PREVENTING WRONGFUL CONVICTIONS WITH EVIDENCE-BASED PRACTICES

Eyewitness Misidentification & Wrongful Convictions

Exonerations since 19891,913= Number of DNA and non-DNA exonerations in U.S.

347= Number of DNA exonerations in US.

13= Number of DNA + non-DNA exonerations in Iowa

Eyewitness ID Exonerations71% = Percentage of nation’s 347 DNA exoneration cases involving eyewitness misidentification.

96= # of mis-ID cases where real perpetrator was later identified.

102= # of additional crimes committed by real perpetrators in mis-ID cases, including 64 rapes and 17 murders.

Eyewitness Misidentification & Wrongful Convictions

Wrongful Convictions involving Mis-ID

Illinois: 55

Wisconsin: 13

Missouri: 12

Iowa Examples of Problematic Eyewitness IDs“Take Home Test” Davenport, 2009

“All the Suspect was Missing was His Two Front (Gold) Teeth” Des Moines 2007

Why is Eyewitness Memory Unreliable?

Estimator Variables: Factors at the crime scene that cannot be controlled.• Lighting• Distance• Presence of a weapon• Own-race bias

System Variables: Factors that law enforcement can control such as lineup procedures.

Evidence-Based Practices

• National Academy of Sciences• International Association of Chiefs of Police• American Bar Association

Endorsed By:

‘Core Four’ Reforms1. Blind or Blinded Administration2. Witness Instructions that Perpetrator May or May Not Be

Present3. Proper Fillers that Match Witness Description of Perp4. Witness Confidence Statements

Benefits of Reform

For Law Enforcement• Fewer filler picks & fewer witnesses “burned for future use.”• Focuses law enforcement resources on the right person during

investigations. • Protects officers against defense challenges.

For the Public• Improved public safety by helping to convict the guilty and

protect the innocent.• Increases public confidence in the criminal justice system.• Avoiding civil payouts stemming from wrongful convictions.

National Picture

•3 States•MA, NJ, OR

State High Courts•11States•CT, CO, GA, MD, NE, NC, OH, TX,

VT, WI, WV

Legislation

•5 States•HI, MI, MT, NV, RISubstantial Voluntary

Compliance (75% + agencies)

19 States Uniformly Adopted “Core Four” Best Practices

Legislation

• Prescriptive Statute: North Carolina (2007), Connecticut (2011),

Georgia (2014)

• Model Policy Statute: Colorado (2014), Nebraska (2016), Maryland

(2014), Texas (2011), Vermont (2014), West Virginia (2014)

Wisconsin (2006)

• Remedy: Only OH & NC statutes have legal remedies.

• Manson v. Brathwaite: Built-in constitutional protection against

unreliable eyewitness IDs.

Elements of Successful Statewide Voluntary Adoption

Require Written Policies/Development of Model Policy: Requirement that all agencies have a written policy that minimally comports with best practices.

Training in best practices for new recruits & veterans.

Tracking Compliance: In the absence of a law, need an entity that will collect and review agency policies to ensure they are in compliance with best practices.

Roadmap & Timeline for implementation.

Resources Provided by Innocence Project

1. Statewide training sessions.

2. Mailing model policy & implementation tools to agencies.

3. Mailing & assessing compliance surveys.

Case Studies on Successful Reform

Montana (2016): Interim Study & Substantial Voluntary Adoption

Nebraska (2016): Statute & State Model Policy

Colorado (2014): Best Practices Committee for Prosecutors issued model policy and legislation.

Iowa Eyewitness ID Reform

2013 Survey by Dr. Neil McNabb, Buena Vista University •198 agencies surveyed; 116 responded.•58% of respondents did not have written eyewitness identification policies and procedures.•96% selected fillers based on resemblance to the suspect, not perpetrator. •53% indicated that they were aware of an investigation conducted by their agency where an eyewitness picked an individual who was not the suspect or perpetrator.

Iowa Eyewitness ID Reform: Next Steps

1. Develop state model policy.

2. Distribute model policies and implementation toolkits.

3. Coordinate training sessions.

4. Conduct compliance survey.

False Confessions & Wrongful Convictions

•Nationally, 29% of 347 DNA exonerations involved a false confession.

• In Iowa 9 of 13 wrongful convictions involved false confession in which innocent person implicated himself or someone else.

Terry Harrington & Curtis McGee:•17-year-olds wrongfully convicted of murdering retired police captain in Council Bluffs.•Spent 25 years in prison.• Conviction based on false confession by a friend during police interrogation.•Settled with Council Bluffs for $6.2 million and Pottawattamie County for $12 million.

Benefits of Recording Interrogations

For the Innocent

• Safeguards against wrongful convictions stemming from false confessions.• Deters against coercive or illegal interrogation tactics.• Alerts factfinders to vulnerabilities such as mental illness or intellectual disabilities.

For Law Enforcement

• Strengthens cases by removing doubt about voluntariness of statement.• Reduces motions to suppress confessions/statements and increases guilty pleas.• Protects officers against frivolous claims of misconduct.

National Landscape

Mechanism • Court Action: 6 states• Statute: 15 states + D.C.

Crime Categories• All crimes: 3 states.• Specified Felonies: 12 states.• All felonies: 5 states• Homicide only: 1 state

Remedy• Presumed Inadmissibility: 6 states• Possible inadmissibility/jury instruction: 3

states.• Jury instruction: 7 states• Possible withholding of state funds: 1 state

21 states + District of Columbia require recording of certain interrogations. Federal law enforcement agencies have a policy of recording interrogations for all crimes.

Iowa Recording of Interrogations Practices

2006: State v. Hajtic strongly encouraged recording custodial interrogations.2007: Iowa Attorney General issues statement that Hajtic should be interpreted as a mandate. •Department of Public Safety adopted a general order to record interrogations for ALL crimes in DPS facilities.2011: Iowa State Bar Association surveys law enforcement agencies and receives responses from 205 of 421 agencies.• All but one agency had access to recording equipment & record

interrogations in some form. • Nearly 60% do not have written policies.• 38% record at discretion of officer.

Why is legislation the most effective option?

Legal remedy is necessary to ensure compliance. No built-in protection against unrecorded confessions.

Guidelines are voluntary.

Legislation creates uniformity.

Why is legislation the most effective option?

Legal remedy is necessary to ensure compliance. No built-in protection against unrecorded confessions.

Guidelines are voluntary.

Legislation creates uniformity.

Cost Concerns

The Innocence Project surveyed 100 agencies in MA and WI.

Recording Devices: • $50 for handheld digital cameras.• Closed circuit systems $500 or more• Body cameras.

Storage: 70% use existing computer servers; 60% burn recordings onto DVDS.

Installation & Maintenance: 71% said equipment was self-installed; 63% reported no maintenance costs.

Transcription: 70% do not transcribe interviews.

Small Agencies: Majority use handheld digital recorders. 22% reported equipment sharing arrangements with other agencies.

Long-Term Savings

• Improved court efficiency with fewer pretrial motions to suppress statements and confessions, and more guilty pleas.

• Time savings for officers who no longer need to review and piece together notes from interviews.

• Reduction in lawsuits stemming from frivolous claims of officer misconduct during custodial interviews.

• Protecting taxpayers from civil settlements. For example, Terry Harrington and Curtis McGee settlement cost Council Bluffs $6.2 million & Pottawamie County $12 million.

Legal Remedy Concerns

Dupage County State Attorney’s Office (Chicago) & Vermont Law Enforcement Advisory Board:

• “Prosecutors support the use of videotape. We have all become accustomed to having videotaped statements.”

• Very rare that interrogations are not recorded in violation of the statute.

• Law enforcement is able to explain why recording was not feasible under the law’s exceptions.

• No additional litigation on suppressing unrecorded statements.