By Maggie Clark
When the Georgia Board of Pardons and Paroles denied clemency for Troy Allen Davis Tuesday, the board based its decision on one of the bedrocks of the American judicial system: eyewitness testimony. Nine individuals testified that they saw Davis murder off-duty police officer Mark Allen MacPhail in a Burger King parking lot in 1989, and the jury sentenced him to death. He was executed by lethal injection last week around 11 p.m. But over the years, seven witnesses recanted their testimony; some alleged that police coerced them to identify Davis. Three jurors who sentenced Davis to the death penalty testified that had they known about the problems with eyewitness identification, they would not have sentenced Davis to death.
For more than 30 years, research in criminal justice, social science and behavioral health has pointed overwhelmingly to the conclusion that people aren’t very good at picking criminals out of a police lineup. Whether due to faulty memories or subtle police coercion, eyewitnesses often misidentify the suspect. The first study questioning the validity of eyewitness testimony was published all the way back in 1907. Last week, yet another study was released, this one by the American Judicature Society. It found that showing eyewitnesses photos of suspects sequentially, rather than in a cluster, reduces the likelihood of misidentification.
Over the past decade, a dozen states and several large police departments have adopted evidence-based practices, such as having an officer who doesn’t know the suspect’s identity conduct a police lineup, or instructing witnesses that the suspect may or may not be present in the lineup. Still, the majority of states are generally using the same eyewitness identification rules that led to Davis’ controversial conviction.
Partially in response to the Davis case, Georgia is one of the states that have made some changes. The Georgia Peace Officer Standards and Training Council voted in 2008 to adopt evidence-based practices as part of its program for training officers.
Still, Stephanie Benfield, a state representative from Atlanta who worked on the new training program, thinks it’s inadequate. Because it is up to police departments to decide whether to use the training or not, Benfield says there’s no way to guarantee that a police lineup in Valdosta works the same way as one in Atlanta. “The smaller and more rural departments have argued that they don’t have the time or the money to institute the training,” Benfield says. “But the training is available on DVD. I find it hard to accept that they can’t watch the training or drive a few hours to get the training in person.”
Benfield, a Democrat, pushed a bill requiring all Georgia police officers to adhere to the same set of rules, but it failed in the legislature four years in a row. Her bill ran into the same resistance that has come up in California and Florida, where Republican lawmakers have sided with police groups who bristle at legislators dictating their procedures.
In some states, law enforcement has been out in front of the legislature. That was the case in Suffolk County, Massachusetts, and Santa Clara County, California, where police departments adopted new evidence-based procedures before the lawmakers could resolve their differences. Frank Rotondo, executive director of the Georgia Association of Chiefs of Police, says that while Georgia’s training changes aren’t mandatory, they have been embraced by the majority of departments. Police, Rotondo says, “just want to get a proper conviction.”
‘A huge issue’
Advocates for changing the rules think they’ve reached a critical turning point. Davis’ execution has brought a huge amount of publicity to the issue of eyewitness identification. So has the growing number of exonerations of inmates based on DNA evidence. Bills to change eyewitness identification rules are expected in a number of legislatures next year, and key court cases are due at both the state and federal levels. More and more police departments are also embracing the need to change.
“We expect that this will be a huge issue in 2012,” says Rebecca Brown, the senior policy advocate for state affairs at the Innocence Project, a nonprofit legal clinic that works to overturn wrongful convictions. “Our approach is this: We want uniform implementation of best practices, however that happens.”
The most recent evidence of that momentum came from New Jersey. Last month, after reviewing more than 2,000 studies and listening to days of expert testimony, the state Supreme Court decided that eyewitness identification is inherently flawed.
The court ruled that every trial judge must hold a pre-trial hearing to consider any factors that could undermine an eyewitness account, such as the time of day of the crime or whether or not the witness felt pressured by police to make an identification. Then, if the judge decides to admit the testimony, he or she must instruct the jury on the potential problems with eyewitness identification and tell jurors to treat the testimony the same way they would any other piece of evidence.
The Oregon Supreme Court is scheduled to hear a similar case challenging the validity of eyewitness testimony in November. The same month, the U.S. Supreme Court will consider reevaluating eyewitness identification in federal cases when it hears the case of Perry v. New Hampshire.
Since 1989, 273 people have been exonerated by post-conviction DNA testing. In about 75 percent of the exonerations, according to the Innocence Project, faulty eyewitness testimony was a determining piece of evidence that sent an innocent person to prison. Factors such as poor lighting at the crime scene, the emotional and mental state of a person who has witnessed a crime and racial bias all have been found to lead to incorrect identifications and potential wrongful convictions.
Another set of factors comes from how police lineups are conducted. Subtle affirmations from police, such as nods or telling a witness he or she did a good job, have been shown to coax people into making false identifications.
Researchers recommend that the officer administering the lineup be “blind,” or unaware of the identity of the suspect, so they cannot consciously or unconsciously influence the witness’ choice. Researchers also advise that police should take statements from witnesses immediately after they make their identifications, stating how confident they are in their choices. Studies have shown that simply telling witnesses that the suspect may or may not be in the lineup relieves the pressure to make an identification.
Police groups don’t dispute the research on eyewitness identification, but often chafe at the idea of state legislatures mandating police procedure. In Florida this year, law enforcement groups succeeded in quashing a House bill aimed at amending their lineup practices.
Amy Mercer, executive director of the Florida Chief of Police Association, says the legislation had a one-size-fits-all quality to it that would not work for smaller departments. In particular, blind administration of lineups would be almost impossible, she says. “When you have a seven-man police department and they’re not wanting anyone to know the identity, that’s not realistic,” Mercer says. “Everyone within your agency is going to have knowledge of the suspect.”
The same pushback occurred earlier this year in Massachusetts when police organizations objected to a bill that they said would mandate 150 steps an officer must take when conducting an eyewitness identification procedure. They would prefer that each department be allowed to write its own policy and have that approved by state officials. The bill is currently stalled in the Senate judiciary committee.
In Texas, a state with 44 post-conviction DNA exonerations, the most of any state according to the Texas Innocence Project, the legislative debate turned out differently. At the end of this year’s session, the legislature approved a bundle of bills aimed at remodeling the state’s criminal justice system. One of those bills, sponsored by state Senator Rodney Ellis, sets up a task force to write new procedures for conducting lineups and handling eyewitness identifications. The task force began work this month. “With the large number of exonerations in Texas,” says Ellis, a Democrat from Houston, “it’s hard for someone to argue that it’s not a problem.”
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Maggie Clark is a writer for Stateline.org. Contact her at [email protected]. Stateline.org granted permission to reprint this article.
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