Criminal Justice Section
Criminal Justice Magazine
Volume 19 Number 4
CONVICTING THE GUILTY, ACQUITTING THE INNOCENT:
THE ABA TAKES A STAND
By Andrew E. Taslitz
Andrew E. Taslitz, is a professor of law at the Howard University School of Law, an immediate past member of the ABA’s Criminal Justice Section Council, and current chair of the editorial board of Criminal Justice magazine. He is also a member of the ABA’s Ad Hoc Committee on Innocence and the Integrity of the Criminal Justice System, acting as chair of the Subcommittees on Eyewitness Identification and Media and Education.
During 2004, the ABA House of Delegates adopted as ABA policy five resolutions by the Criminal Justice Section Council designed to improve the justice system’s accuracy in convicting the guilty while acquitting the innocent. These resolutions had their genesis in the work of the Section’s Ad Hoc Committee on Innocence and the Integrity of the Criminal Justice System. The five resolutions represent the start, but not the end, of the committee’s work, with additional resolutions now being debated in the Council. Nevertheless, the adoption of just these five current resolutions as ABA policy marks an important milestone in addressing the problem of wrongful convictions of the innocent. If these policy recommendations are enacted into law or adopted as standard practice by legislatures and police departments around the country, that should lead to tremendous improvements in public safety by better identifying the guilty, while also improving public confidence in American justice by freeing the innocent.
The problem of wrongful convictions has recently made its way into popular media, with television shows, novels, and news magazines offering numerous images of men convicted of crimes that they did not commit. (See, e.g., DONALD DRIPPS, ABOUT GUILT AND INNOCENCE: THE ORIGINS, DEVELOPMENT, AND FUTURE OF CONSTITUTIONAL CRIMINAL PROCEDURE 175 (2003) (“A continuing stream of high-profile cases of wrongful convictions floods the newspapers.”).) Time, Newsweek, and other national magazines have run extensive stories about the causes of wrongful convictions. New embarrassments for criminal justice reach the press each day. As I write these words, the national media have just reported on evidence that a forensic scientist in Houston, Texas, may have falsified the results of hundreds, perhaps thousands, of forensic tests that led to the convictions of equal numbers of persons whose guilt is now in doubt. (See Ralph Blumenthal, Lost Evidence Is Found in Houston Crime Lab: Items Uncovered Include Body Parts, N.Y. TIMES, A12 (August 27, 2004).) Meanwhile, revelations of mistakes made by eyewitnesses confidently, but mistakenly, identifying innocent individuals as wrongdoers have reached sufficient numbers that some police departments and prosecutors’ offices have voluntarily undertaken reform efforts in this area, while a nationwide conference of law enforcement, legislators, and researchers has been organized to assist in promoting the urgency of informed efforts to do better. (See Conference Invitation, Reforming Eyewitness Identification: Convicting the Guilty, Protecting the Innocent, held at the Cardozo Law School, New York City, September 12-13, 2004).)
The mistakes made that have drawn the media’s attention have mostly been in capital cases. But exploration of the causes of error in these cases has suggested that similar causes are at work in the far larger pool of more run-of-the-mill criminal cases. With rare dissent, few justice system participants doubt that the great majority of those convicted are, indeed, guilty. The rate of error is hard to estimate and widely disputed. Nevertheless, given the enormous size of our criminal justice system, even a very small error rate means that tens of thousands of innocent persons may be under the supervision of the criminal justice system at any given time. (See Ronald Huff, Wrongful Conviction: Causes and Public Policy Issues, 18:1 CRIM. JUSt. 14 (Spring 2003).) Correspondingly, similar numbers of the guilty may escape punishment, sometimes leading to explosive evidence of their continuing commission of serious offenses. (See, e.g., TRANSCRIPT, NATIONAL PUBLIC RADIO Talk of the Nation: The Concept of False Confessions and Its Relevance in the Central Park Jogger Case (December 20, 2002).) Identifying such mistakes after they are made is critical but far more difficult, slow, and costly than preventing error in the first place. The new ABA policies, therefore, stress error-avoidance over error-correction, though bettering both methods is within the policies’ goals.
The new ABA policies cover five major subjects: eyewitness identifications (lineups and photo spreads), confessions, forensic evidence, law enforcement training, and prosecutorial policy. The policies in these areas have immediate implications for legal practice and law enforcement planning and are summarized in this article.
Eyewitness identifications: The problem
Perhaps one of the most infamous cases of eyewitness error was that of Calvin C. Johnson, Jr., exonerated by DNA evidence after serving more than 15 years of a life sentence for rape. (See CALVIN C. JOHNSON, JR., with GREG HAMPIKIAN, EXIT TO FREEDOM: THE ONLY FIRSTHAND ACCOUNT OF A WRONGFUL CONVICTION OVERTURNED BY DNA EVIDENCE xci-xvii, 73-74, 84-133, 239-47 (2003) (summarizing the case).) “Ms. Mitchell,” a white rape victim who passed in and out of consciousness during an assault in near-darkness, identified the black-and-white photograph of the African-American Johnson from a photo spread that also included a number of full color pictures. But Mitchell did so only after having selected someone other than Johnson during a live lineup. Furthermore, she had, at the request of the police, attended a preliminary hearing, and watched another victim identify Johnson, on another rape charge against him—one in which he was eventually acquitted by evidence so persuasive that the victim’s father congratulated Johnson on the outcome. Moreover, concerning Mitchell’s rape, the police reported finding a single African-American pubic hair on her body, a hair that police forensics twice concluded could not have been Johnson’s.
Furthermore, Johnson had a full beard at the time of his lineup, yet Mitchell described her assailant as clean-shaven or, at most, sporting some “stubble.” The lineup was, however, held so close to the crime that it would have been impossible for Johnson to have grown his very full, bushy beard so quickly. Johnson also offered alibi witnesses at trial.
Nevertheless, after Mitchell identified him at trial, the jury convicted the innocent defendant. When this error finally came to light, the prosecutor’s office announced that too much time had passed to determine who was the real rapist. Forensics sciences professor Greg Hampikian later explained: “The DA has more pressing needs than to reinvestigate a sixteen-year-old case, especially without an available victim; meanwhile, someone has gotten away with rape.” (Id. at 281.)
The causes of eyewitness misidentification
Calvin Johnson’s case underscores the major factors creating risks of eyewitness misidentification. Many eyewitnesses believe, at least subconsciously, that their assailant “must be” in the lineup or photo spread. Accordingly, they often guess at a choice rather than truly recognizing that person as the perpetrator. (See Steven Penrod, Eyewitness Identification Evidence: How Well Are Witnesses and Police Performing?, 18:1 CRIM. JUST. 37, 37-45 (2003).) They make their guess using “relative judgment processes,” that is, by selecting the person in the lineup or photo spread who looks most like the wrongdoer rather than picking someone whom they are convinced is an exact match. (See, e.g., Michael J. Saks, et al., Model Prevention and Correction of Erroneous Convictions Act, 22 ARIZ. ST. L.J. 665 (2001).) Moreover, the detective administering an identification procedure can unwittingly encourage a guess, for example, by smiling or nodding the head slightly or even just widening the eyes as the witness focuses attention toward the suspect. (See Wells et al., supra, at 617.) Cross-racial identifications are also more likely than intraracial ones to be mistaken. (See generally American Psychological Association, Special Symposium Theme: The Other Race Effect and Contemporary Criminal Justice: Eyewitness Identification and Jury Decision Making, 7 PSYCH,. PUB. POL’Y & L. 3-262 (2001).) If “foils”—those persons other than the suspect appearing in the lineup or photo spread—are selected to look more like one another than like the witness’s description of the attacker, or if their appearance is too significantly different from the suspect’s, that introduces an additional risk of error. (See Penrod, supra at 45-46.) Witness certainty likewise tends to rise over time. Thus witnesses making a tentative identification at a lineup but told that they selected the “right man” will at trial be supremely confident in their decisions. (See id., at 46;
BRIAN CULTER, EYEWITNESS TESTIMONY: CHALLENGING YOUR OPPONENT’S WITNESSES 24-25 (2002).) Juries tend to give great weight to confident identifications, even though the research shows that there is often little, if any, correlation between eyewitness confidence and eyewitness accuracy. (See Wells, supra; CUTLER, supra.) Indeed, the research suggests, juries, because of their unawareness of the sources of error and the limited evidence enabling them fairly to re-create the circumstances of the lineup or photo spread, find it hard to judge when well-meaning eyewitnesses are just plain wrong.
Why Calvin Johnson was misidentified
Mitchell’s identification of someone other than Johnson at the lineup suggests a willingness to guess. Suggestive factors included her presence at a hearing in another rape case at which Johnson was identified, and her viewing a photo spread combining Johnson’s black-and-white photograph with color photos. Including the full-bearded Johnson in a lineup stemming from a case in which the victim described her assailant as clean-shaven or sporting only stubble suggests lack of law enforcement care in designing an identification procedure in which each participant matches the witness’s description of the perpetrator in important details. Using Johnson’s photo in a spread arranged after the witness failed to identify him in the lineup also raised the risk that Mitchell identified him because she knew she had seen his face somewhere before (she had, namely in the lineup), but wrongly assumed that that place was during the crime itself, a phenomenon known as “unconscious transference.” (CUTLER, supra, at 21-22.) The cross-racial nature of the identification (white victim, black suspect), created still more danger of error. And Mitchell, under the stress of a terrifying assault by a stranger in darkness and while fighting to stay conscious, likely had little time or opportunity to observe and accurately remember that stranger’s face.
Mitchell’s confidence in her identification of Johnson also apparently rose from a tentative one at the lineup to a more certain one at trial. The jury, being guided by common sense rather than largely undisputed science, failed adequately to appreciate the risks of mistake and, accordingly, made one.
The ABA’s solution
The ABA’s policy on eyewitness identification procedures seeks to minimize these risks of error via guidelines based on an extensive body of social science research, while allowing enough flexibility for local change to proceed consistently with available resources and with the needs of the individual case. The policy attacks the problem at both ends—reducing the risks of error while increasing the jurors’ ability to spot those mistakes that still do occur.
Reducing the risk of error
The eyewitness policy requires police and prosecutors to: (1) craft detailed guidelines for conducting lineups and photo spreads in a manner that maximizes their accuracy, (2) give their personnel periodic training on how to implement such guidelines, (3) create internal mechanisms for enforcing and updating those guidelines, and (4) train their personnel in nonsuggestive techniques for interviewing witnesses. To make these general principles concrete, the policy urges that every set of guidelines addresses at least the subjects, and incorporates at least the social scientific teachings and best practices, set forth in the American Bar Association Statement of Best Practices for Promoting the Accuracy of Eyewitness Identification Procedures dated August 2004 (Statement of Best Practices).
The Statement of Best Practices tries to reduce the risk, and impact, of guessing in a number of ways. Lineups and photo spreads are to be “double-blind,” that is, administered by a detective who, like the witness, has no idea which of the lineup or photo spread participants is the suspect. The lineup administrator must instruct witnesses that the perpetrator may or may not be in the lineup; that they should not assume that the administrator knows who is the suspect; and that they need not identify anyone but, if they do so, they will be expected to state in their own words how certain they are of any identification they make or the lack thereof.
Lineups and photo spreads should also use a sufficient number of foils to reasonably reduce the risk of an eyewitness selecting a suspect by guessing rather than by recognition. The reason for this is straightforward. If there are six lineup participants, none of whom is guilty, there is a one-in-six chance that a guessing eyewitness will wrongly select the suspect. If there is a 10-person lineup, the risk of a mistake falls to one in ten. There is no indisputable basis for selecting one number over another. What is clear is that bigger is better. Researchers in the area have roundly condemned the six-person lineup common in the United States, recommending a 10-person size. (Penrod, supra, at 45; Roy Malpass, General Principles of Lineup Fairness Evaluation, available at www.eyewitness.utep.edu/consult04.html (last visited April 13, 2004).) The United Kingdom’s standard is a nine-person lineup, a size that has not proven impracticable for the police to achieve. (Penrod, supra, at 45). The same principle applies to photo spreads, and the ABA policy does not make any recommendation preferring lineups over photo spreads or vice-versa. Photo spreads are indeed apparently becoming more widely used than lineups because of the speed and ease with which a photo spread can be done compared with a live lineup. (David A. Fahrenthold, Lack of Suspect Look-a-Likes Helps Lineup Demise, WASH. POST, April 19, 2004 at A01.) New computer technology permits creating a well-designed spread on a personal digital assistant (PDA) in under half an hour. (See Otto H. Maclin et al., PCE Basic: A Computerized Framework for the Administration and Practical Application of Research in Eyewitness Psychology (March 2004) (paper presented at the 2004 Annual Conference of the American Psychology and Law Society).) Although some law enforcement agencies still prefer live lineups, the British experience suggests that larger lineups are achievable if there is a will to do so. (Fahrenthold, supra, at A01.) The bottom line is that, while the policy specifies no precise lineup or photo spread size, new technologies and law enforcement experience combined with the teachings of social science support as an aspiration acceptance of the idea that, in the area of identification procedures, bigger is better. Many researchers insist that increasing lineup and photo spread size is the single most important reform for improving eyewitness accuracy. (See, e.g., Penrod, supra.)
The vast majority of social scientists favor another reform that the ABA policy does not yet enthusiastically embrace: the “sequential” lineup or photo spread. (See id. at 46; Saks, Model Act, supra, at 686; Gary L. Wells, Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 L. & HUMAN BEH. 603, 639 (1998); Saul M. Kassin, On the “General Acceptance” of Eyewitness Testimony Research: A New Survey of the Experts, 56 AM. PSYCHOLOGIST 405, 410-11 (2001).) Lineups and photo spreads are traditionally done using “simultaneous” methods, meaning that the witness views all the participants at the same time. As discussed above, this procedure encourages relative judgment processes in which the witness searches for the participant who looks most like the perpetrator.
“Sequential” methods seek to correct for this problem by showing witnesses one person or photo at a time. For each person shown in a sequential lineup, witnesses must state whether that person is or is not the wrongdoer. When the witnesses identify someone, the sequential process generally stops, the witnesses never seeing the faces of the remaining participants. The hope is to encourage “absolute” judgment processes in which witnesses identify someone whom they recognize as the perpetrator rather than selecting someone who, among the options offered, looks most like the perpetrator. Defenders of sequential methods argue that the research confirms that the sequential approach does in fact decrease mistaken identifications with little, if any, significant loss in correct identifications. (See Penrod, supra, at 46 (summarizing the research).)
A small but growing group of dissenters, including some of the most respected members in the field, however, questions whether the research has sufficiently proceeded to know when, if ever, sequential or simultaneous methods work best. (Ebbe B. Ebbesen and Heather D. Flowe, Simultaneous v. Sequential Lineups: What Do We Really Know?, available at www.ucsd.edu%7eebbesen/Simbeg.htm2003; Dawn E. McQuiston, Roy S. Malpass & Colin Tredoux, Sequential v. Simultaneous Lineups: A Review of Method and Theory (draft); Amina Memon and Fiona Gabbert, Unraveling the Effects of Sequential Presentation in Culprit Present Lineups (in press); Kassin, supra.) Some of these critics, for example, consider the loss in correct identifications in sequential lineups to be more than minimal. Some of the critics worry too that the practicability of sequential methods over simultaneous ones in real-world conditions has not been adequately tested, especially because all researchers agree that sequential methods are actually worse than simultaneous ones if not combined with double-blind methods. This is so because, if witnesses identify someone based on the administering detective’s inadvertently suggestive behavior, the sequential lineup or photo spread stops, giving the witnesses no chance to correct their error upon later seeing the “correct” face. (See Penrod, supra.) Variations on the sequential method in which witnesses are permitted to view more faces after identifying someone still do not cure the problem because, once an initial identification commitment has been made, the witnesses are less likely to choose someone else or to do so on a comparatively “clean slate.”
On the other hand, even these critics of the research concerning sequential methods generally recognize that there is correspondingly little, if any, empirical basis for favoring the status quo—in which only simultaneous methods are used—over the newer sequential approaches. The Ad Hoc Innocence Committee likewise concluded that, given the current state of the science, there is an insufficient basis for choosing either sequential or simultaneous methods as the superior ones. More research is needed.
Accordingly, the committee chose, and the Criminal Justice Section Council and ultimately the House of Delegates agreed upon, an approach now being tried in homicide cases in Illinois. (See Edwin Colfax, Status of Action on Recommendations of the Illinois Governor’s Commission on Capital Punishment, available at www.northwestern.edu/depts./clinics/wrongful/documents/GCEstatus.htm). Under this approach, police departments and prosecutors are urged to participate in properly designed field experiments in which one group of police districts in a city or county uses simultaneous methods and another group uses sequential ones. Furthermore, as data grow police and prosecutors are counseled carefully to consider the wisdom of one approach over another in particular circumstances. Additionally, the ABA policy seeks to minimize suggestion by counseling the selection of lineup or photo spread participants to match the witness’s description of the perpetrator rather than on other grounds and without the suspect’s standing out from the foils in any salient way. It is the Innocence Committee’s hope that the combination of these reforms and further ones mentioned below will also reduce error from the cross-racial bias effect.
In case error does occur, the ABA policy encourages, whenever practicable, police to videotape or digitally video record lineup procedures, including the witness’s confidence statements and any statements made to the witness by the police. Videotaping enables the accurate recreation of the circumstances facing the witness at the lineup. Videotaping witness confidence statements at the time of the lineup or photo spread discourages upward confidence drift over time, or at least enables defense counsel to counter a witness’s sincere insistence at trial of perfect confidence in his or her earlier identification of the defendant. (See Wells et al., supra, at 670.) For similar reasons, police are urged to obtain confidence statements from witnesses at the time that they make the identification. (See Penrod, supra, at 46.) Police and prosecutors are further urged to avoid witness feedback at any time on whether he or she selected the “right man”—the person believed by law enforcement to be the culprit. (See id. at 46; CUTLER, supra, at 24-25; Steven D. Smith et al., Postdictors of Eyewitness Errors: Can False Identifications Be Diagnosed in the Cross-Race Situation?, 7 PSYCH., PUB. POL’Y, & L. 153, 165 (2001).)
To better educate the jury about whether science and common sense diverge, the ABA policy urges that, where appropriate in an individual case, courts should have the discretion to allow a properly qualified expert to testify both pretrial and at trial on the factors affecting eyewitness identification accuracy. (See CUTLER supra, at 129-30; Wells et al., supra at 354; Jennifer Devenport, Brian Cutler, Veronica Stinson, and David Katz, How Effective Are Cross-Examination and Expert Testimony Safeguards? Jurors’ Perceptions of the Suggestiveness and Fairness of Biased Lineup Procedures, 87 J. APPLIED PSYCH. 1042 (2002).) For similar reasons, the ABA policy also encourages the judiciary to consider the wisdom of instructing the jury on the teachings of social science concerning eyewitness and photo spread accuracy in an appropriate case. (See, e.g., Christian A. Meissner and John Brigham, Thirty Years of Investigating Own-Race Bias in Memory for Faces, 7 PSYCH., PUB. POL’Y, & L. 3, 25 (2001); CUTLER, supra, at 159-63).)
To address the problem of false confessions, the ABA House of Delegates adopted a policy statement urging all law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to audiotape the entirety of such custodial interrogations. The policy further urges legislatures, courts, or both, to enact laws or rules of procedure requiring such videotaping or audiotaping, provide the necessary funding, and provide appropriate remedies for noncompliance. The resolution on videotaping interrogations was cosponsored by the New York County Bar Association, which played a major role in crafting the final language of the resolution and the supporting report.
Scope and causes of false confessions
The academic literature is replete with instances in which innocent persons have confessed to crimes that they did not commit. (See Report of the [Illinois] Governor’s Commission on Capital Punishment, Recommendation 16 (April 2002).) Those confessions routinely result in convictions because of the dramatic impact at trial of a suspect who seemingly openly admits his or her guilt to the police. Indeed, one research team concluded that “placing a confession before a jury is tantamount to an instruction to convict. . . .” (Richard Ofshe and Richard Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENVER U. L. REV. 979, 1118 (1997).) Estimates of the extent to which false confessions contribute to wrongful convictions vary, with some estimates attributing close to one-fourth of all convictions of the innocent partly to false confessions. (See Huff, supra, at 15.) These false confessions take place despite the giving of Miranda warnings and despite the modern decline of extreme tactics like those of the “third degree.”
False confessions occur even in the absence of police use of psychological trickery or high-pressure tactics because isolated suspects facing lengthy interrogations often feel compelled to confess. Indeed, such compulsion has been documented in far less frightening circumstances than interrogation by police in a criminal case. Law professor Cass R. Sunstein explains:
An understanding of compliance [psychology] suggests that the risk of false confessions is quite serious.
* * *
An illuminating experiment establishes the point. Subjects were told to do some work on a computer; they were also told not to press the “Alt” key, because if they did so the computer would crash. No subject pressed that key. But at a certain moment, the computer crashed anyway, and subjects were accused by the experimenter of having pressed the “Alt” key. Subjects were then asked to confess to the mistake, with the punishment being a call from the experiment’s principal experimenter. Nearly 70 percent of subjects falsely confessed! When confronted with made-up evidence—a false witness claiming to have seen the subject press the key—over 90 percent of subjects confessed.
(Cass R. Sunstein, WHY SOCIETIES NEED DISSENT 37-38 (2003).)
In a real-life criminal case, of course, the consequences of confession are far greater, and “supportive subcommunities—family members, friends, even lawyers—often provide protection against false confessions.” (Id. at 38.) Indeed, the experimental research demonstrates that such support can be a powerful counterforce to the compulsion of authority figures such as the police. (See id. at 37-38.) Nevertheless, interrogations often take place with suspects isolated from both lawyers and intimates. There is good reason to believe that significant numbers of ordinary people under such circumstances “can be led to agree that they have engaged in misconduct, even serious misconduct, when they are entirely innocent.” (Id. at 38.)
Empirical studies of false confessions in serious cases are consistent with this conclusion. (See generally Ofshe and Leo, supra; Welsh White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. CIVIL RTS.–CIVIL LIBERTIES L. REV. 105 (1997); WELSH WHITE, MIRANDA’S WANING PROTECTIONS: POLICE INTERROGATION PRACTICES AFTER DICKERSON 196-215 (2001).) Those studies reveal that the risk of the innocent confessing is highest for those most vulnerable to suggestion or where deceptive or manipulative interrogation techniques are used. For example, confessions by the mentally handicapped or by juveniles, and those stemming from lengthy interrogations, threats of punishment or promises of leniency, threats of adverse consequences to a friend or loved one, or from police misrepresentation about the nature and quantity of the evidence of the suspect’s criminal involvement, all raise significant risks of false acknowledgments of guilt. (See WHITE, supra, at 196-215.)
Miranda v. Arizona acknowledges the risk of compelled confessions in “custodial interrogations”—those of a suspect held “incommunicado” in a “police-dominated atmosphere.” (384 U.S. 436 (1966).) Accordingly, Miranda creates a right to counsel during such interrogations and mandates that police warn suspects of their rights to counsel and to silence. Suspects routinely waive those rights, however, with a significant body of empirical research demonstrating that police have developed a wide range of effective tactics for encouraging Miranda waivers. (See WHITE, supra, at 76-101).) In one commentator’s words, Miranda warnings have become weak rote recitations, “mere piece[s] of station house furniture.” (LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY (1998) (quoting DAVID SIMON, A YEAR ON THE STREETS (1983).)
Nor do the Fifth and Fourteenth Amendment Due Process Clauses, prohibiting admission at trial of “involuntary” confessions obtained by the police, currently offer much protection. Those clauses, as recently understood by most courts, set a low standard of voluntariness turning on a case-by-case weighing of a wide range of circumstances concerning what tactics the police use and how able the individual suspect was to resist those tactics. (See ANDREW E. TASLIT & MARGARET L. PARIS, CONSTITUTIONAL CRIMINAL PROCEDURE 590-612 (2d ed. 2003).) Moreover, a finding of valid waiver of Miranda rights generally automatically renders the confession voluntary in the eyes of most judges. (See id. at 645.)
Videotaping as a solution: Benefits
Videotaping the entire interrogation process has proven to be an invaluable technique for both minimizing the tactics that lead to false confessions and maximizing the likelihood of catching the false ones that nevertheless do occur. (See Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogation, Northwestern School of Law, Center for Wrongful Convictions, 6, 24-26 (2004), available at www.law.northwestern.edu/depts/clinic/wrongful/documents/Sullivan Report.pdf.) Videotaping helps suppression judges to resolve credibility disputes about what happened during an interrogation, easing the task of choosing between conflicting police and defense versions of the events. (See id. at 6, 24-26.) Videotaping allows the suppression judge to hear the interrogating officers’ tone of voice, see the suspect’s face during questioning, or feel the sense of sustained pressure from hour-upon-hour of incommunicado interrogation. (See id. at 6, 24-26.) Videotaping also offers a number of collateral benefits:
Videotaping police interrogation of suspects protects against the admission of false confessions for at least four reasons. First, it provides the means by which courts can monitor interrogation practices and thereby enforce the other safeguards [such as the proper provision of Miranda warnings]. Second, it deters the police from employing interrogation methods likely to lead to untrustworthy confessions. Third, it enables courts to make more informed judgments about whether interrogation practices were likely to lead to an untrustworthy confession. Finally, mandating this safeguard device accords with sound public policy because the safeguard will have additional salutary effects besides reducing untrustworthy confessions, including more net benefits for law enforcement.
(WHITE, supra, at 153-54.)
The “net benefits for law enforcement” are many. Video recording encourages police to continue investigating until they find the true perpetrator, thus enhancing public safety. Videos can also be used to improve the training of officers in proper interrogation techniques, further reducing the risks of error. (See Sullivan, supra, at 18.) By drastically lessening credibility disputes, videotaping can reduce, and experience shows that it indeed has dramatically reduced, the number of defense motions to suppress statements. (See id. at 8.) “Officers are spared from defending themselves against allegations of coercion, trickery, and perjury during hostile cross-examinations.” (Id. at 8.) Increasing numbers of defendants, at least those who previously might have pinned their hopes on frivolous suppression motions, are now likely to plead guilty, saving trial costs. (See id. at 12, 23-24.) These benefits come to pass, however, only if all interrogation efforts in a case are taped, not merely the
ultimate confession, as the New York Times recently explained: “By the time five teenage suspects gave the videotaped confessions that helped convict them in the 1989 rape of the Central Park jogger, they had been through hours of unrecorded interrogation. . . . [T]he exoneration of the young men begs for reforming the way suspects are led to rehearsed statements of guilt.” (Editorial, False Confessions and Videotape, N.Y. TIMES, Jan. 30, 2003, at A24; see also Sullivan, supra, at 17-19).)
Many of the confessions later proven false were taped and played as compelling evidence to a jury. (See id. at A24; STANLEY COHEN, THE WRONG MEN 255-67 (2003).) As the jogger case and other reversals demonstrate, innocent people can be led into confessions. Their questioners—wittingly or not—also often provide them with details that would otherwise seem to be known only to the real criminal. (See Editorial, False Confessions and Videotape, supra; COHEN, supra, 255-67.) Recording the full interrogation process—and not merely the confession itself—is therefore necessary to achieving the systemic benefits of videotaping.
Nonfinancial costs of videotaping
Critics of videotaping worry about its expense, both its out-of-pocket costs, such as purchasing and storing videotape, and its costs in terms of officer time and energy. Large police departments complain that “[t]he logistics of it are mind-boggling. . . .” (See Shaila K. Dewan, New York Police Resist Videotaping Interrogations, N.Y. TIMES, Sept. 2, 2003, at B1, quoting police Commissioner Kelly.) Smaller departments worry that they will be particularly stressed because of their minimal manpower and funding. (See id.) Officers worry that videotaping is sometimes infeasible, such as where information is immediately needed from a suspect to prevent future harm or where a location set up for videotaping cannot easily be reached. (See id.; Sullivan, supra, at 19-26.) Commentators worry as well that juries will be offended by perfectly legitimate questioning techniques, that the time involved in lawyers and judges reviewing hours of videotape is unduly onerous, and that a suppression remedy may mean the loss of too many valid confessions where there is a purely technical error, such as a small portion of the entire interrogation process accidentally escaping taping. (See Dewan, supra; Sullivan, supra, at 19-26.)
These concerns have not been borne out in practice. A 1993 study published under the auspices of the United States Department of Justice found that videotaping was used to some extent by one-third of all police departments in jurisdictions with over 50,000 residents. (Geller, Videotaping Interrogations and Confessions, DOJ HV 7 635. US 48 G 318 (1993).) Those jurisdictions that videotaped “overwhelmingly found that videotaping improved the quality of police interrogations—nearly 50% reported that it helped a lot and over 35% that it helped somewhat,” leading to better-prepared detectives, better monitoring by supervisors, better training of interrogators, fewer defense allegations of coercion or intimidation, and wider “use of taped confessions to elicit a confession from suspected accomplices.” (Report on the Electronic Recording of Police Interrogations Submitted Jointly by the American Bar Association Criminal Justice Section and the New York County Lawyers’ Association 7-8 (2004).) Prosecutors were similarly “in virtually unanimous agreement” that videotaping improved their trial preparation and strengthened their ability to convict the guilty while helping to protect suspects’ rights. (Id. at 8.)
A 2004 study, participated in by more than 200 law enforcement agencies in 38 states that record full interrogations (mostly only in serious felony cases), found that, even when the fact of recording is known to the suspect, “officers are not impeded from obtaining confessions and admissions from guilty suspects.” (Sullivan, supra, 4-6, 10.) The number of frivolous defense motions dramatically declined, the report continued. Most costs were involved at startup, but diminished “once the equipment and facilities . . . [were] in place and training ha[d] been given to detectives.” (Id. at 23-24.) Yet, “savings [will] continue so long as electronic recording continues.” (Id. at 24.) In Minnesota, where an audio- or videotaping mandate was imposed by judicial decision, Amy Klobuchar, the lead prosecutor of Hennepin County, explained: “There was concern that it would wreak havoc on the interrogation process, and it turns out that the opposite is true.” (Dewar, supra.) Klobuchar continued: “Cops and prosecutors have found it to be very useful in obtaining convictions and warding off claims of police brutality.” (Id.) She also found no negative impact on jury attitudes toward police tactics: “Our lawyers have them explain what the rules are, and the juries understand. We think it’s helped to build up the credibility of the police.” (Id.)
Likewise, the Sheriff of Kankakee County, Illinois, in testimony before an Illinois House task force, explained, “The biggest apprehension was that we would lose a lot of confessions. . . . [W]e’ve never lost a motion to suppress since we’ve started video interviewing. So it’s an excellent tool. I encourage you to use it.” (Sullivan, supra, at 33.) Jim Ryan, while serving as Illinois Attorney General, wrote:
Police agencies that are already using videotape in Illinois report almost uniformly agreeable results, finding that videotaping provides the most accurate method of proving what was said, defeats claims of coercion or confusion and increases professionalism by allowing peer review of, and training in, methods of questioning after interviews are completed. Videotaping also clearly protects the rights of suspects as well.
(Id. at 31-32.)
Governor Ryan’s Capital Punishment Commission Report recommended videotaping in homicide cases, and the Illinois legislature recently passed a statute requiring such videotaping. (Ryan Commission Report, supra, at 27.)
Other police departments that have embraced video, or at least audio, recording of interrogations include departments in Denver, Boulder, Colorado Springs, and Ft. Collins, Colorado; San Diego County, California; many Connecticut police departments; Broward County and Floral Springs, Florida; Prince George’s County, Maryland; Las Cruces, New Mexico; Aberdeen Sheriff, South Dakota; and Austin, Texas. (See Sullivan, supra, at 31-32.) Other nations, including Great Britain, Australia, and Tasmania, have reported positive experiences with recording. (See Report on Electronic Recording of Police Interrogations, supra, at 12-13.) Hong Kong is moving toward such recording and in a number of instances a variety of United Nations committees and rapporteurs, as well as the European Committee for the Prevention of Torture, have expressed strong support for the trend toward recording for reasons similar to those noted by its advocates in the United States. (See id. at 13-15.)
Financial costs of videotaping
The out-of-pocket costs of video recording are often far less, however, than the financial costs of not recording, including lengthy suppression motions, large damage judgments by the wrongly convicted, expensive investigations into alleged police abuses, and retrying cases where there is other credible evidence of guilt but the confession is seriously tainted. State and federal funding efforts can help to reduce the burden on both large and small departments. The declining cost of digital video recording methods, which store images on a computer, can also eliminate the expense of storing videotapes. (Cf. Digital Video Frees Filmmakers, BBC NEWS, UK EDITION, www.gatewaybiz.com/index.asp, last updated February 2, 2004, 8:20 p.m., noting that the dramatically lower cost of even high-quality digital video cameras compared to traditional film cameras allows the creation of award-winning films on tight budgets; see generally Sullivan, supra, at 23-26 (on relative costs and benefits of videotaping the entire custodial interrogation process).)
Remedies for the failure to videotape
What should be the remedy for partial or total failure to comply with the videotape mandate? The Illinois statute provides no remedy if, under the particular case circumstances, certain excusing conditions are present, such as electronic recording being infeasible. (See 20 ILL. CONSOL. ST. § 3920/7.2(d).) Absent such conditions, any confession is presumed inadmissible against the accused, though that presumption may be overcome by a preponderance of evidence showing that the statement was voluntarily given and is reliable based upon the totality of the circumstances. (See id. § 5/103-2.1(e)-(f).) The American Law Institute recommends suppression only for “substantial” violations, such as those that are “gross, willful, and prejudicial to the accused,” or likely to lead to a misunderstanding of his or her rights and influence the accused’s decision to make a statement, or creating a significant risk that the statement is false, or those found to be substantial based upon a weighing of all the circumstances, including the likely deterrent effect of suppression, the degree of willfulness, and the availability of effective administrative alternatives. (See AMERICAN LAW INSTITUTE, MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE §§ 130.3(3)(6), 150.3(2), (3), (b), (5).) At least one commentator has suggested that videotaping may be constitutionally required, which should, therefore, logically entail a constitutionally based suppression remedy, including all the recognized exceptions to the mandate of such a remedy. (See Christopher Slobogin, Toward Taping, 1 OHIO ST. J. CRIM. L. 309 (2003).)
At least one court has, however, declined to require suppression routinely because it was “hesitant to formulate a rigid rule of exclusion, and all its corollary exceptions and modifications.” (Commmenweath v. DiGiambattista, SJC-09155, Slip Op. at 10 (Mass. Supreme Judicial Court, Aug. 16, 2004).) Instead, that court held that defendants are, upon request, entitled to a jury instruction to evaluate an alleged confession with caution where it was not recorded at the place of detention. Moreover, where the voluntariness of the confession is an issue at trial, the “jury should be advised that the absence of a recording permits (but does not compel) [the inference] that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.” (Id.) Internal police administrative remedies are, of course, another option.
The ABA policy takes no position on what remedies should be available under what circumstances where the police fail to comply with recording mandates. Each jurisdiction might choose to make very different choices. The only position that the ABA policy does take is to urge that some choice be made, some remedy provided, or recording rules will become empty rhetoric rather than a small, but significant, guideline to a better way.
Forensic laboratories: Scope of the problem
In one-third of the cases proven to be wrongful convictions by the Cardozo Law School’s Innocence Project, tainted or fraudulent science contributed to the flawed verdicts. (BARRY SCHECK, ET AL., ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CONVICTED 246 (2000).) Increasing numbers of criminal cases turn significantly on forensic science, from handwriting identification, to ballistics analysis, to fingerprinting, to DNA matching. Yet in many ways the data supporting the validity of these techniques, the safeguards against fraud or mistake, the training and supervision of the relevant personnel, and the existence and enforcement of sound, standardized procedures are shockingly deficient. (See COHEN, supra, at 220; Paul Giannelli and Emmie West, Forensic Science: Hair Comparison Evidence, 37 CRIM. L. BULL. 514 (2001) (documenting cases); Edward Imwinkelried, Flawed Expert Testimony: Striking the Right Balance in Admissibility Standards, 18:1 CRIM. JUST. 29 (Spring 2003).)
Much attention in the press has been lavished upon DNA profiling. The rise of this technique has indeed revolutionized forensic science because of the reforms in the area that were prompted by early weaknesses in the ways in which such profiling was done. “The initial outcry over DNA typing standards concerned laboratory problems: poorly defined rules for declaring a match; experiments without controls; contaminated probes and samples; and sloppy interpretation of audiograms.” (Eric S. Lander and Bruce Budowie, DNA Fingerprinting Dispute Laid to Rest, 371 NATURE 735, 735 (Oct. 27, 1994).) When even the FBI’s top scientist acknowledged the problem, and the National Academy of Sciences added its criticism in two major reports—including harsh words for the too-frequent absence of examiner proficiency testing via blind trials—extensive standards were developed and implemented. (See generally NATIONAL RESEARCH COUNCIL, DNA TECHNOLOGY IN FORENSIC SCIENCE 55 (1992); Michael J. Saks and Jonathan J. Koehler, What DNA “Fingerprinting” Can Teach the Law About the Rest of Forensic Science, 13 CARDOZO L. REV. 361, 372 (1991).) DNA profiling increasingly became the “gold standard” against which other forensic techniques should be measured. Only 5 percent of forensic lab work involves DNA profiling, yet turning the 95 percent of forensic leads into DNA-like gold has proceeded haltingly. (See ABA Report on Forensic Sciences 2 (2004).)
Daubert’s merely tentative first steps
Some prodding for change has come from the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., requiring that all scientific evidence admitted at trial in federal court first be shown to be both “relevant and reliable.” (509 U.S. 579 (1993).) The pressure generated by Daubert and its progeny led to revised Federal Rule of Evidence 702, requiring that expert testimony (1) be “based upon sufficient facts or data,” (2) be “the product of reliable principles and methods,” and (3) be reliably applied “to the facts of the case.” (FED. R. EVID. 702.) Numerous state courts have adopted Daubert’s approach, while other states have re-invigorated the earlier Frye standard requiring simple general acceptance of the principles and techniques in the relevant scientific field. (See 1 PAUL GIANNELLI and EDWARD IMWINKELRIED, SCIENTIFIC EVIDENCE 51-13 to 1-15 (3d ed. 1999).) Nevertheless, various studies show that Daubert is applied far more stringently in civil cases than in criminal ones, and, even in criminal ones, Daubert serves a more effective screening role for filtering out flawed defense expert testimony than weak prosecution and police-generated forensic science. (Myrna Raeder, Cost-Benefit Analysis, Unintended Consequences, and Evidentiary Policy: A Critique and a Rethinking of the Application of a Single Set of Evidence Rules to Civil and Criminal Cases, 19 CARDOZO L. REV. 1585, 1602 (1998) (new science is typically admitted against criminal defendants while “junk science” is vigilantly scrutinized in civil cases); Jennifer L. Groscup, et al., The Effects of Daubert on the Admissibility of Expert Testimony in State and Federal Criminal Cases, 8 PYCHOL., PUB. POL’Y & L. 339, 346-47 (2002) (empirical study concludes that at both the trial and appellate levels, “experts proffered by the prosecution were more likely to be admitted than experts proffered by defendants.”).) Truly effective Rule 702 admissibility hearings can also be time-consuming and require extensive discovery. Inconsistent rulings by courts in differing jurisdictions blunt the incentives for improvement, and change comes slowly, especially in times of governmental budgetary crunches and competing societal needs. Moreover, Daubert-like hearings seek to identify problems after they arise rather than preventing problems in the first place, and Daubert does little about the problem of forensic fraud.
Forensic fraud is no minor or occasional problem. The most prominent illustration is that of analyst Fred Zain at a West Virginia crime laboratory, whose wrongdoing was described in a judicial report thus:
The acts of misconduct on the part of Zain included (1) overstating the strength of results; (2) overstating the frequency of genetic matches on multiple pieces of evidence; (3) misreporting the frequency of genetic matches on multiple pieces of evidence; (4) reporting that multiple items had been tested, when only a single item had been tested; (5) reporting inconclusive results as conclusive; (6) repeatedly altering laboratory records; (7) grouping results to create the erroneous impression that genetic markers had been obtained from all samples tested; (8) failing to report conflicting results; (9) failing to conduct or to report conducting additional testing to resolve conflicting results; (10) implying a match with a suspect when testing supported only a match with the victim; and (11) reporting scientifically impossible or improbable results.
(In re Investigation of the W. Va. State Police Crime Lab, Serology Div., 438 S.E.2d 501, 503 (W. Va. 1993).)
Zain’s misconduct is not an isolated case. Similar fraud has been discovered in Oklahoma City, (id. at 503), Texas, Montana, Florida, and Colorado, potentially affecting the validity of thousands of criminal convictions and raising concerns about more problems yet to be discovered. (See, e.g., Blumenthal, supra, at A12 (2004 discovery of lab fraud in Houston, Texas); George Castelle, Lab Fraud: Lessons Learned, THE CHAMPION 13-14 (May 1999) (Montana, Florida, and Colorado); Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 VA. J. SOC. POL’Y & L. 439 (1997) (similar).) The FBI itself came under scrutiny, with a report by an inspector general (IG) on the FBI laboratory recommending, among other things, that the lab seek accreditation by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLAD); that written protocols be developed for scientific procedures; and that examiners in particular areas have appropriate backgrounds and training in those areas. (U.S. DEPARTMENT OF JUSTICE, OFFICE OF INSPECTOR GENERAL, THE FBI LABORATORY: AN INVESTIGATION INTO LABORATORY PRACTICES AND ALLEGED MISCONDUCT IN EXPLOSIVES-RELATED AND OTHER CASES (April 1997).)
Solving the problem by accreditation
The ABA’s policy on forensic sciences recommends solutions to these internal laboratory problems similar to those solutions discussed in the IG’s report on the FBI lab. In particular, the ABA recommends that “Crime laboratories and medical examiner offices should be accredited, examiners should be certified, and procedures should be standardized and published to ensure the validity, reliability, and timely analysis of forensic evidence.” (ABA Resolution on Forensic Evidence.) Few jurisdictions require forensic laboratories to be accredited, though those that do often include a requirement of examiner proficiency testing. (See, e.g., Jack B. Weinstein, Science and the Challenge of Expert Testimony in the Courtroom, 77 OR. L. REV. 1005, 1011 (1998).) Although ASCLAD has accredited over 240 laboratories in voluntary programs, large numbers of forensics labs remain unaccredited. (See Graham Jones, President’s Editorial—The Changing Practice of Forensic Science, 47 J. FORENSIC SCI. 437, 438 (2002).) The National Association of Medical Examiners similarly operates a voluntary program, resulting in accreditation of only enough medical examiners to cover 25 percent of the U.S. population. (See id.) Accreditation programs approve the proper operation of labs, while forensic certification boards certify the qualifications of individual examiners in particular fields. Yet certification programs are also generally voluntary, with large numbers of examiners uncertified. (See Mark Hansen, Expertise to Go, 86 A.B.A. J. 44, 45 (Feb. 2000); Elizabeth MacDonald, The Making of an Expert Witness: It’s in the Credentials, WALL ST. J., FEB. 8, 1999 at B1.) Moreover, current certification programs too often lack stringent requirements. Although the ABA’s policy does not detail the specific nature of certification requirements, the supporting report notes that, “One would expect, however, that demanding written examinations, proficiency testing, continuing education, recertification procedures, an ethical code, and effective disciplinary procedures would be part of such a program.” (Report, ABA Resolution Forensic Sciences, 7.)
Accreditation standards similarly are likely to require “stringent quality assurance/quality control procedures” for each lab and to encourage them to “conduct proficiency testing using blind tests prepared internally or externally and submitted as normal casework evidence or by re-examination by another examiner on completed casework.” (Id. at 6-7.) Likewise, as is true of ASCLAD accredited labs, the expectation is that all labs accredited pursuant to the ABA policy will maintain written copies of appropriate technical procedures and protocols, including “descriptions of sample preparation methods, controls, standards, and calibration procedures, as well as a discussion of precautions, sources of possible error, and literature reference.” (ABA Innocence Forensics Report.) None of these improvements can be meaningful, however, if forensics units are deprived of the resources needed for doing things right. Accordingly, the ABA policy further recommends that “[c]rime laboratories and medical examiner offices should be adequately funded.” (ABA Resolution on Forensic Evidence.)
Internal lab operations are, however, only half of the problem. Defense lawyers who lack the resources to secure adequate expert advice and testimony may be unable to expose and challenge weaknesses in prosecution forensics evidence or to mount an affirmative defense in a forensics case, something that can be especially important where the critical question—“Who did this crime?”—is at issue. The commentary to the relevant ABA Standards thus notes that “The quality of representation at trial . . . may be excellent and yet unhelpful to the defendant if the defense requires the assistance of a psychiatrist or handwriting expert and no such services are available.” (Commentary, ABA STANDARDS FOR CRIMINAL JUSTICE PROVIDING DEFENSE SERVICES 5-14, at 22 (3d ed. 1992).) Those standards thus require adequate access to experts for both the defense and the prosecution. Moreover, in Ake v. Oklahoma, the Supreme Court found a due process right to the appointment of a defense expert in an indigent’s criminal proceeding to enable the accused to be provided with the “basic tools of an adequate defense.” (470 U.S. 68 (1985).) Nevertheless, even in capital murder cases, “Judges routinely deny lawyers’ requests for expert/investigative fees.” (See Marcia Coyle et al., Fatal Defense: Trial and Error in the Nation’s Death Belt, NAT’L L. J. June 11, 1990, at 30).) A 1992 study of indigent defense by the National Center for State Courts similarly found that ‘the greatest disparities occur in the areas of investigators and expert witnesses, with the prosecutors possessing more resources.” (ROGER HANSON, INDIGENT DEFENDERS: GET THE JOB DONE AND DONE WELL 100 (2992).) A Texas State Bar study also concluded: “There is a serious under-funding of essential expert services and other expenses in capital trials and appeals.” (See A Study of Representation in Capital Cases in Texas, 56 TEX. B.J. 333, 408 (April 1993).) Consequently, the ABA policy recommends requiring the appointment of defense experts for indigent defendants “whenever reasonably necessary to the defense.” (ABA Resolution on Forensic Evidence.)
A lawyer cannot fully appreciate, however, when he or she needs an expert or what the expert has to say, nor can the lawyer properly cross-examine opposing experts or prepare for trial, if the lawyer lacks even the most elementary knowledge of how forensic sciences work. Yet few law schools provide any serious training in the forensic sciences, and the casebooks are filled with instances of lawyers failing to spot the simplest and most obvious exculpating evidence in forensic reports. (See, e.g., Baylor v. Estelle, 94 F.3d 1321, 1324 (9th Cir. 1996); Troedel v. Wainwright, 667 F. Supp. 1456, 1461 (S.D. Fla. 1986).) Accordingly, to protect the right to the effective assistance of counsel, avoid unnecessary appeals, and minimize wrongful convictions stemming from deficient lawyering, the ABA policy recommends that training in forensic science be made available to all attorneys at minimal cost and that counsel “have competence in the relevant area or consult with those who do where forensic evidence is essential in a case.” (ABA Resolution on Forensic Science.)
Police and prosecutors
Police investigating crime and prosecutors evaluating those investigations, of course, play important roles in ensuring that evidence that may acquit the innocent and convict the guilty is properly obtained, preserved, and used. Even inadvertent tainting of physical evidence or witness testimony can lead, and has led, to wrongful convictions. ABA policy therefore urges federal, state, local, and territorial governments to “[e]stablish and enforce written procedures and policies governing the collection and preservation of evidence and other aspects of the conduct of criminal investigations.” Those procedures should be “regularly updated based on new and improved techniques and methods” and “should include instruction in any applicable legal requirements, particularly those designed to promote accuracy in criminal cases, such as the duty to preserve evidence and disclose exculpatory evidence under Brady v. Maryland or other provisions of federal or state law.” (ABA Resolution on Law Enforcement.)
Policies concerning the gathering and preservation of physical evidence and witness and suspect statements are useless, however, if law enforcement personnel are not adequately trained in those policies and how they serve to avoid convicting the innocent or missing the guilty. ABA policy therefore urges adequate training and disciplinary procedures “to assure that investigative personnel are prepared and accountable for their performance.” (Id.) Because so much of the work of law enforcement personnel is relatively independent, done outside the view of their supervisors and commanders, serious accountability procedures must include an “adequate opportunity for citizens and investigative personnel to report misconduct in investigations,” as the ABA recommends. (Id.) Finally, as with reforming forensics laboratories, improved training and accountability procedures for police personnel and for the accurate collection and preservation of evidence can be made real only by adequate funding for change.
Prosecutors similarly cannot do more in their offices to promote conviction and appropriate punishment of the guilty or freeing of the innocent without adequate funding. Many prosecutors’ offices require their attorneys to handle enormous workloads that make it a daily struggle for them to provide competent representation to the people. This daily struggle to handle each day’s crises makes it hard as well for prosecutors to ensure that “law enforcement agencies, laboratories and other experts understand their obligations to inform prosecutors about exculpatory or mitigating evidence.” (Report on ABA Resolution on Law Enforcement.) Additionally, limited resources may mean that some cases make their way to trial without adequate critical examination of the quality of the evidence, especially of eyewitness testimony, confessions, or testimony from witnesses that receive a benefit. Furthermore, in some instances prosecutors’ offices have opposed defense efforts to preserve potentially exculpatory evidence for a long enough time to permit exhaustion of postconviction review. (Id.) Accordingly, the ABA’s policy recommends changes in all these areas, with adequate funding for prosecutors’ offices; reasonable workloads; outreach requirements to inform law enforcement of its obligation to keep prosecutors adequately informed; the creation of sound procedures for evaluating cases relying upon eyewitnesses, confessions, and certain informants; and the drafting of legislation mandating preservation of material evidence for “a reasonable period of time after criminal appeals are exhausted to permit post-conviction review.” (ABA Resolution on Law Enforcement.)
Still to come
These new ABA policies in the areas of eyewitness testimony, confessions, forensic laboratories, and law enforcement and prosecutorial policies are important steps in addressing the problem of wrongful convictions. But they will be faltering steps if they ultimately sit on the shelf gathering dust. The ABA Criminal Justice Section’s Council and its leadership, and the media and education arm of the ABA and of the Section’s Ad Hoc Committee on Innocence and the Integrity of the Criminal Justice System are, therefore, planning outreach efforts over the next few years to encourage localities to turn these policies into practices. But these steps are also only first steps. The Council is considering additional proposals being generated by the Ad Hoc Innocence Committee in the areas of effective assistance of counsel, informants, compensation of the wrongfully convicted, and new systemic review mechanisms to identify and correct sources of error. It is hoped that any additional proposals approved by the Council will also find their way to approval by the House of Delegates, further demonstrating the ABA’s continuing commitment to further fostering a criminal “justice” system worthy of the name.
Innocence Committee Reports and Members
The committee had 12 members who served on 10 subcommittees as liaisons to other Section committees. They include: Prof. Myrna Raeder, cochair, (firstname.lastname@example.org); Prof. Paul Giannelli, cochair (email@example.com); Dino Amoroso, liaison, Prosecution Function Committee (firstname.lastname@example.org); Hon. Arthur Burnett, Sr., liaison, Rules of Criminal Procedure and Evidence Committee (email@example.com); Prof. Gabriel (Jack) Chin (firstname.lastname@example.org) (email@example.com); Barry Fisher (firstname.lastname@example.org); James J. Fyfe (email@example.com); Cynthia Hujar Orr, liaison, Defense Function/Services Committee (firstname.lastname@example.org); David Simon (email@example.com); Hon. Andrew Sonner, liaison, Criminal Justice Standards Committee (firstname.lastname@example.org
.md.us); Prof. Victor Streib, liaison, Juvenile Justice Committee (email@example.com); and Prof. Andrew Taslitz, liaison, Race and Racism Committee (firstname.lastname@example.org).
The subcommittees and their members include:
1. Scientific Evidence (Paul Giannelli, Barry Fisher, and Ken Melson)
2. Compensation for Innocents (Myrna Raeder, Dino Amoroso)
3. False Confessions (Victor Streib, James Fyfe)
4. Eyewitness Testimony (Andrew Taslitz, Dino Amoroso, Gabriel Chin)
5. Ineffective Defense Counsel (Victor Streib, Cynthia Orr)
6. Improved Law Enforcement Training and Management (Gabriel Chin, James Fyfe)
7. Best Prosecutor Practices (Dino Amoroso, David Simon, Ken Melson)
8. Informants (Paul Giannelli, Judge Arthur Burnett, Sr.)
9. Systemic Remedy Issues (Myrna Raeder, Judge Andrew Sonner)
10. Media & Education (Andrew Taslitz)
To view the committee’s reports as approved by the ABA House of Delegates, go to the Section Web site at www.abanet.org/crimjust/home.html.