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Eyewitness ID

Not seeing eye to eye

By Jordan Smith, Fri., April 10, 2009

Rodney Ellis
Rodney Ellis
Photo by Jana Birchum

Will new eyewitness ID procedures actually help prevent faulty identifications in criminal cases, or is the proposed law, now awaiting the consideration of the full Texas Senate, merely symbolic? That's the question being posed by several stakeholders, including Austin defense attorney Keith Hampton, the legislative chair for the Texas Criminal Defense Lawyers Association, who argues that recent changes to the initial eyewitness identification bill – Senate Bill 117 by Sen. Rodney Ellis, D-Houston – have weakened it to the point of impotency. "I think that Texas is squandering a rare opportunity for really meaningful reform in eyewitness identification," he said.

Incorrect eyewitness ID has been implicated in more than 80% of wrongful convictions in Texas – and with the exoneration of 38 men, Texas leads the nation in wrongful convictions. As originally filed, SB 117 would have mandated that police agencies adopt detailed policy covering the administration of live and photographic lineups. The bill was based on "best practices" for eyewitness ID developed by experts, including Iowa State University psychology professor Gary Wells, who has spent three decades studying eyewitness ID. The bill tracked a number of best practices detailed by Wells, including requiring police to warn a witness that the actual perpetrator might not be in the lineup, requiring lineup subjects to be chosen based on how closely they resemble the features of the suspected offender, and requiring police to administer the lineup "blind" – that is, the officer who oversees the lineup should not know which person in the lineup is the suspect.

The bill was immediately controversial, sources say, in part because of the prospect of the "exclusionary rule" coming into play, giving defense attorneys the chance to have lineup results thrown out if police did not comply with the new law. Texas has the "broadest exclusionary rule in the country," said Shannon Edmonds, head of governmental relations for the Texas District & County Attorneys Association.

Gov. Rick Perry has made it clear he would veto any bill that required police to follow a specific set of rules or that would mandate evidence exclusion based on not having followed those rules, said Brandon Dudley, Ellis' chief of staff. Given the possibility of a veto, stakeholders had to fashion a solution that would move the bill forward. In doing so, they stripped out language detailing the specific standards for police eyewitness identification policies. The substitute bill calls on Sam Houston State University's Bill Blackwood Law Enforcement Management Institute of Texas to develop a model police policy for photographic and live lineups. It also requires police agencies to adopt a policy on lineup procedures no later than Sept. 1, 2010. Police may adopt their own policy provided it specifically addresses several areas, including how photos or individuals are chosen for a lineup, what instructions are to be given to a witness, and how police intend to administer a "blind" lineup.

Importantly, the current version of the bill specifically takes off the table the possibility of evidence exclusion or the ability of a jury to disregard a lineup. And that is what has some people, including Hampton, concerned. "This is unprecedented language exempting a procedural statute that is intended to protect the innocent," he said. Erasing the exclusionary rule and a jury instruction means there is no meaningful change to the law – and no way to meaningfully curb the potential for wrongful convictions, which is what Dallas Co. Assistant District Attorney Mike Ware, supervisor of the office's Conviction Integrity Unit, told lawmakers when the House companion to Ellis' bill (House Bill 3583 by Rep. Pete Gallego, D-Alpine) was heard last week in the House Criminal Jurisprudence Committee. "If improper procedures are used [by police], there's really no remedy," Ware told the committee. "Conceivably, all these men" who were subject to improper lineups and have since been exonerated "could be convicted again." Moreover, Hampton argues that exempting the exclusionary rule and the jury instruction from applying to a new law sets a bad precedent for the future. He said he understands that prosecutors may not want a lineup to be excluded, but the provision for a jury instruction should have been left on the table. Edmonds said that Hampton "was the only person who advocated for that. ... It was not a point of compromise that we reached. None of the other stakeholders thought that was" a necessary solution.

Edmonds said the current incarnation of the bill does give defense attorneys new power to attack the propriety of a police lineup. Police will be required to adopt policies built on "best practices," and if those aren't followed, defense attorneys will be able to demonstrate that during cross-examination of police witnesses in court. The proposed law "allows the defense attorney to point out areas where [there are] problems [with the lineup procedure] and allows the prosecutor to point out where law enforcement did it properly and puts that in the lap of the jury to decide what they're going to do," Edmonds said. "The jury doesn't have to be instructed. This leaves the playing field even."

Jeff Blackburn, chief counsel for the Innocence Project of Texas, said that at first he thought both the exclusionary rule and the jury instruction provisions should be included as remedies to an improperly conducted lineup. "After a series of earnest discussions with prosecutors that I trust and police I trust, I really did get convinced that it was ... too much to get done in this session," he said. Frankly, Texas law enforcement agencies are not policing themselves in this area, and SB 117 would force them to do so, he said. "That's a pretty solid first step." Blackburn said this is a pragmatic way to provide defense attorneys with a "huge weapon in cross-examination, because it is a statewide mandated policy developed pursuant to state law." Depend­ing on how things pan out, further tweaking to the law could be accomplished in subsequent legislative sessions, he said. But for now, "instead of beating our chest about the way things ought to be," he said, the Innocence Project is "getting behind what could be." Indeed, Dudley, Ellis' chief of staff, said the bill could be stronger but that this is still a "move in the right direction" that "gives the framework" necessary for future reforms."

But Hampton is still skeptical – and he doesn't believe the current bill would do anything to prevent further wrongful convictions. Texas "could've led the way, on the heels of 38 exonerations," he said. "Instead, we've produced a bill that is wholly dependent on the kindness of police officers."

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