The Legislature takes up photo and live lineup identification procedures in criminal cases.
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There are thirty-eight exonerated Texans with a cumulative five hundred and seven years in prison to their names. The state of Texas leads the country in the number of wrongful convictions later corrected by DNA evidence. Close to 80 percent of these cases have involved false eyewitness identifications, yet few police departments have any written policies to help prevent these errors.
Senator Rodney Ellis (D-Houston), with the help of the Texas Defender Service, the Innocence Project, and the Justice Project, has created a bill that will ensure that local police officers keep their practices reliable and uniform.
“We in the criminal justice system have the responsibility to do it right the first time. There is too much at stake,” said Houston Police Chief Harold Hurtt at a press conference in late March. “We all recognize that we need to do a better job, but the best approach would be to phase some things in and also to do research. And we need to go back and review our present process as well as those proposed with the new legislation.”
Police in many districts support some procedural changes but were wary of the first draft of the bill, which had harsher repercussions. Guidelines were stricter as well, and required following a set of “best practices” for eyewitness identification developed by eyewitness identification expert Gary Wells, a psychology professor at Iowa State University, and others. It also requires that, if such procedures weren’t followed correctly by police officers, then the eyewitness ID would automatically be excluded in court.
“Accountability rests at the local level,” said Mark Clark, executive director of the Houston Police Officers’ Union. “It’s not an issue for the state to be concerned with…and [legislators] should come back on this bill instead of kicking the police officers at the bottom rung.”
According to Clark, who is not one of the bill’s supporters, there seems to be a chain of incompetence in which everyone takes part. “The prosecutors allowed [a questionable identification], the judges allow it, and the defense attorneys took money, and fell asleep at the wheel.”
In its current form, Senate Bill 117 grants the Bill Blackwood Law Enforcement Management Institute of Texas the right to create an outline for photo and live lineup procedures. Police may also employ their own policies, so long as they follow certain guidelines involving aspects such as the selection of fillers, instructions given to the witness, and the documentation of all accounts. The bill also emphasizes the need for “double-blind” administration, so that the person who is conducting the lineup doesn’t know the guilty party and would be less likely to lead the witness.
Although unreliable witness identification isn’t automatically excluded in court, defense attorneys can argue for the judge and jurors to take into account that eyewitness policies were not followed.
The bill “affects [attorneys] in court if the policies are not followed, and it is a fair line for questioning,” said Assistant District Attorney Kevin Petroff. “It’s not automatic mistrial… but if not followed, the jury can decide what weight to give the ID.”
The District Attorney’s office did not take a position for or against SB 117, but “the hope is to get better evidence in the future, and if it does that, then I’m all for it,” Petroff said.
“Criminal defense lawyers want more of a confrontational and punitive approach and [prosecutors] want more of a collaborative and cooperative approach…that has as much carrot as it does stick, rather than all stick,” said Shannon Edmonds, Director of Government Relations for Texas District and County Attorney’s Association. “Police don’t like that administration of eyewitness identification is based on technicalities, dotting the i’s and crossing the t’s.
“There are few issues that all prosecutors see eye to eye on,” Edmonds continued. “Prosecutors have told me that they feel juries are more skeptical about eyewitness identification. They are eager to improve a way to obtain the ID to make a stronger case and for juries to have renewed confidence in the system.”
As lawmakers and law enforcement continue to view this issue differently, compromise will become a necessity to enact change. The bill is making progress in the Texas legislature, proving that it may be time for a change. “Sometimes you have to make difficult decisions in politics; do you take a stand, refuse to budge, and risk nothing happening, or do you seize the opportunity to work out a bill we know can pass and is a step in the right direction and is going to improve things?” said Brandon Dudley, Ellis’s chief of staff. “Do we wish the bill were stronger? Of course. But we do believe it’s an integral step toward improving procedures and preventing wrongful convictions from happening in the first place.”