Flaws in the ABA’s Jury Instruction on Cross-Race

At a groundbreaking two-day eye-ID litigation conference in NYC in March co-sponsored by the Eyewitness ID Reform Litigation Network, we addressed the issue of cross-race instructions, including the ABA version referred to this week at the Kansas Defenders blog. In short, while it is certainly good news that the ABA is paying attention to this issue, since the average instructions on eye-ID are woefully inadequate, the ABA instruction is far from ideal for the following reasons.

First, the initial language is conditional. “You ‘may’ consider, if you think it is appropriate …,” instead of you “should” consider.

Second, there is no mention of the numerous scientific studies that have shown, empirically, that cross-racial bias exists. In cases where experts have not testified at trial on the subject (i.e., most cases), jurors are left ignorant of the copious social science research on the topic. Instead of stating that “scientific studies have shown,” the court cites the amorphous “ordinary human experience.”

Third, the instruction suggests erroneously that sufficient contacts with another race may well overcome cross-race bias. Again, no science is cited. Moreover, it appears that contacts alone do not offset cross-race bias; rather, it is exposure combined with differentiating tasks (i.e., merely living in a neighborhood versus teaching a class of 30 in which one must distinguish among members) that might mitigate the effect, but even then the mitigation appears to be minimal.

Fourth, there is no discussion of prejudice (i.e., that cross-race bias exists in people seemingly without prejudice).

A better instruction (though not a perfect one), and one which I would encourage lawyers to propose instead of the ABA version, can be found in Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 (1984):

“In this case the identifying witness is of a different race than the defendant. In the experience of many it is more difficult to identify members of a different race than members of one’s own. Psychological studies support this impression. In addition, laboratory studies reveal that even people with no prejudice against other races and substantial contact with persons of other races still experience difficulty in accurately identifying members of a different race. Quite often people do not recognize this difficulty in themselves. You should consider these facts in evaluating the witness’s testimony, but you must also consider whether there are other factors present in this case that overcome any such difficulty of identification.”

The Network has sample motions for jury instructions on both estimator and system variables. Lawyers should be encouraged to tailor these to the facts of their cases and submit.

Attorneys should also look at the Long and Brink cases in Utah, and contact the Network about Utah’s sample eye-ID instructions on various factors from which, particularly when combined, is very comprehensive (though the cross-race portions can be made more robust).

Zeke Edwards
The Innocence Project

Lineup “Wild Cards” as Precaution Against Mis-ID

We reported on a New Zealand study last year that seeks to test the effectiveness of including a “wild card” in a police lineup, as an additional protection to cue to the witness that “none of the above” is a perfectly valid choice. Personally, I think this is a fantastic idea — imagine the difference between a multiple choice question where “none of the above” is an option, vs. the exact same question without that option; as a test-taker, you’re far more likely to guess in the latter scenario. In the realm of police lineups, guesses often have grave consequences.

In an update on this study, researcher Dr. Rachel Zajac of Otago University notes that “The biggest misconception about lineups is that the perpetrator will be there.” Her early research suggests that providing a visual “none of the above” option, or “wild card,” in each lineup, increases the likelihood that a witness will not select a lineup member when he or she is uncertain, rather than guessing. In other words, adding the non-pick to the set of affirmative options better communicates the fact that not selecting anyone from the lineup is an acceptable choice, and may further reduce the likelihood of misidentification in a way that cautionary instructions alone do not.

On the prospects of her recommendations being adopted by law enforcement, Dr. Zajac reports: “In my experience, the police are very receptive to evidence-based ideas that would facilitate the accuracy of the evidence they solicit from witnesses.”

Another Flawed Lineup, Another Exoneration in Dallas County, and a Glimmer of Hope

Thomas Clifford McGowan Jr. has spent the last 23 years in prison because he was selected from a fundamentally flawed photo lineup, after his photo was collected from a traffic offense two days after a rape/burglary.

From the Dallas Morning News:

The 49-year-old would become the 16th Dallas County inmate to be cleared through DNA testing since 2001, the highest total for any county in the country. Like almost all of the other discredited convictions, Mr. McGowan’s was based primarily on the victim selecting his photograph from a police lineup.

The photo array from which the victim selected his photograph was a sloppy collection of black and white photos, color photos, and photocopies of photos. Not surprisingly, Mr. McGowan’s photo was a color original. Further, after the witness tentatively pointed to Mr. McGowan, the investigating officer insisted that the witness make a positive ID, rather than allowing her to describe her level of certainty in her own words.

Barry Scheck and the Innocence Project have worked for the year to free Mr. McGowan.

By not allowing the victim to describe her certainty in her own words, Mr. Scheck contended, Detective Corley implied Mr. McGowan was the attacker.

“I have no doubt that the officer wasn’t trying to do anything wrong here,” Mr. Scheck said. “It’s just a terrible, bad practice.”

Even the local prosecutors are beginning to agree that there is a systemic problem:

Dallas County prosecutor Mike Ware, who oversees the conviction integrity unit, said Tuesday that problems with photo lineups are “a common thread that runs through almost all of the wrongful conviction we’ve run across.”

The Dallas Morning News also reports that Mr. Ware is now publicly embracing the importance of mandatory double-blind lineup procedures for photo arrays, which is an important and significant development, at least to my knowledge. As we reported previously, Dallas County has been laying the groundwork for a field study on police lineups in a purported attempt to develop more reliable procedures, and until now there appeared to be reason for concern that the study would replicate the fundamentally flawed methodology of the now-infamous Illinois/Mecklenburg study that turned out to be little more than a rubber-stamping of the flawed status quo procedures that continue to cause innocent people to be put in prison.

Now, Mr. Ware is on record stressing the importance of double-blind procedures, which all social scientists (and reformers) have long agreed must be a component of any standard lineup procedure that hopes to reduce wrongful convictions.  Presumably this means that the Dallas study won’t repeat the futile endeavor of “testing” blind procedures against non-blind procedures, as was done in Illinois under the guidance of Sheri Mecklenburg, with the number of suspect picks as the measure of “reliability.”

This is big news on the eyewitness ID reform front.  We’ll try to stay on top of this as more information on the Dallas field study begins to surface.

“Clothing Bias”: More than Common Sense

Chief Judge Easterbrook in the 7th Circuit ruled on a case yesterday in which the central issue on appeal was whether an ID was properly admitted over a motion to suppress, where all the members of the lineup were wearing identical prison clothes with navy blue slippers, with the exception of the suspect, who wore white tennis shoes — where eyewitnesses had described one suspect as wearing white tennis shoes. (cite: United States v. Williams, — F.3d —-, 2008 WL 1701843 (7th Cir. 2008)).

At oral argument, both parties argued that “common sense” supported their respective positions — for the defense, common sense tells us that putting the suspect in white tennis shoes where everyone else has exactly identical clothing makes the suspect stand out. For the government, apparently it has the opposite effect, or no effect.

But the court wanted more than common sense arguments, and it specifically requested empirical data in support of the arguments. Unfortunately, none was provided, and the court was forced to rule on the basis of battling “lawyers’ talk” alone — despite the fact that empirical data do exist on the question of clothing bias as it relates to identification procedures.

Drs. Jennifer Dysart and Rod Lindsay published a chapter in the Handbook of Eyewitness Psychology (vol. 2, 2007) that focuses on clothing bias, and reports that, in target-absent lineups, “clothing bias does lead to a significant increase in false identifications of innocent suspects.” (p. 143, citing Lindsay et al., Do the Clothes Make the Man? An Exploration of the Effect of Lineup Attire on Eyewitness Identification Accuracy, 19 Canadian J. Behavioural Sci. 463)). The same chapter cites to a number of other studies on the same topic.

Dysart et al. published another study in 2006 that revealed the significant effect of clothing bias in show-ups (Dysart et al., Show-ups: The Critical Issue of Clothing Bias, 20 Applied Cognitive Psychol. 1009 (2006)), and Freire et al. published a study showing a serious problem with clothing bias among children subjected to a lineup condition (Freire et al., Lineup Identification by Children:
Effects of Clothing Bias, 28(3) L. & Hum. Behav. 339 (2004)).

While there may be room for more research on this issue, to say that no empirical data exist is an unfortunate oversight.

The redeeming part of the decision, unrelated to lack of empirical data entered into the record on clothing bias, is Easterbrook’s observations on common sense as it relates to eyewitness identifications:

If there is one thing known about eyewitness identification, it is that ‘common sense’ misleads more often than it helps…The problem with ‘common sense’ is that experience tells us what leads to confidence about whether we have seen a given person before but does not provide reliable ways to test whether that confidence is justified. People confuse certitude with accuracy and so are led astray. Psychologists have established that certitude often is unwarranted. It takes data rather than intuition to answer questions such as “can non-uniform footgear in a lineup lead to misidentification?

In support of his observations on the failures of common sense as a guide to understanding the factors affecting eyewitness identifications, Easterbrook cites to Gio Shay and Tim O’Toole’s great article on the shortcomings of Manson v. Brathwaite (PDF), which systematically dismantles the Supreme Court’s obsolete framework governing the admissibility of eyewitness evidence.

Thanks to Gio Shay for the heads up on this decision.

Justice Denied Again for Troy Davis

The AP is reporting that the Georgia Supreme Court has denied Troy Davis’s latest effort to obtain a new trial.  Mr. Davis’s attorneys filed a new motion, following the court’s March 17 denial of their earlier extraordinary motion for a new trial, this time moving for reconsideration of that earlier ruling.

A substitute opinion was also issued, with the same 4-3 split and the dissenting opinion remaining the same.  New opinion available here (PDF).

Thanks to Deirdre O’Connor at Emory Law School for the tip, and for tirelessly seeking a remedy for Mr. Davis.

Landmark Eye-ID Training Held in NYC

Misidentification is the single largest contributing factor to wrongful convictions — of the 215 DNA-based exonerations to date, over 75% involved mistaken identification. In response to this recurring travesty, on March 14 and 15, 2008, at NYU Law, over 300 attorneys attended “A New Legal Architecture: Litigating Eyewitness Identification Cases in the 21st Century”, a ground-breaking two-day conference on litigating eyewitness identification cases organized by the Eyewitness Identification Reform Litigation Network (the Innocence Project, the Public Defender Service in Washington, D.C., the National Legal Aid & Defender Association, and the National Association of Criminal Defense Lawyers), along with co-sponsors John Jay’s Center on Modern Forensic Practice, the New York State Association of Criminal Defense Lawyers, and NYU Law.

The conference faculty, led by some of the leading eyewitness ID experts and most well-respected trial attorneys nationwide, including Barry Scheck, Jim Doyle, Cathy Ditraglia, Gary Wells, Tim O’Toole, Russ Stetler, Dick Burr, Cynthia Jones, David Rudolf, Joshua Dubin, and others, urged defense attorneys to embrace scientifically-informed litigation techniques at every stage of an eyewitness identification case with the hopes of both protecting the innocent and reforming eyewitness identification laws in the areas of admissibility of identification evidence, the admissibility of experts at hearings and trial, and jury instructions.

The seminar began with a powerful lecture by Jennifer Thompson, a rape victim whose misidentification of Ronald Cotton put Mr. Cotton in jail for over ten years. In the years since Mr. Cotton’s exoneration, Ms. Thompson (now close friends with Mr. Cotton) has lectured around the country about the problems surrounding identification evidence and the need for legal and legislative reform. With the Thompson/Cotton case serving as a guide, the seminar’s faculty took the audience through every stage of an eyewitness case, including developing themes and theories, conducting scientifically-informed investigation and discovery practice, filing an array of suppression motions as well as motions requesting that the police preserve all identification evidence (including all photos — mugbooks included — shown to a witness), finding and working with experts, selecting an open-minded, independent jury, delivering a powerful opening statement, cross-examining honest but mistaken eyewitnesses and police officers whose procedures failed to conform with local rules and/or nationally-accepted best practices, and crafting effective closings and jury instructions.

The conference also served as the launching point for the Eyewitness Identification Reform Litigation Network’s new website, www.eyeid.org, which contains a wealth of information to assist defense counsel in litigating ID cases and, through continual updating and improvement, will become the comprehensive resource for defense attorneys. Please visit (defenders only)!

Meanwhile, if you are interested in learning more about the Eye-ID Network, its website and materials, or in obtaining a CD-Rom of the conference powerpoint, contact Zeke Edwards at zedwards@innocenceproject.org. For a videotape of the conference (through which attorneys in most states can earn CLE credits), along with a set of conference materials, contact NACDL at www.nacdl.org.

“Last Chance” in 2008 for Lineup Reform in CT

Legislators in Connecticut will consider a bill today that would require that lineups be conducted by an officer unaware of the identity of the suspect so as to avoid suggestion, as is the norm in scientific study, and also to present lineup photos sequentially (one at a time), rather than simultaneously. In order for the bill to reach the full assembly for a vote, it would have to make it out of the Judiciary Committee by 5:00 today.

State Rep. Mike Lawlor, a former prosecutor and co-chair of the Judiciary Committee, signaled that the double-blind provision could pass, but without the sequential provision. I don’t know what the chances of that really are, but that would be a substantial step in the right direction, since the double-blind provision is by far the most important reform being proposed.

Everything we know about social science tells us that, whether intentional or not, when human subjects are being probed for information and the person doing the probing anticipates a specific answer, that answer tends to be communicated to the subject. Lineups are no different, and simply requiring that they are conducted by someone unaware of the identity of the suspect could go a long way to curbing wrongful convictions resulting from faulty identification procedures.

Despite Lawlor’s resistance to the idea due to the purported cost issues associated with bringing in an officer to administer the lineup who is not aware of the identity of the suspect, simple alternatives are available at zero cost, such as the “folder method” in which a witness peruses lineup photos in a series of folders, with the individual photos out of view of the officer. (More info on the “folder method” here, p. 10 (PDF).)

It’s time for legislators to stop dragging their feet and making unfounded excuses to avoid taking simple steps to curb wrongful convictions. I’ll plan to post an update once I find out if Connecticut does the right thing this afternoon.

UPDATE: Per Gideon in the comments, another year will pass in Connecticut without improvements to the police procedures at the root of wrongful convictions.  Shameful indeed.

No New Trial for Troy Davis

The Georgia Supreme Court today ruled 4-3 that Troy Davis, now again facing execution, will not get a new trial. According to the court, statements by a slew of witnesses who claimed that they had lied at trial under police pressure were insufficient to support a finding that a different result would likely be reached if the case were subjected to a new trial — in a case in which the only evidence presented was the apparently coerced testimony of the same witnesses. As a result of this inexplicable finding, the Georgia Supreme Court refused to stand in the way of the execution of a man who insists he is, and whom many believe to be, innocent.

This is a case in which, as we reported previously, one witness offered the following to the court:

I kept telling them that I didn’t know. It was dark, my windows were tinted, and I was scared. It all happened so fast. Even today, I know that I could not honestly identify with any certainty who shot the officer that night.
[…]
After the officers talked to me, they gave me a statement and told me to sign it. I signed it. I did not read it because I cannot read.

And another offered:

I nodded and repeated what they said, whether it was true or not…. I am not proud for lying at Troy’s trial, but the police had me so messed up that I felt that’s all I could do or else I would go to jail.

It boggles the mind that the court did not find the new evidence sufficient evidence to support a finding that a different result would be likely if a new trial were granted. The only witnesses who were not themselves accused of committing the crime came forward to claim that they had lied under pressure from police to convict Troy Davis. Three witnesses further claimed that Sylvester Coles had confessed to the crime. Two witnesses further stated that Coles was in possession of a handgun later the same night.

Chief Justice Sears dissented, along with Hunstein and Benham. According to Sears, the GA Supreme Court’s interpretation of the applicable legal standard is wrong:

I believe that this case illustrates that this Court’s approach in extraordinary motions for new trials based on new evidence is overly rigid and fails to allow an adequate inquiry into the fundamental question, which is whether or not an innocent person might have been convicted or even, as in this case, might be put to death.

Sears further urged that “it simply defies all logic and morality” to disregard “categorically” recantation testimony that appears to undermine the validity of the evidence presented at trial. While the majority claimed that it “endeavored to look beyond bare legal principles…to the core question” of whether a jury would reach a different conclusion if presented with the new evidence, the dissenting justices urged the application of a different standard that would treat the recantations with a higher level of deference — or at least something short of categorical exclusion:

[T]his Court is free to adopt rules and standards that best promote the ends of justice, and this case illustrates with alarming clarity why this Court’s rules should allow trial courts to consider all forms of evidence that would be admissible if a new trial were ordered and to exercise sound discretion in weighing that evidence.

Sears and the other dissenters further found the new evidence sufficiently compelling to warrant, at minimum, a hearing by which to assess its credibility. Unfortunately the majority was not persuaded by her sound reasoning.

My understanding is that Mr. Davis’s case now goes back to the Georgia Board of Pardons and Paroles, which has the authority to commute his sentence to life with parole, after which point it may parole him. I will plan to follow up with action alerts as I’m advised by those continuing to work on this case on anything that members of the public might be able to do to persuade the parole board or others to help reverse this tragedy.

The High Cost of Flawed Police Procedures

In the midst of an ongoing effort to reform the flawed police procedures used by Georgia law enforcement agencies to collect eyewitness evidence, the Atlanta Journal-Constitution published a great piece by Cynthia Tucker on “The Incalculable Price of Faulty Eyewitness IDs.”

It begins:

The Georgia General Assembly is once again preparing to compensate a man for a grave injustice, once again considering a cash payment to a victim of a wrongful conviction. On Monday, the House Appropriations Committee recommended a payment of $1.2 million to Willie Otis “Pete” Williams, who was freed from prison in January 2007 after serving nearly 22 years for a rape he did not commit.

A million dollars isn’t nearly enough. A billion dollars wouldn’t be enough.

After touching on the incomprehensible loss to a man wrongfully imprisoned for 22 years, the author laments that “the General Assembly has become practiced at the fine art of negotiating the value of stolen years.”

She continues:

You’d think this steady procession of Georgians cruelly stripped of their freedom would prompt more than million-dollar payments from the state treasury. You’d think their fates would inspire agonizing debate over the frailties of the state’s criminal justice system. And you’d think that legislators would rush to find remedies that would at least lower the number of wrongful convictions.

You’d be wrong.

There is still time for the GA legislature to do the right thing and move this out of the Rules Committee and put this important reform bill to a vote. Let’s hope Ms. Tucker is wrong this time.

ACTION ITEM: If you’d like to contact GA legislators about this issue and urge them to do the right thing, an action alert is below the fold with contact info and a scripted email, compliments of Laura Moye with Amnesty International.

A “Simple Tweak” Is All It Would Take To Avert Wrongful Conviction. Why Aren’t We Doing It?

The Daytona Beach News-Journal has a great short article called “A way to end ‘tells’ for witness lineups,” in which the author touches on the “masses of data showing how flawed eyewitness testimony can be” and cites to the 2004 exoneration of a local man, Wilton Dedge, who was convicted on the basis of a flawed eyewitness identification.

We’ve talked about this topic at length, but it’s encouraging to see it making its way into mainstream media coverage of the systemic wrongful conviction problem that continues to plague the country. As the News-Journal points out, the most fundamental problem with police lineups — subtle cues by the lineup administrator suggesting the identity of the suspect to the witness — can be easily and immediately cured by implementing a “simple tweak”:

One of the easiest, and potentially most effective, fixes involves a simple tweak to a basic police tool: the lineup. This practice — in which police actually line up a row of people, or display a set of photographs and ask a witness to identify one as the criminal — is subject to flaws, particularly when the officer administering the lineup knows who the suspect is. Even though the officer might not intend to taint witness identification, it happens, through subtle “tells” such as fleeting changes of facial expression.

The solution is to remove that officer from the lineup process, substituting another officer — one who has never seen the suspect and doesn’t know who the ringers are. This procedure, called a “double-blind” lineup, is the best way to ensure that eyewitness IDs are as accurate as possible.

A “simple tweak” is all it takes, with little or no cost to law enforcement agencies or taxpayers. The fact that we’re still debating this, while innocent people continue to be convicted on the basis of false eyewitness testimony, is inexplicable.