored by the outgoing chairman of the committee, Pete Gallego, who is leaving the Lege after 22 years to run for Congress.

Surprisingly, there was really only one question (with a few variants) posed to Watkins: They wanted her to respond to the letter from McAllen police chief Victor Rodriguez, discussed in this Grits post. Watkins told me later the committee hadn't communicated to her to prepare for that line of questioning, but she answered well, perhaps in part because LEMIT had already prepared a extensive FAQ (pdf) responding to the Chief's unfortunately ill-informed concerns. Plus, she's been through a long process which included convening a "working group" prior to writing the model policy that included both Chief Rodriguez and your correspondent (in my role at my day job working for the Innocence Project of Texas). Then they held a public hearing at the capitol before finalizing it. At this point, Rita and her staff have been all the way around the block on this subject, and from my observation she's handled her critics - myself included, at some points in the process - with admirable aplomb.

Bottom line: The Chief wishes the bill had not passed and does not understand it, falsely believing (or at least portraying) that his department is required by law to adopt the "model policy." They're not. It's just a recommendation. If he doesn't like it, he can adopt something else. LEMIT did what the Legislature told them to do: Write a "detailed written policy" with specific "procedures" for a number of different aspects of eyewitness identifications based on scientific research and established best practices. The committee seemed satisfied with Watkins' answers and didn't appear to give much credence to the McAllen chief's oddball letter once she explained his various misconceptions.

Anyway, it sounds like there's not a major groundswell out there among law enforcement in opposition to the model policy, at least so far. Watkins said she'd been surprised to receive just eight phone calls from police chiefs about the model policy after it was published. Five of them were congratulatory, she said, and the other three were from Chief Rodriguez. Though LEMIT dubbed its response to Rodriguez an "FAQ," apparently as a practical matter those weren't questions being asked all that frequently.

Chiefs' push to weaken eyewitness ID improvements could boost market for defense experts

Law enforcement interests, both through the Texas Police Chiefs Association and individually, are seeking to undermine the new model eyewitness ID policy from Sam Houston State University's Law Enforcement Management Institute of Texas (LEMIT), produced under the auspices of a bill, HB 215, passed last year at the Texas Legislature.

LEMIT did a fine job creating the model policy (pdf), by most expert accounts, closely following the large body of research developed in the last three decades on preventing eyewitness errors. Many of their recommendations were included in best practices from the National Institutes of Justice as far back as 1999, so for the most part these are not new ideas. But some chiefs are balking at prescribing neutral witness instructions, as well as using blind administration and presenting photos sequentially. Animated by these complaints, the police chiefs association reportedly is attempting to develop its own, watered-down policy to promote among its members in lieu of the official one.

The first shot across the bow of LEMIT's model policy at the capitol came in a letter from McAllen Police Chief Victor Rodriguez (uploaded here) to Senate Criminal Justice Committee Chairman John Whitmire, offering a stream of red herrings and misinformation about the law and the new model policy. See also an informative FAQ (pdf) created by LEMIT in response to agency questions.

Under the new statute, LEMIT produced a model policy but law-enforcement agencies are not required to follow the university's advice. Local departments must enact their own "detailed written policy," including specific "procedures" in several different areas, by September of this year, but the law does not require them by any means to adopt the model. Soon after the Legislature left town, however, the Texas Court of Criminal Appeals gave departments a big, extra incentive to use LEMIT's version.

Before getting to that, however, it's worth disputing Chief Rodriquez's utterly bogus, central claim that "unless a law enforcement agency chooses to risk evidentiary admissibility of a photograph or live lineup in a criminal matter, that agency must prove up adoption of the LEMIT policy or the 'credible research' or proof of '[common acceptance]' behind that agency's adopted procedures." This is ... how may we put it delicately? A lie.

The new statute specifically says that "Evidence of compliance with the model policy or any other policy adopted under this article or with the minimum requirements of this article is not a condition precedent to the admissibility of an out-of-court eyewitness identification." (Emphasis added.) So there is literally zero, nil, zilch, nada chance that eyewitness testimony won't be admitted because of this law. "Our side" considered it a loss (I was lobbying for the Innocence Project of Texas on the subject), but the law simply did not give criminal defendants the means to keep eyewitness testimony out of evidence if lineups don't follow written policies, nor if written policies are inadequate.

Ironically, though Chief Rodriguez wants to blame the Legislature for his woes, the much more significant penalty for failing to follow best practices was laid down in October by the Texas Court of Criminal Appeals in a case called State v. Tillman (pdf).  In Tillman, Texas' highest criminal court ruled that a judge abused his discretion by failing to allow expert testimony to tell a jury about flaws in a police lineup - a truly landmark ruling for that particular court.

Combined with HB 215, however, that ruling takes on even greater weight, informing us what the real "penalty" will be if departments adopt policies not based on the LEMIT model policy or credible research: The county may have to pay for expert witnesses for indigent defendants - or allow expert testimony for defendants with their own counsel - to explain how deviation from best practices might harm the accuracy of identifications. In other words, if a local department chooses not to follow the LEMIT policy, they have a right to do so and all witness testimony will still make it into evidence. But if a department failed to follow key best practices - particularly if they overtly chose to do so by deviating from the LEMIT policy - it seems hard (at least for this non-lawyer) to see how judges could interpret Tillman any way other than to require judges to admit expert testimony critical of the deviant policy - to do otherwise, according to Tillman, would constitute an abuse of discretion..

So no, eyewitness testimony will NOT be thrown out if local departments don't use LEMIT's model policy. But counties may have to pay for expert witnesses that wouldn't be necessary if law-enforcement agencies based their policies on science instead of habit and folklore. Further, LEMIT's model policy could provide courts a handy guideline as to whether a local policy deviates from best practices. Though at this point we may only speculate, Grits won't be surprised if the LEMIT policy becomes the de facto standard by which Texas judges analyze whether the defense gets a Tillman expert.

Finally, at the Innocence Project of Texas (IPOT, from whom your correspondent draws his main paycheck) we're planning to ask under open records for eyewitness ID policies at more than 1,000 Texas law-enforcement agencies this fall after the deadline passes for policies to be finalized. IPOT will evaluate policies based on compliance with LEMIT's published model policy, grading each to identify which followed best practices and which are deficient. So now judges have a standard to judge whether a deviant policy or procedure violates best practices (LEMIT's model policy), and by the end of the year they'll a handy list of departments whose base policies fail to pass muster.

It's true, then, that there will be a lot of pressure on local departments to simply adopt the LEMIT policy, with most of it coming from the judiciary and the court of public opinion, as opposed to any language in HB 215. Eyewitness testimony in all cases will remain admissible under the new law, regardless of what local policies are adopted or whether they're followed. But the CCA has created a greater incentive for compliance in Tillman than the Lege could last year muster. Color Grits unsurprised that there are police chiefs out there grousing about the new statute and the contents of the model policy, even if their complaints come a day late and a dollar short.

See related Grits posts:

• Model eyewitness ID policy includes sequential presentation
• Public hearing on eyewitness ID model policy
• Will new Texas eyewitness ID law reduce false convictions?
• Onus on state, local departments to improve eyewitness testimony
• Court of Criminal Appeals: Trial court abused its discretion by disallowing eyewitness ID expert
• Model policy under development on eyewitness ID procedures
• Slow but steady progress toward improving eyewitness identification
• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• Eyewitnesses in staged test only 8% accurate
• More on the fallibility of eyewitness testimony
• Eyewitnesses miss big changes in their environment, like the person in front of them 
• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices
• Why Carl Reynolds would make a lousy witness

Model eyewitness ID policy includes sequential presentation

The new eyewitness ID model policy has been released by the Law Enforcement Management Institute at Sam Houston State. I haven't had a chance to vet the document in full, so will reserve comment except to happily note that the policy suggests both blind and sequential presentation of photo arrays, instead of showing them as a group. The model policy directs officers to "Present each photo to the witness separately (one at a time), in order. When the witness is finished viewing the photo, have the witness hand the photo back." That was one of the biggest bones of contention between social scientists, advocates and law-enforcement in the "working group" which your correspondent participated in on behalf of the Innocence Project of Texas, so that's a big get. They also appear to have reinstated a lot of the procedural detail that appeared in an earlier draft but was absent from the version put out prior to the recent public hearing.

More on this after the holiday, when I can go over it in detail and consult with folks who know more about such things than me. But I'm glad to see sequential presentation included, and pleased to see the process moving along on schedule.

Local Texas law enforcement agencies that do lineups or photo arrays must have detailed written policies in place by September 2012 governing how they're performed, and I suspect many will just adopt LEMIT's model policy and (one hopes) begin training on it. (At most departments, currently, lineup procedures may differ from detective to detective, with no written policies governing them.) As such, LEMIT's model will be critically important in setting a benchmark for what should be in those local policies. Given that mistaken eyewitness IDs account for 75-80% of false convictions, the statute is a big step forward.

See related Grits posts:

• Public hearing on eyewitness ID model policy
• Will new Texas eyewitness ID law reduce false convictions?
• Onus on state, local departments to improve eyewitness testimony
• Court of Criminal Appeals: Trial court abused its discretion by disallowing eyewitness ID expert
• Model policy under development on eyewitness ID procedures
• Slow but steady progress toward improving eyewitness identification
• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• Eyewitnesses in staged test only 8% accurate
• More on the fallibility of eyewitness testimony
• Eyewitnesses miss big changes in their environment, like the person in front of them 
• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices
• Why Carl Reynolds would make a lousy witness

'No Country for Innocent Men'

In a article with the same title as this post, Mother Jones takes a in-depth look at Timothy Cole's false conviction and the sad, bizarre circumstances that caused Governor Rick Perry to pardon a dead man. See a related sidebar from the story estimating how many innocent people are still in prison.

Public hearing on eyewitness ID model policy

Photo via Slate

Yesterday as part of my day job, I attended a remarkable public hearing at the capitol by the Law Enforcement Management Institute of Texas (LEMIT) out of Sam Houston State University, held to accept comments on their draft model policy on police eyewitness identification procedures, which they're statutorily required to finalize by the end of the year. (I uploaded written comments on the policy from the Innocence Project of Texas, authored by yours truly, onto Google Documents, for anyone interested in more detail.)

A handful of law-enforcement interests were there with critical messages (most notably Houston police detective Mark Holloway, who held his witness card so he could testify at the end of the hearing without rebuttal). But the drama was provided by seven exonerees who between them had spent 169 years in prison for crimes they didn't commit based on erroneous IDs. I've now sat through perhaps two dozen or more hearings, meetings and other events over the years where these fellows or their fellow exonerees tell their stories, and it never ceases to be moving for me. I forget, though, how powerful these stories can be for folks hearing them first-hand for the first time. And they clearly had an effect on both the LEMIT staff and even the cops who testified. (Detective Holloway said with a sigh as he began his testimony that it had been a "rough afternoon.") LEMIT's Rita Watkins and several folks testifying apologized on behalf of the system to the exonerees.

As an aside, I can't tell you how proud I am of the exonerees who've consistently remained active as various innocence-related bills wended their way through the legislative process over the last several sessions, and now even at the level of implementation after the eyewitness reform bill passed. Yesterday those there were Charles Chatman, Johnny Pinchback, James Giles, Billy Smith, Christopher Scott, Cornelius Dupree, and Johnnie Lindsey. Their stories help ground such events - which could be dry and technocratic, if the cops had their way - in the real-world consequences that befall when the systems established to protect against false convictions fail to filter out erroneous testimony.

Perhaps even more dramatic was testimony from the very first witness, Michele Mallin, the rape victim who falsely identified Timothy Cole, along with Cole's half-brother Cory Session (my colleague at the Innocence Project of Texas). Cory told LEMIT that his family had reconciled with and embraced Michele because everyone knew that the false conviction resulted from a biased and flawed system, not any malice or ill-will on her part. The photo array Michele viewed wouldn't remotely pass muster under the new standards, and confirming statements by the police that she'd picked the right guy wouldn't have been allowed. She emphasized that she never knew about certain exculpatory evidence - e.g., that Timothy Cole was an asthmatic non-smoker while the man who raped her was a chain smoker. She pleaded with the LEMIT staffers - who were all attentively on the edge of their chairs - to use the best science possible in developing the policy.

Dr. Karen Amendola urged LEMIT to prioritize sequential administration (i.e., showing the photos one at a time), declaring that the recent million-dollar study (pdf) from the American Judicature Society (see Grits' discussion here) not only confirms virtually all the other research but in terms of methodology and resources is the best, most comprehensive field study we're likely to ever get. Houston PD Detective Mark Holloway lamented that there are only 7 field studies and 65 lab studies showing sequential presentation to be preferable, saying more research is needed. But Amendola told LEMIT there was plenty of research to go on now.

ACLU of Texas suggested that the language on interpreters be changed from requiring someone who is "fluent" to requiring certification as an interpreter, citing a couple of common certification bodies.

Rebecca Brown from the national Innocence Project has likely forgotten more about lineups and eyewitness identification issues than I will ever know, so I was especially glad she came into town to participate, walking the LEMIT academics through where their draft follows current research and best practices and where it veers off track. She emphasized that the body of the policy needed to be more detailed, that there's no reason to prefer live lineups over photo arrays (as the draft model policy inexplicably did), and that "fillers" should be chosen to match the witness description of the suspect, NOT the suspect themselves. She included a lot of other detail, as well, that I'm afraid didn't make it into my notes. (Advocates in Texas relied on the expertise of the national Innocence Project folks pretty heavily in vetting these policies, and I couldn't be more grateful for their enthusiastic assistance.)

A representative of Texas Association Against Sexual Assault was generally in favor of the policy but was worried that sexual assault victims might be uncomfortable if a lineup procedure is recorded. He suggested an opt out on recording specifically for sexual assault victims. The TX Police Chiefs Association expressed a similar concern about victims and recording lineup presentations.

I began my comments by reminding the LEMIT folks that modern memory research has found eyewitness evidence is in many ways a form of "trace evidence," and like other trace evidence it can be easily contaminated during the collection process. I offered a conservative guess that, according to the best estimates, somewhere between 2,000 to 3,000 innocent people are presently incarcerated in TDCJ, and faulty eyewitness identification was the cause in 75-80% of the cases.

I quickly walked through IPOT's specific concerns from our written comments, and in closing reminded the academics that, despite pleas for flexibility from law enforcement, their model policy will not be binding. Departments who think their special circumstances justify ignoring the science can adjust their local policies accordingly, but LEMIT is charged with creating a model based on the current science and best practices as they're presently understood. If they do that, they'll create a model not just for Texas departments but something that will have national import.

A couple of statements from LEMIT staff make me hopeful the current draft will be improved. Dr. Phillip Lyons spoke up specifically to say they planned to re-include much of the detail that had been omitted from an earlier draft circulated to the working group they'd convened in Huntsville, much of which had been relegated to an appendix. Doing so will allay quite a few concerns. And LEMIT chieftan Rita Watkins responded to the Detective Holloway at the end of the meeting to say they intended to stick with sequential presentation in their model policy because it's what the best science says to do at the moment.

If they follow that standard on the handful of decisions still confronting them (at least the ones raised at the hearing), Grits, and more importantly the innocence-related groups represented at the hearing are likely to be pleased with the final model policy. The devil is in the details, though, and you never know until the final version is released. Anyway, I left the event feeling optimistic about the process and content of the model policy so far.

You can watch the three-hour hearing online here.

Public hearing to evaluate eyewitness ID model policy

Tomorrow I'll be spending my afternoon at a public hearing  at the capitol to discuss the draft model policy on eyewitness identification procedures for potential use by Texas law-enforcement agencies. In the statute, HB 215, the Bill Blackwood Law Enforcement Management Institute of Texas (LEMIT) out of Sam Houston State was charged with creating a model policy, with input from law enforcement and special interests like my employers at the Innocence Project of Texas (I participated in their working group as part of my day job). They'll receive public comment through tomorrow's hearing and then come up with a final version in the next couple of weeks.

Hopefully the MSM will pick up on the story, which hasn't yet gotten a lot of attention but which will affect law-enforcement agencies in every corner of the state. Here are the public hearing details if you're interested in attending, either to testify or just to watch:

WHAT:          Bill Blackwood Law Enforcement Management Institute (LEMIT) will hold public hearings on its new eyewitness identification policy.

WHO:             Cory Session, Innocence Project of Texas Policy Director; Rebecca Brown, Innocence Project Senior Policy Advocate for State Affairs; Michele Mallin, a rape victim whose eyewitness testimony lead to Timothy Cole’s wrongful conviction; Seven Texas exonerees: Charles Chatman, James Giles, Johnnie Lindsey, Johnnie Pinchback, Christopher Scott, Billy Smith and James Waller.

WHEN:          Thursday, December 1, 2011

1:00-4:00 p.m.

6:00-9:00 p.m.

WHERE:       State Capitol             

                        House Hearing Room E2.030 (located in the Capitol Extension)

                        Austin, TX

It's nice of them to add the extra time in the evening for folks who can't make it there during the workday, but I know most of the experts, exonerees and advocates, your correspondent included, are planning to testify in the afternoon session.

Once LEMIT has published its model policy, local law enforcement agencies must produce their own departmental policies by September of next year. Those policies don't have to use language from LEMIT's model, but if history is any guide, most of them will. (The Innocence Project of Texas plans to request all those local policies - more than 1,000 of them - under open records next fall to determine which departments included all the important elements and which ones are still using inadequate procedures.)

For many years eyewitness testimony was considered gold standard evidence in court. Today, scientists understand that it's really a form of "trace" evidence, and like any trace evidence it can be contaminated during its collection. In this case, though, rubber gloves, tweezers and zip-locs won't do the trick. Enacting procedures like those required in the new law and actively training detectives on acceptable methods is the only long-term way to change what's happening at the police station when these lineups are performed.

If LEMIT's model and local departmental policies, in their final form, end up based on nationally recognized best practices, as the legislation clearly calls for - including criteria for filler choice, blind administration, sequential presentation, witness admonishments, the gathering of confidence statements, etc. - it will improve the reliability of  eyewitness testimony by reducing (though not eliminating) errors on the front end. As a practical matter, every false accusation prevented on the front end is far preferable to exonerations decades after the fact, which are endlessly thrilling but also always bittersweet.

I'll update this post later today to add a link to the IPOT's written testimony, which I'm presently finalizing, and with a link to a live video feed for tomorrow if and when I find one.

RELATED: From the national Innocence Project blog: "The Role of Memory in Eyewitness Identification."

UPDATE: Go here for live streaming beginning at 1 p.m. on Thursday, Dec. 1.

See related Grits posts:

• Will new Texas eyewitness ID law reduce false convictions?
• Onus on state, local departments to improve eyewitness testimony
• Court of Criminal Appeals: Trial court abused its discretion by disallowing eyewitness ID expert
• Model policy under development on eyewitness ID procedures
• Slow but steady progress toward improving eyewitness identification
• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• Eyewitnesses in staged test only 8% accurate
• More on the fallibility of eyewitness testimony
• Eyewitnesses miss big changes in their environment, like the person in front of them 
• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices
• Why Carl Reynolds would make a lousy witness

Will new Texas' eyewitness ID law reduce false convictions?

Photo via Slate

In a short piece at the Austin Chronicle on Texas' new eyewitness ID law and the draft model statute, Jordan Smith wonders "how quickly the policy might be adopted" at Austin PD, leading me to point out that, by statute, local departments must adopt eyewitness ID policies by September 2012. That's why the Sam Houston State Law Enforcement Management Institute of Texas has to produce a "model policy" by the end of the year to give them time to develop their own policies, using the components in the SHSU model as guidance. (See SHSU's draft policy; they're presently soliciting public comments between now and Nov. 30 before the policy is finalized in December.)

Smith mentions as one flashpoint the odd assertion in the model policy Grits disputed earlier, that "live lineups are preferable to photo IDs because 'witnesses typically view perpetrators of crimes in three dimensions.'" I agree, I hope that's omitted from the final version. But Jordan failed to point out that, with that notable exception, the rest of the draft model policy, though perhaps not written as clearly or organized as well as one might prefer, mostly contains the key "best practice" elements which national standards and memory researchers have encouraged departments to include in such policies. It could stand to be tweaked but they didn't do a terrible job.

However, Smith expresses skepticism about the new law's ultimate impact that I do not share, though I know where it comes from (indeed, it comes in part from my boss at the Innocence Project of Texas, Jeff Blackburn, who's been spreading this meme): I just consider it a result of courtroom lawyers' myopia. Smith's article concluded: "Without any enforcement mechanism, it is unclear how quickly the policy might be adopted – and whether the new procedures will reduce the instance of mistaken identifications. Indeed, the new law contains no provision to keep out of evidence identifications made outside the parameters of the model policy."

What she means is, although a defense attorney can question police in front of a jury about why they didn't follow their policy, the eyewitness testimony still gets in. Regrettably, and for reasons I'll never fully understand, back in 2009 when the bill language was being negotiated, the Texas Criminal Defense Lawyers' Association vigorously opposed inclusion of a "jury instruction" in lieu of the exclusionary rule (which the Governor's office had said would draw a veto) as a remedy. Exhibiting all the subtlety and foresight of a kamikaze pilot, after working as hard as they could to neuter the bill, TCDLA then opposed it for being too weak. (In 2011, a different lobbyist for the group supported the watered-down version of the bill that eventually passed.)

Chart from this report (pdf) from the national Innocence Project

When a trial lawyer says there is no remedy, they mean that, at trial, if eyewitness evidence gathered via flawed procedures is introduced and the defense objects, they cannot get it excluded or even be certain of a jury instruction, though under a recent precedent they possibly can get an expert witness to explain problems with the lineup and the sources of eyewitness error. So jurors may hear experts question the validity of a problematic lineup or photo array under Texas law, but courts are not required to exclude testimony gathered under questionable circumstances, nor even to instruct the jury that failing to follow best practices increases the likelihood of error.

That's a legitimate critique, and from the perspective or a courtroom advocate, I might agree with it. But here's what it misses: 97% of criminal convictions are plea bargained and never reach a jury trial. Many more are dismissed after eyewitness evidence is discredited on the front end. Plus many eyewitnesses are wholly credible: E.g., witnesses who previously knew the suspect don't suffer the same memory problems as those trying to identify strangers. So in the vast majority of cases involving eyewitness evidence, that lack of a courtroom remedy for the 3% of cases that go to trial doesn't really matter. The number of cases in which such a remedy might come into play would be symbolically important but statistically de minimis.

Meanwhile, 88% of Texas departments have no written policy at all on how to handle eyewitness identifications, and only a few of those with written policies follow anything close to best practices. Forcing departments to think through these issues, examine SHSU's model policy and others, decide on a method, then train on it over time will be a big improvement compared to the current practice, where methods differ not just from department to department but literally from detective to detective.

So from a public policy perspective, this statute will encourage consistency, uniformity (at least within departments and to a large extent across agencies) and training on a subject presently governed by departmental lore supplemented by examples from TV detective shows. From past experience, you can expect the majority of Texas 1,000+ departments that perform lineups (with the likely exception of some of the largest ones, which will write their own from scratch) to adopt the LEMIT policy wholesale, or at least in large part. So it's important for LEMIT to end up with the best model policy possible.

Once local policies are in place next September, my employers at the Innocence Project of Texas will be gathering as many as possible under the Public Information Act and grading local policies to identify those following best practices and those whose policies are deficient. So there will be at least some external oversight to ensure local policies aren't a complete joke, even if it's not from a government agency. I'm looking forward to that project.

Certainly Grits would prefer that the law had more "teeth" - if police failure to comply with proper procedures garnered a jury instruction, for example, or if departments didn't have the option to adopt a weaker policy. But this was the compromise achieved at the Lege, and compared to the status quo the law at least provides a starting point for improving police practices, certainly compared to the absolute void that preceded the bill. Departments with no policies (88% of them) where procedures vary from officer to officer will now have to decide how they want to perform lineups, write it down, and train everybody on the same method. Even if it's not precisely the method Grits, the Innocence Project, the National Institute of Justice, or LEMIT might prefer, once it exists in writing, it's possible to argue to change it. And of course it's always possible to go back to the Lege to add a remedy in the future if departments react with extreme noncompliance. While this bill was an important first step, I don't suspect it will be the last word on eyewitness identification procedures at the Texas Legislature.

See related Grits posts:

• Onus on state, local departments to improve eyewitness testimony
• Court of Criminal Appeals: Trial court abused its discretion by disallowing eyewitness ID expert
• Model policy under development on eyewitness ID procedures
• Slow but steady progress toward improving eyewitness identification
• SCOTUS to reevaluate eyewitness IDs
• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• Eyewitnesses in staged test only 8% accurate
• More on the fallibility of eyewitness testimony
• Eyewitnesses miss big changes in their environment, like the person in front of them 
• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices
• Why Carl Reynolds would make a lousy witness

Onus on state, local departments to improve eyewitness testimony

The issue of eyewitness identification has been much in the news this week, with the US Supreme Court hearing oral arguments on the subject yesterday and, here in Texas, Sam Houston State University (SHSU) coming out with its draft of a model policy for Texas police departments on how to conduct eyewitness IDs.

Draft TX eyewitness ID policy released
Readers will recall that Texas passed legislation this year mandating law enforcement agencies establish detailed written procedures for eyewitness ID, directing a police training center at SHSU to develop a draft model policy. (In the interest of full disclosure, your correspondent lobbied for the bill at the Legislature on behalf of the Innocence Project of Texas and participated in a working group convened by SHSU on the subject.)

At present, 88% of Texas law enforcement agencies have no written policies on how to conduct lineups. Typically practices differ not only from department to department, but from detective to detective. Only a handful of Texas departments - notably led by Dallas PD - have policies that actually represent best practices developed through the scientific research. Under the statute, departments must adopt their own policies - either using the SHSU model or one of their own choosing - by September of next year.

To their credit, SHSU does tell agencies to use sequential presentation (showing photos one by one) instead of group photo arrays. Though language in the policy which describes "Conducting the photo array" fails to mention sequential presentation, in an appendix the explicit instructions to witnesses say, "The photos will be shown to you one at a time and are not in any particular order." One hopes that provision won't change - and preferably will be strengthened and included in the main body of the policy - after the end of the public comment period.

SHSU advocating the sequential method is good news because, as Patricia Kilday-Hart reported in the Houston Chronicle on Monday, law enforcement pushed hard for a model policy allowing group presentation. However in the latest, most comprehensive study in a long list of research on the topic (described here), group photo arrays were found to generate 50% more errors - 18% picked "fillers" in group arrays compared to just 12% with sequential presentation. It would have been hard for SHSU to claim they were recommending "best practices" if they suggested a method producing half-again as many errors.

Still problematic, though, SHSU suggests that "Because witnesses typically view perpetrators of crimes in three dimensions, a live lineup offering a three dimensional view is preferable." But that view flies directly in the face of research on the topic. In practice, even non-witnesses are able to pick suspects out of live lineups with greater frequency than chance because they pick up facial and body language cues based on fear or psychological stress from the person accused. Photos provide a more neutral medium. Further, particularly in smaller agencies, it's a LOT easier to find appropriate fillers in a photo array than for a live lineup. (See this video describing how photo fillers are compiled electronically by police in the UK.)

Given that the statute told SHSU to base its model policy on "credible field, academic, or laboratory research on eyewitness memory," Grits cannot imagine why they would "prefer" a live lineup method that's more likely to bias results. SHSU's original draft included no such preference, so this provision clearly resulted from lobbying by law-enforcement interests, though I don't understand the reasoning behind it.

At this point, Grits views obstructionist efforts by the police chiefs association and others in law enforcement as strangely at odds with those groups' own self-interest. That's because the Texas Court of Criminal Appeals earlier this fall ruled that a trial court abused its discretion by not allowing expert testimony on the credibility of eyewitness procedures, meaning that if agencies don't follow best practices they'll later find themselves embarrassed in court. If they use a group photo array, for example, police can expect an expert witness to tell the jury the chance of error is 50% higher than if photos were shown one by one. Given that, why not just get it right on the front end?

(If you want to comment on the SHSU draft policy, the email address is lemitresearch@shsu.edu.)

Little help expected from SCOTUS
Coincidentally, the US Supreme Court yesterday heard oral arguments on eyewitness procedures, though SCOTUSBlog reports that "the Court very likely will decide this case, Perry v. New Hampshire (10-8947), without overruling any of the eyewitness case precedents going back to 1957." Instead, a majority on the court appear to view this case as an opportunity to promote the "casting aside of the Due Process Clause as a barrier to unreliable criminal evidence," which is a disturbing and disappointing take on how that case should be decided. At The Crime Report this week, attorney and author James Doyle predicted just that outcome:

It’s true that the criminal justice system is absorbing the science of eyewitness evidence. But it is also true that different components of the system are reacting to the science in different ways and at different speeds.

The police are leading the way; judges are bringing up the rear. The real story that the Perry case may ultimately tell is that the courts are fighting a determined rearguard action aimed at holding off the full mobilization of the lessons of eyewitness science.

In Texas' case, Mr. Doyle perhaps overstates the extent to which "police are leading the way," but clearly he had his finger on the pulse of the Supreme Court. Preventing the "full mobilization of the lessons of eyewitness science" appears to be exactly where SCOTUS is headed.

That said, the question before them was pretty narrow. Noted SCOTUSBlog, "the only issue that the Court had agreed to review was whether the absence of any police manipulation of that witness was sufficient to have allowed the identification to be put before the jury." So it's possible this case may be decided in favor of the state without causing too much damage. But in an era when much common evidence in criminal trials has been called into question - from eyewitness IDs to flawed forensics - it will be unfortunate if SCOTUS undertakes a long-term project of reducing barriers to introducing unreliable evidence. (See the transcript from the case here [pdf]; Grits may have more to say on the subject once I've had a chance to read it in more detail.)

Bottom line: It's a good thing the state of Texas is working to bring science into the police station and the courtroom on this question, because the US Supreme Court seems highly unlikely to do so.

MORE: See coverage of the SCOTUS arguments from the Washington Post, the New York Times, the Los Angeles Times, and Slate. AND MORE: From the American Constitution Society and Amnesty International. The New York Times had a followup editorial arguing that "The Supreme Court should maintain the law’s focus on reliability — and require that courts keep out unreliable identification that is likely to prejudice a verdict."

See related Grits posts:

• Court of Criminal Appeals: Trial court abused its discretion by disallowing eyewitness ID expert
• Model policy under development on eyewitness ID procedures
• Slow but steady progress toward improving eyewitness identification
• SCOTUS to reevaluate eyewitness IDs
• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• Eyewitnesses in staged test only 8% accurate
• More on the fallibility of eyewitness testimony
• Eyewitnesses miss big changes in their environment, like the person in front of them 
• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices
• Why Carl Reynolds would make a lousy witness

Court of Criminal Appeals: Trial court abused discretion by disallowing eyewitness ID expert

The Texas Court of Criminal Appeals today issued a remarkable, unanimous opinion (pdf) reversing the judgment of the 14th Court of Criminal Appeals (Houston) to hold that a trial judge abused his discretion in refusing to allow expert witness testimony by Dr. Roy Malpass of the University of Texas at El Paso about the potential pitfalls of eyewitness identification in a capital murder case.

The opinion (State v. Tillman), authored by Judge Barbara Hervey, cited the host of false convictions based on faulty eyewitness identifications discovered through DNA exonerations, as well as a well-developed body of scientific research critiquing over-reliance on eyewitness identification errors:

Nationwide, 190 of the first 250 DNA exonerations involved eyewitnesses who were wrong. BRANDON L. GARRETT, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9, 279 (2011). In Texas, reports indicate 80 percent of the first 40 DNA exonerations involved an eyewitness identification error. Innocence Project of Texas, Texas Exonerations–At a Glance (2011), http://ipoftexas.org/index.php?action=at-a-glance.

In a recent opinion of the Supreme Court of New Jersey, New Jersey v. Henderson, 2011 N.J. LEXIS 927 (N.J. Aug. 24, 2011), the court focused on the reliability of an eyewitness identification. The New Jersey court discussed the broad consensus within the scientific community on the relevant scientific issues. Id. at 113-15. Specifically, the court referred to the results of a 2001 survey of sixty-four experts, mostly cognitive and social psychologists:

Ninety percent or more of the experts found research on the following topics reliable: suggestive wording; lineup instruction bias; confidence malleability; mugshot bias; post-event information; child suggestivity; alcohol intoxication; and own-race bias. . . . Seventy to 87% found the following research reliable: weapon focus; the accuracy-confidence relationship; memory decay; exposure time; sequential presentation; showups; description-matched foils; child-witness accuracy; and lineup fairness.” Id. at 113-14 (citing Saul M. Kassin et al., On the “General Acceptance” of Eyewitness Testimony Research: A New Survey of the Experts, 56 AM. PSYCHOLOGIST 405, 407 (2001)).

The Supreme Court of New Jersey went on to note that, in the ten years since the Kassin study, the consensus that the study of eyewitness identification is a reliable field of research has continued to grow. Id. at 114-15. And the court highlighted that law enforcement and reform agencies throughout the country have taken note of the scientific community’s findings, forming task forces and developing new procedures to improve the reliability of eyewitness identifications. Id. at *115-21. Additionally, the United States Supreme Court recently granted certiorari on another case involving the reliability of eyewitness identification. Perry v. New Hampshire, 79 U.S.L.W. 3672 (U.S. May 31, 2011) (No. 10-8974).

In this instance, the witness in question first viewed a photo spread including the suspect and failed to identify him, but a week later viewed a live lineup including the same man and identified him there. Malpass would have testified that the process was overly suggestive because the witness could have remembered the man from the earlier photo spread instead of from the crime event. According to Malpass, more than 30 studies have studied that specific scenario and concluded that it contributed to higher error rates.

The appellate court's ruling was reversed and the opinion was sent back to them for a harm analysis, but this is the first time the Court of Criminal Appeals has overruled a trial court's exclusion of expert testimony on eyewitness identification errors based on an "abuse of discretion" standard, which means we may expect such testimony to be allowed in courtrooms much more frequently in the future. The CCA said that such testimony may not be relevant in all cases involving eyewitnesses, but where the scientific research "fits" closely with the facts of the case, it must be allowed.

MORE (10/6): From the Fort Worth Star-Telegram and the Dallas News.

Model policy under development for eyewitness ID procedures

On Friday I was in Huntsville to attend a working group meeting at Sam Houston State University, where academics at the Law Enforcement Management Institute of Texas (LEMIT) are preparing a state-mandated model policy on eyewitness identification procedures. Perhaps 40 people were there, including representatives from law enforcement, prosecutors and a handful of advocates including yours truly (attending on behalf of the Innocence Project of Texas) rounding out the mix.

LEMIT was charged in legislation passed this spring with creating a model policy for dissemination to law enforcement agencies that conduct eyewitness identification procedures. Agencies are not required to adopt what LEMIT comes up with, but in the past, when this same structure was used for creation of racial profiling policies, most agencies adopted the model policy or something pretty close to it.

I won't post their draft since the document hasn't been finalized, but I was pleased to see that the initial version produced by the folks at LEMIT - led by Dr. William Wells - relied closely on best practices and the latest science in the field regarding blind administration, admonitions to witnesses, sequential presentation, and documenting witness reactions. The science underlying the suggested policy is quite well developed at this point, Dr. Wells told the group, and is remarkable for the level of consensus demonstrated on best practices.

Perhaps the most disputed element of the policy was reliance on sequential presentation, but arguments against that method were undercut significantly by a just-released study (the most comprehensive of its kind, described here) which found witnesses choose "fillers" (non-suspects) 12% of the time in sequential lineups and 18% of the time when photos are presented in a group. A robbery detective from Houston opined that the peer-review process on that study hasn't been completed and these were only preliminary findings. But peer review won't change the raw data, and a 50% higher error rate for the group presentations - to this writer, anyway - seems like too big a difference to ignore.

The issue is whether the witness is comparing the photo they're looking at to their own memory or to others in the array. Group presentations, the theory goes, encourage witnesses to pick the subject that looks most like the perpetrator among the available options, instead of comparing each one directly to the image they recall. Human memory is less reliable than courts and juries have often supposed. Research developed over the last three decades or so has demonstrated eyewitness testimony is essentially "trace evidence," and like other trace evidence it may be easily contaminated using shoddy collection techniques.

Some law enforcement folks at the event seemed to be in a state of denial. The police chiefs association argued that the draft LEMIT policy was too detailed, including elements that shouldn't be considered "policy" but fall more in the realm of "procedures." This struck me as downright bizarre, not only because LEMIT was charged with creating a "detailed written policy," but because the statute in at least four different places directed them specifically to write "procedures" for various aspects of live lineups and photo arrays. The distinction being suggested by law enforcement interests would contradict the plain language of the statute (in case anybody cares about such things).

Indeed, hanging their hat in part on this spurious distinction between policies and procedures, a breakout group made up of law enforcement folks declined to come up with specific recommendations during the working group meeting, apparently hoping they could slow-walk the matter and delay the process. But SHSU must soon publish their draft in the Texas Register so they can receive formal public comment and finalize it by a statutory deadline in December. Participants in that subgroup were encouraged to stay after the event to complete their recommendations or to provide them via email in the next couple of weeks.

Court of Criminal Appeals Judge Barbara Hervey spoke up to debunk complaints that blind administration would be too difficult for small agencies to implement, demonstrating the simplicity of the "folder method" of blind administration, where photos are placed in file folders, shuffled, and presented sequentially so that the officer administering the procedure doesn't know which one is the suspect. That method was suggested by LEMIT as an alternative for smaller agencies to a truly blind administrator who's not one of the investigators in the case. In serious cases, though, if an agency is so small it can't provide a blind lineup administrator, they probably should be calling in the Texas Rangers or seeking help from larger agencies.

At the end of the event, a police chief approached your correspondent to provide his own department's newly developed policy and offered a rather odd warning. He opined that, just like with the racial profiling law, some agencies will refuse to create policies and just do whatever they want, predicting that such recalcitrance would cause the statute to be ineffective. By that logic, though, laws against murder, theft and drug taking are ineffective because, despite the statutes, some people still murder, steal, or take drugs. He's probably right some agencies will flout the law or adopt policies that fail to accept the state of modern science on eyewitness IDs. But in an environment where most agencies currently have no policies at all, my sense is that most departments will adopt acceptable policies and most officers will follow them.

Bottom line: This bill wasn't even controversial at the Legislature, so if too many agencies balk at implementing best practices, they risk the Lege returning to the subject and imposing more prescriptive rules in the future, without the discretion afforded in the current statute.

 See related Grits posts:

• Slow but steady progress toward improving eyewitness identification
• SCOTUS to reevaluate eyewitness IDs
• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• Eyewitnesses in staged test only 8% accurate
• More on the fallibility of eyewitness testimony
• Eyewitnesses miss big changes in their environment, like the person in front of them 
• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices
• Why Carl Reynolds would make a lousy witness

Slow but steady progress toward improving eyewitness identification

In the wake of a landmark decision from the New Jersey Supreme Court mandating blind, sequential police lineups in that state ("blind" meaning the lineup administrator doesn't know who is the suspect, "sequential" meaning photos are shown one at a time rather than in a group), a new study adds to the growing body of evidence that police eyewitness identification procedures need reform. Via AP:

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.

"What we want the witness to do is don't decide who looks most like the perpetrator, but decide whether the perpetrator is there or not," said Gary Wells, an eyewitness identification expert at Iowa State University and the project's lead researcher.

You can view a copy of the study here (pdf) and listen to audio of a press conference releasing the study results here (5mb wav file). The sequential method in particular significantly improved accuracy. In the study, "fillers" (i.e., non-suspects) were wrongly identified 12% of the time in sequential lineups compared to 18% in photo arrays presented as a group, according to press accounts. Austin PD was one of four departments participating in the inquiry.

Texas law enforcement agencies will soon have an opportunity to implement this advice. (Dallas PD was an early adopter of the improved methods.) This year the legislature finally passed a statute which will eventually lead to all Lone Star law enforcement agencies developing policies for eyewitness identifications. (A whopping 88% have no written policy, found a 2008 study.) The new law ordered the Law Enforcement Management Institute of Texas at Sam Houston State University to develop a model policy that departments could (but don't have to) follow, and LEMIT has convened a working group this Friday in Huntsville to give input to the academics charged with developing it. That model policy must be completed by the end of the year, then departments have until Sept. 1, 2012 to adopt their own.

(In the interest of full disclsure, I lobbied for the new statute on behalf of the Innocence Project of Texas as part of my day job, and will be participating in the LEMIT working group on Friday.)

In the New Jersey Supreme Court ruling, reported the New York Times:

the court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures are flawed and can send innocent people to prison. By making it easier for defendants to challenge witness evidence in criminal cases, the court for the first time attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.

“No court has ever taken this topic this seriously or put in this kind of effort,” said Gary L. Wells, a professor of psychology at Iowa State University who is an expert on witness identification and has written extensively on the topic. 

The notable flaw in Texas' statute is precisely that the Legislature failed to enact "consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications." If departments don't follow their own, written policies, defense lawyers can raise the issue in court but there's no pretrial hearing required, tainted evidence would not be excluded (Governor Perry's folks had said the bill would be vetoed if the exclusionary rule applied), and thanks to (IMO bizarre) opposition by the criminal defense bar, there isn't even a jury instruction if the cops don't follow their own rules.

Even so, Texas' new statute should improve the process in most cases once local departments have adopted written policies. Police won't want to be embarrassed in court or the media for not following their own procedures, and simply training on improved practices and putting the policies in writing should cause most officers to (eventually) acquiesce and embrace the new approach. If departments do routinely flout lineup policies, there's always the option of going back to the Lege down the line to create a remedy for violations.