The Innocence Project of Texas is preparing to grade about 1,200 law enforcement departments statewide on their compliance with a law that requires police agencies to adopt eyewitness identification policies.
“Unless somebody is really grading their papers, nobody knows whether the law is really being implemented,” said Scott Henson, a policy consultant for the Innocence Project.
Last year, Texas legislators approved a measure that required police agencies to adopt policies meant to prevent faulty eyewitness identification in criminal cases. Under the law, departments were required to adopt a written policy by Sept. 1. Last week, the Innocence Project sent the departments letters requesting copies of their lineup policies.
Faulty eyewitness identifications are the leading cause of wrongful convictions, according to the New York-based Innocence Project. In 297 DNA exonerations across the nation, the Innocence Project reported, mistaken identifications contributed to 75 percent of the wrongful convictions.
In Texas, faulty eyewitness identification contributed to wrongful convictions in 40 of the 52 DNA exonerations, according to the National Registry of Exonerations.
“There’s almost nothing more powerful in a courtroom than eyewitness testimony,” Henson said.
But studies have shown that eyewitness accounts can be easily influenced and that memories can be flawed. In his 2011 book Convicting the Innocent, University of Virginia School of Law professor Brandon Garrett studied 250 DNA exoneration cases to determine where the justice system went awry. In many of the cases, he wrote, police used problematic techniques, suggesting to the witness whom they should identify and unwittingly pressuring the witness to identify a person despite uncertainty.
Assistant Chief Bryan Carlisle of the Shenandoah Police Department said police did not intentionally set out to implicate innocent people. But scientific studies, he said, have shown officers that how they conduct lineups significantly affects the accuracy of witness identifications.
“We really thought as a profession we had been doing right,” Carlisle said. “Now, science has caught up and said, ‘Hey, there really is a better way to do this.’”
In 2008, the Justice Project, a criminal justice reform group, found that 88 percent of Texas police departments had no guidelines for conducting lineups. In 2011, state Rep. Pete Gallego, D-Alpine, and state Sen. Rodney Ellis, D-Houston, wrote a bill that required departments to adopt best practices. Under the law, if a department doesn't adopt a policy or fails to follow it, the defense can inform the jury that evidence was not collected using best practices. And in a recent ruling, the Texas Court of Criminal Appeals ruled that a judge abused his discretion by not allowing expert testimony about eyewitness identification and its potential flaws in a case where best practices where not used.
Legislators instructed the Law Enforcement Management Institute of Texas at Sam Houston State University to develop a model policy on eyewitness identification that departments could use as a template.
That policy sets out guidelines for conducting lineups in a way that does not suggest to witnesses whom they should select. Those guidelines are the criteria against which the Innocence Project of Texas plans to judge the policies that departments have adopted, Henson said.
Among other things, the criteria include ensuring that the person presenting the photos does not know who the suspect is, asking witnesses how confident they are that the person they identified is the same one they saw at the crime scene, giving witnesses instructions that include letting them know the perpetrator may not be among the choices presented, showing potential suspects sequentially instead of simultaneously, and choosing subjects for the lineup who have similar characteristics to one another and to the suspect described.
Carlisle, who has been traveling the state conducting training for the Texas Police Chiefs Association, said he expected that many departments would receive high marks on the Innocence Project’s grading scale.
“Hopefully what they’ll find is that most agencies are in compliance with the law,” he said.
Henson said that he expects to have received the policies and issued grades for the law enforcement agencies by early November.