Yesterday, the NJ Supreme Court released its opinion on Henderson v. State. In this case, the police used an independent administrator to administer the photo lineup, but after the witness could not make a definitive identification, the officers who worked on the case and knew who the suspect was, came into the witness room and interacted with the witness in manner that would make it more likely the witness would make an identification.
The Court was faced with the issue of how to properly evaluate the reliability of an eyewitness identification in order to determine whether it would be admitted in trial. The trial court, relying on the Manson standard used nationwide since the Manson opinion was issued by the United States Supreme Court in 1977, determined that the identification in this case was not even suggestive and that it, therefore, was admissible. The Appellate Division reversed citing a violation of a mandatory eyewitness identification guideline issued by the NJ Attorney General, which rendered the ID per se inadmissible. The State appealed and, because this case relied heavily on social scientific studies of this issue, the NJ Supreme Court referred the case back to a Special Master in order to make findings of fact regarding the status of scientific consensus on myriad facets of eyewitness identification research and make a recommendation on what framework should be used moving forward when trying to assess the reliability of an eyewitness ID.
The Special Master heard ten days of testimony from various experts and considered over 200 published, peer-reviewed studies. The Innocence Project appeared as amicus curiae. The Special Master issued an 85-page report last year rejecting almost all of the State’s contentions and adopting the Innocence Project’s proposed factual and scientific findings as well as its proposed framework for assessing the reliability of IDs. That report was sent to the NJ Supreme Court and then we all waited for some action.
Yesterday, not to be outdone, the NJ Supreme Court issued a 142-page opinion rejecting the outmoded Manson standard and adopting, for New Jersey courts at least, most of what the Innocence Project wanted and 30 years of scientific science supported.
The opinion is long, but it is easily the most comprehensive take-down of the position on eyewitness ID reform most often represented by law enforcement and prosecutors. They generally dispute science that is consensus and undisputed. They often argue that misidentification is an overstated problem. They always argue that the court system is equipped to deal with the problem, so reform is not necessary. They argue that the problem is vastly overstated by people like us and defense attorneys. Yet this opinion put all those strawman arguments to bed, completely rejecting them as not supported by the evidence in the case. The State had 10 days to prove the worth of the arguments, putting forward their own experts and their best advocacy, and they failed on the merits on almost every count.
The opinion dismantles the Manson legal architecture for determining the admissibility of an eyewitness identification and replaces it with a new evaluation that considers both system and estimator variables and which does not rely on false assumptions that have been undermined by scientific advancements in this area.
This is the result we want to see in Florida if we have coordinated, consistent, high-level advocacy from defenders at all stages of the criminal process. Kudos to all the folks who worked tirelessly on this case to achieve this result. With your lead, you have made all of our jobs a bit easier.
In this, our May monthly video update, Seth Miller reports on the recently-ended Florida legislative session and our upcoming gala celebration on June 4th with Danny Glover. The update is summarized in more detail below.
Legislative Session Ended: The Bad & The Good
The Bad: While the Florida Senate passed Witness Identification Reform Bill, the Florida House of Representatives failed to take up and pass this important legislation.
The Good: The Florida Innocence Commission was funded. The Commission will continue its work investigating the causes of wrongful convictions and making recommendations to prevent future ones.
You can read a more detailed Legislative wrap-up here.
Upcoming Fundraising Event Details
IPF prepares for A Night of Heroes – a gala celebration honoring Florida’s DNA exonerees on June 4th at the Safety Harbor Resort & Spa. The evening will be hosted by Danny Glover. More information about the evening and who will be attending is available here.
Senate Bill 1206, Witness Identification Reform Act, sponsored by Sen. Joe Negron (R-Palm City), passed the full Senate on April 29, 2011, with a vote count of 34-5.
We asked you to reach out to your Senators and Representatives and you have. Thank you.You have made a difference in the Legislative process.There is still more to do.
Call To Action
The Witness Identification Reform Act will make a difference by removing suggestiveness from the identification process, and diminishing misidentifications that cause wrongful convictions IF it is passed by the Florida House of Representative.
For this to happen—the full House to consider and pass SB 1206—it must be placed on the Special Order Calendar THIS WEEK. The House Rules & Calendar Committee meets to set the calendar for the next day at 8:00 PM each night this week. At this time, they will determine what bills the House will consider the following day.
Thank them for their hard work, urge them to place SB 1206 on the Special Order Calendar for consideration by the full House this week, and to support this vital piece of legislation when it comes up for a vote. Remember we need you to call tonight before the Rules and Calendar Committee meets at 8 PM. If you can’t call tonight, please call each day until SB 1206 is put on the Special Order Calendar.
Additional Information About the Bill
Just as a reminder, the bill provides for:
double-blind administration of line-ups using an independent administrator to prevent influencing the witness’s selection, however inadvertently;
cost-effective alternatives to the independent administrator;
standard instructions for eyewitnesses before viewing the line-ups; and
educational materials and training programs for law enforcement on how to conduct line-ups.
This is a fiscally neutral bill. In fact, this bill promises to save Florida money. In the three DNA exonerations that were cleanly tied to misidentification (i.e. no other contributing factors), the State has already paid out more than $3 million.
Last night, amidst an hour long televised press conference on the need for healthcare reform now, President Obama was about to finish up when he was asked a question about race. Lynn Sweet, from the Chicago Sun Times, asked Obama what he thought about Harvard Scholar Henry Louis “Skip” Wells being arrested within his home after locking his keys inside his own house.
Obama talked about the unfortunate situation and how the Cambridge police acted both reasonably in answering the call that a person was trying to break into Gates’ home and stupidly when they arrested Gates for disorderly conduct even though it was clear he lived there. Obama even brought a moment of levity in his answer when he said that if he was caught trying to break into his home (the White House), he would probably be shot.
But what stuck out to me was when Obama was talking about the problem with racial profiling in America. He said this:
That is an example of how race remains a factor in society. That doesn’t lessen the incredible progress that has been made. I am standing here as testimony to the progress that has been made. And yet, the fact of the matter is that you know this still haunts us. And even when there are honest misunderstandings, the fact that Blacks and Hispanics are picked up more frequently and oftentimes for no cause, casts suspicion even when there is good cause. And that is why I think the more we are working with local law enforcement to improve policing techniques so we’re eliminating potential bias, the safer everyone’s going to be.
This harkens back to the great criminal justice reform work Obama did as a legislator in Illinois. But I think what Obama’s saying can be applied more broadly than just in the context of racial profiling.
There are a number of simple criminal justice reforms of police practices, which have been proven through peer-reviewed scientific studies, to diminish the chances of someone being wrongfully accused and wrongfully convicted. If we accept the notion that Blacks and Hispanics are more likely to get stopped by police, then they are more likely to be arrested, accused and convicted of crimes they didn’t commit. The 240 DNA exonerations nationwide teach us that witness misidentification is the single leading cause of the wrong person going to prison and real culprit remaining free. This lessens the public’s confidence in criminal justice outcomes and undermines good IDs.
Reforming the way we do lineups and photo arrays to identify perpetrators to make these procedures less suggestive would go along way towards undercutting the effect of dubious cross-racial identifications, diminish the chance that the young black guy who was profiled gets wrongfully identified and later convicted for the crime, and allows law enforcement to concentrate on catching the true perpetrators of crimes.
Obama’s call for more work and broader consensus on this issue is extremely important and one we should all heed.