Eyewitness Identification Comes to the Forefront

Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial

Matthew T. Mangino

Pennsylvania Law Weekly

September 20, 2011

Eyewitness testimony is often thought of as the best and most reliable evidence presented during a criminal trial. Thirty years ago, Supreme Court Justice William J. Brennan Jr. wrote: "There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, 'That's the one!'"

However, following the publication of hundreds of scholarly studies examining eyewitness identification this widely accepted form of evidence is being called into question.
According to Reason magazine, psychologists have long known about the fallibility of human memory. As far back as 1971, England's Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions.
This is not to suggest that eyewitness identification is completely unreliable. In fact, eyewitness testimony remains the most common form of evidence used to prosecute alleged offenders. However, concern has grown as it became clear that mistaken identifications have played a significant role in wrongful convictions.
In "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," University of Virginia School of Law professor Brandon L. Garrett wrote that 190 of the 250 convictions overturned by DNA evidence where the result of faulty eyewitness identifications.
The issue of eyewitness identification is in the spotlight as a result of a recent New Jersey Supreme Court decision and the U.S. Supreme Court decision to review eyewitness identification.
New Jersey's Supreme Court decided last week to overhaul the state's rules for how judges and jurors evaluate evidence from police lineups, reported The New York Times . The decision could help transform the manner in which police officers administer lineups — a fundamental aspect of police work.
In its ruling, State of New Jersey v. Henderson , the New Jersey Supreme Court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures have limitations and can result in unintentional misidentifications. The decision provides a framework for defendants to challenge eyewitness 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.
The U.S. Supreme Court has ruled that the due process clause requires judges to exclude, at times, eyewitness testimony based on unreliability. In its 1977 decision Manson v. Brathwaite , the U.S. Supreme Court held that the trial court must first decide whether an eyewitness identification was in fact impermissibly suggestive. If the court finds that the procedure was impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court must focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.
As the Supreme Court explained, "reliability is the linchpin in determining the admissibility of identification testimony." To assess reliability, the trial court must consider five factors:
• The opportunity of the witness to view the criminal at the time of the crime.
• The witness's degree of attention.
• The accuracy of his prior description of the criminal.
• The level of certainty demonstrated at the time of the confrontation.
• The time between the crime and the confrontation.
The U.S. Supreme Court will take up the issue of eyewitness identification this fall. In Perry v. New Hampshire , the Supreme Court must determine if due process protections apply to all eyewitness identifications made under suggestive circumstances or just those identifications made when the suggestive circumstances were the result of police actions.
The special master appointed by the New Jersey Supreme Court found that science has proven that memory is malleable. A substantial body of eyewitness identification research has revealed that an array of variables can affect and dilute memory and lead to misidentifications.
The New Jersey Supreme Court agreed with the special master that "[t]he science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications."
Some states have instituted changes to their eyewitness identification procedures. In 2001, New Jersey's attorney general issued a memorandum to all law enforcement agencies establishing a statewide protocol for eyewitness identifications. In 2005, Wisconsin's attorney general issued a similar set of identification guidelines recommending, among other things, "double-blind, sequential photo arrays and lineups with non-suspect fillers chosen to minimize suggestiveness, non-biased instructions to eyewitnesses, and assessments of confidence immediately after identifications."
North Carolina was the first state to pass legislation mandating, among other things, pre-lineup instructions and blind and sequential lineup administration. The special master cited Illinois, Maryland, Ohio, West Virginia, and Wisconsin as having passed similar laws regarding lineup practices.
Pennsylvania law regarding eyewitness identification seems to have lagged behind other jurisdictions.
In the state Supreme Court case Commonwealth v. Robinson , the defendant sought to offer expert testimony shedding light upon the reliability of eyewitness identifications. The court noted that the use of expert testimony to challenge eyewitness identification had already been rejected in Pennsylvania. The only new wrinkle with Robinson was the issue of cross-racial identification. The appellant argued that the victim, who was white, would have greater difficulty identifying an African-American suspect.
The court found that allowing an expert to testify that a cross-racial identification is less reliable than a same-race identification would improperly intrude upon credibility determinations that remain the sole province of the jury.
However, change may be coming in Pennsylvania with the regard to the use of expert witnesses. According to The Philadelphia Inquirer , this past March a state Superior Court panel ruled in Commonwealth v. Alicea , that lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit.
The Superior Court ruled that the testimony of an expert on police interrogation and false confessions would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession. Judge Mary Jane Bowes wrote, "Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television are unlikely to understand how these methods can lead to an innocent individual confessing."
Establishing evidence-based policies that govern the interaction between law enforcement and eyewitnesses provides the most promising means to avoid eyewitness misidentification and wrongful conviction.
Many municipal police departments in Pennsylvania have adopted at least some reforms as they relate to eyewitness identification. However, those reforms need to be adopted statewide and mandated for every police department in the commonwealth. 
Matthew T. Mangino is the former district attorney of Lawrence County, Pa. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com.

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The Cautionary Instruction: Orwell, Global Positioning Systems and the U.S Supreme Court

The Pittsburgh Post-Gazette/Ipso Facto
September 16, 2011

In 1949, George Orwell published Nineteen Eighty-Four, a novel. Orwell describes a futuristic state, its leader Big Brother and the constant use of surveillance to maintain order. More than half-a-century later, Orwell’s book is drawing a lot of comparisons to global positioning system (GPS) technology used in modern law enforcement investigations.
GPS, in development since as early as 1959, came into its own during the first gulf war. The desert-based war was the first combat use of GPS, and it was hugely successful.  Law enforcement quickly realized the potential for GPS and many civil libertarians were quick to realize the technology’s impact on civil liberties.
The U.S. Supreme Court will hear a case this fall that will try to reconcile what was once considered science fiction with the reality of everyday life. At stake are the fundamental protections of the Fourth Amendment, freedom from “unreasonable search and seizure.”
In United States v. Jones, the Supreme Court will hear arguments regarding what some consider to be the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?
In 2005, police investigating alleged drug activity secured a warrant, valid for 10 days, from a federal judge who authorized the attachment of a GPS device to a vehicle registered to the wife of Antoine Jones. The attachment of the device was authorized to occur in Washington, D.C. Instead, investigators attached the device while the car was parked in Maryland. The GPS device was used to record Jones’ movements around-the-clock for four weeks -- without seeking a time extension from the court.
In overturning Jones’ conviction, Federal Judge Douglas H. Ginsburg wrote, “A person who knows all of another’s travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts.”
In the Jones case, the Government is arguing that GPS devices can be especially helpful in the early stages of an investigation as the police gather evidence. Requiring a warrant could hurt the government's ability to investigate drug trafficking, terrorism and other crimes.
Jones’ attorneys argued, "The advent of satellite-based tracking technology has enabled the government to engage in 24-hour tracking of the movements of any private citizen for extended -- indeed unlimited -- periods of time.”

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Death Penalty in Ohio to be Reviewed by State Supreme Court

Ohio Supreme Court Chief Justice Maureen O'Connor announced a committee will review the state's death penalty law and determine if changes should be made to the 30 year old law, according to the Associated Press.

The review will make sure the current system is administered fairly, efficiently and in the most "judicious manner possible,” said Judge O’Connor.  "Is the system we have the best we can do?" said O'Connor told the Associated Press. She added "Convening persons with broad experience on this subject will produce a fair, impartial, and balanced analysis."

The 20-member committee, convened by the Supreme Court and the Ohio State Bar Association, will consist of judges, prosecuting attorneys, criminal defense lawyers, lawmakers and academic experts.

O'Connor made it clear in the annual speech given by chief justices that the review won't debate the law itself, reported the Associated Press.

A 2005 review of 20 years of capital punishment data by the Associated Press concluded that death sentences varied widely depending on where in the state charges were brought. The AP review also found people convicted of killing a white victim were twice as likely to receive a death sentence as those whose victim was black.

As it stands, the state is the midst of an unofficial death penalty moratorium while a federal judge decides whether the policies Ohio follows for carrying out executions are constitutional. Three executions have already been postponed and on Thursday defense attorneys filed a motion to delay an execution scheduled for next month.

To read more: http://www.chron.com/news/article/Ohio-s-top-judge-calls-for-death-penalty-review-2161796.php

Ohio's death penalty derailed

Youngstown Vindicator

Matthew T. Mangino

Sunday, September 11, 2011

Has the tide turned in Ohio? At one point, several months ago, Ohio had executed more prisoners in 2011 than any other state. In 2010, Ohio was behind only Texas in the number of executions carried out. Texas has been the most prolific purvey of state-sponsored death since the death penalty was reinstated in 1976.

Ohio was literally setting the standard for executions nationwide. In 2009, after a brief moratorium following the botched execution of Romel Broom, Ohio was the first state to move from the standard three-drug execution protocol to a single-drug protocol.

Ohio was the second state to replace the sedative sodium thiopental used as an execution drug, currently in short supply, with pentobarbital. Ohio is the only state with a single-drug protocol using only pentobarbital.

Inconsistencies

That all changed in early July, when U.S. District Court Judge Gregory L. Frost delayed the scheduled execution of death row inmate Kenneth Wayne Smith after finding Ohio enforces some of its execution policies inconsistently.

Judge Frost wrote, “It is the policy of the State of Ohio that the state follows its written execution protocol, except when it does not.” Judge Frost continued, “Sometimes with no physical ramification and sometimes with what has been described as messy if not botched executions.”

The court found that the state failed to have the required medical personnel available, failed to properly document preparation of the execution drugs, or to prepare inmates for lethal injection.

Since then, the Ohio Supreme Court has scheduled two executions for well into 2013 providing additional time to address the concerns with Ohio’s execution protocol. Gov. John Kasich postponed a second execution, this one scheduled for August 16, 2011. The New York Times has suggested that Gov. Kasich’s action “is an admission that Ohio’s management of the death penalty is broken and further proof that the machinery of death cannot be operated responsibly anywhere.”

Ohio is front and center in America’s death penalty debate. The state is a hotbed of prominent politicos who have turned their back on capital punishment. Recently, a number of prominent Ohioans came out publicly in opposition to the death penalty. Earlier this year, Ohio Supreme Court Justice Paul E. Pfeiffer declared his opposition to the death penalty in an op-ed published in the Cleveland Plain Dealer.

Former Ohio Attorney General Jim Petro recently told the Cincinnati Enquirer, “I used to believe that the death penalty was a crime deterrent and cost less than incarcerating someone for 40 years. I know now it does not save money and is not a deterrent to crime.” Petro and Pfeiffer were both members of the legislature in 1981 when Ohio’s death penalty statute was passed.

Death row

Last year, Ohio moved more offenders off of death row than were placed on death row. There were eight executions and three commutations. Only seven offenders were sentenced to death statewide. At the current rate it would take 38 years to clear Ohio’s death row. Nationwide the numbers are even more abysmal. There are about 3,400 offenders on death row. It would take 73 years to execute everyone on death row at last year’s execution rate — even without adding another person to death row.

The death penalty is in question, not because some killers do not deserve themselves to die, but rather because the act of execution has become so rare as to indicate the presence of caprice if an offender is executed or fortuity if an offender is not. Neither caprice nor fortuity has a place in the criminal justice system.

The Cautionary Instruction: How much would you pay for...

The Pittsburgh Post-Gazette/Ipso Facto
Matthew T. Mangino
September 9, 2011

There has not been a significant terrorist attack in the United States since 9/11. There have been a number of terrorist acts thwarted by intelligence agencies, law enforcement efforts and probably a little luck -- like the shoe bomber, Richard Reid in 2002; the 2006 liquid explosives plot targeting airliners, which resulted in a boon for the travel size shampoo manufacturers; the 2009 Detroit bound airliner plot; and last year’s car bomb in Times Square.

A decade after the horrendous September 11, 2001 attacks on the World Trade Center and the Pentagon, the Los Angeles Times reported that federal and state governments are spending about $75 billion a year on domestic security, setting up sophisticated radio networks, upgrading emergency medical response equipment, installing surveillance cameras and bombproof walls, and outfitting airport screeners to detect an ever-evolving list of mobile explosives.

“The number of people worldwide who are killed by Muslim-type terrorists, al Qaeda wannabes, is maybe a few hundred outside of war zones. It's basically the same number of people who die drowning in the bathtub each year," said John Mueller, an Ohio State University professor.

Professor Mueller asks, "So if your chance of being killed by a terrorist in the United States is 1 in 3.5 million, the question is, how much do you want to spend to get that down to 1 in 4.5 million?"
Your chance of being killed by a run-of-the-mill domestic murderer is at least 175 times greater than being killed by a terrorist. In 2009, there were 15,214 murders in the U.S., about 5.4 murders for every 100,000 people. The number of murders per capita is down considerably from the mid-1990s, but substantially higher than the death by terrorism threat.

Knowing that, how much would you pay for more police protection?

Congress doesn’t believe you’d pay anything more for police protection -- in fact congress is paying less. The Justice Department’s 2011 budget was slashed by nearly $1 billion -- a 2.9 percent decrease from last year. Local police departments, many of which are already reeling from the economic downturn, are going to feel the pinch.

The cuts represent about a 17 percent across the board reduction for a variety of law enforcement grant programs, and about $296 million less for the Community Oriented Policing Services program that covers the salaries and benefits of newly hired police officers for three years.

Pennsylvania U.S. Senator Bob Casey said cuts to state and local law enforcement and the COPS program, “will negatively impact the safety of my constituents and citizens across the country.”

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