Ensuring Justice by Improving Investigative Techniques through Eyewitness Identification, Incentivized Testimony, and Interrogations Reform

In order to engender public confidence in the criminal justice system, it is critical that the best possible evidence is available at trial and that the procedures and practices used to isolate that evidence can be relied upon to yield accurate results.  In large part, local law enforcement agencies take cues and direction from federal law enforcement.  It is therefore critically important that federal practices provide the kind of direction-and that local law enforcement agencies receive appropriate resources-to ensure accuracy from the investigative phase through post-conviction proceedings.

Unfortunately, gaps in the safekeeping of records and evidence, accounts of unprofessionalism, and the exposure of wrongful convictions across the country has undermined public confidence in criminal convictions.  A number of reforms could be employed on the federal level to assure more reliable investigations, curb the production of wrongful convictions and identify the true perpetrators of crime.  The implementation of these reforms might be accomplished through legislation, executive order or changes to agency policies and procedures.

The modification of existing federal law enforcement policy will not only serve to aid federal investigations, but will provide much-needed guidance to the states, who seek to make improvements to their own criminal justice systems.  To ensure that local law enforcement agencies receive adequate resources to effectively implement those critical reforms that are implemented on the federal level, federal-to-state funding sources must also be made available.

Summary of the Problem: As the pace of DNA exonerations has grown across the country in recent years, wrongful convictions have revealed disturbing fissures in our criminal justice system.   The nation's 223 DNA exonerations have exposed an overlapping array of sources of wrongful conviction.  The causes of wrongful conviction that have emerged from ongoing analyses of wrongful convictions-from false confessions to deficiencies in eyewitness identification procedures to the use of incentivized testimony-also implicate non-DNA cases.  Indeed, criminalists estimate that less than 10% of criminal cases contain biological evidence available for DNA testing.  Therefore, the improvement of investigative techniques promises to prevent those future miscarriages of justice that would otherwise remain undiscoverable given an absence of DNA evidence.  In order to prevent future wrongful convictions, it is critical that these problems be addressed through appropriately-funded reforms.

Proposed Solutions:

Executive: Issue an executive order requiring the promulgation of federal standards for federal law enforcement agencies-grounded in best practices and scientifically-supported research-with respect to eyewitness identification procedures, the recording of custodial interrogations, the use of incentivized testimony, and the affirmation of judicial discretion in ordering comparisons of crime scene DNA and fingerprint evidence to relevant databases.  The issuance of such an order would also provide much-needed guidance to state law enforcement agencies.

Specifically the executive order should encompass the following:

1. Enable federal judicial orders of comparisons of crime scene DNA and fingerprint evidence to relevant databases.  In roughly one-third of the nation's post-conviction DNA exonerations, comparison of the crime scene DNA to the CODIS system pointed specifically and extremely strongly to what seemed to be the real perpetrator of those crimes.  (We say "seemed to be" because in many instances ultimate prosecution of that person was not pursued by the government.)  In many instances, the person identified as the real perpetrator committed additional crimes while the innocent person was the focus of police investigation and prosecution, and ultimately wrongfully convicted.

2. The adoption and implementation of innocence-related reforms to identify and prevent wrongful conviction of federal crimes in the following areas:

I) Adopt and implement eyewitness identificationprocedures shown by reliable, scientifically-supported evidence to minimize the likelihood of misidentification, including:

• The issuance of instructions to the witness (i.e. a series of statements provided by the administrator of the identification procedure to the witness that deter the witness from feeling compelled to make a selection);
• The requirement that the identification procedure be administered by a blind investigator, or an individual who does not know who the suspect is;
• The requirement that a lineup be properly composed (i.e. suspect photographs should be selected that do not bring unreasonable attention to him; non-suspect photographs and/or live lineup members (fillers) should be selected based on their resemblance to the description provided by the witness-as opposed to their resemblance to the police suspect);
• The requirement that immediately after the eyewitness makes an identification, the witness provides a statement, in his own words, that articulates the level of confidence he has in the identification made; and
• The requirement that an identification procedure be properly documented (i.e. electronically recorded; photographs of lineup members preserved).

II) Electronically record all custodial interrogations, during the time in which a reasonable person in the subject's position would consider himself to be in custody and a law enforcement officer's questioning is likely to elicit incriminating responses. This is simply the only way to create an objective record of what transpired during the course of the interrogation process.

III) Regulate the use of incentivized informants by:

• Requiring pre-plea and pre-trial hearings that assess reliability and corroborate the content of informant testimony in all cases where informant testimony is intended for use at trial or in connection with a plea agreement;
• Requiring that accomplice testimony must be corroborated by non-accomplice testimony and/or evidence - both in the grand jury and at trial - before it can be deemed legally sufficient to establish either probable cause or guilt beyond a reasonable doubt;
• Approving jury instructions that seek both to educate jurors about the long-established fallibility of informant testimony and the specific factors that may have influenced the testimony in the particular case at hand;
• Requiring that the FBI produce FD-209 forms (regarding contacts with informants) pursuant to discovery; and
• Establishing a uniform system of state and federal informant registries, through which law enforcement officers would maintain information about informants, as well as a national informant registry.

3. Preservation and Safekeeping of Records

• Require preservation of notes and similar records
• Require that the FBI create separate FD-302 forms (reporting or summarizing interviews) for each contact
• Enhance agency record-keeping and retrieval systems

4. Professionalism

• Implement personnel policies that allow supervisors to promote the best and prune the worst.

Legislative Changes:

1. Pass legislation to enable federal judicial orders of comparisons of crime scene DNA and fingerprint evidence to relevant databases.

2. Pass legislation requiring federal law enforcement agencies to adopt and implement eyewitness identificationprocedures shown by reliable, scientifically-supported evidence to minimize the likelihood of misidentification (see details of improved procedures in description in above section 2-I).  Such legislation would allow the court to render inadmissible any identification yielded from a procedure that failed to comply with those recommended procedures outlined in the legislation.

3. Pass legislation requiring federal law enforcement agencies to electronically record all custodial interrogations, during the time in which a reasonable person in the subject's position would consider himself to be in custody and a law enforcement officer's questioning is likely to elicit incriminating responses.Such legislation would allow the court to render inadmissible any untaped confession.

4. Pass legislation that would regulate the use of incentivized informants by implementing the procedures outlined in section 2-III above.  Such legislation would require the court to render inadmissible any incentivized testimony that did not comply with the mandate outlined in the legislation.

Legislative Appropriations (Solutions w/ Funding Requests): Increase funding for law enforcement technology to effect the implementation of eyewitness identification, preservation of evidence and recording of interrogation reforms on the state level.  Laptop computers can assist identification reform; interrogations can be recorded with video recording equipment; and biological evidence can be barcoded and catalogued using software systems already designed for this use.

This can be accomplished through the Justice Assistance Grant Program (JAG), formerly known as the Edward Byrne Memorial Assistance Grant Program, which "allows states and local governments to support a broad range of activities to prevent and control crime and to improve the criminal justice system."  Justice Assistance Grants funding was reduced by 65% between 2007 and 2008.  These allocations should be increased to meet former levels of support for law enforcement and "technology grants to solve crime and prevent future wrongful conviction" should be added as an articulated JAG "purpose area" for funding.  

Jurisdiction:

Legislative Branch: House and Senate Judiciary Committee
House and Senate Crime, Justice and Science Appropriations
Subcommittees

Background: Across the country, states have acknowledged the critical importance of reforming investigative practices to improve the quality of our justice system.  North Carolina, New Jersey, and West Virginia have all required implementation of at least some eyewitness identification reforms, with Connecticut, Georgia, Maryland, Vermont and Wisconsin all also taking statewide action on the issue.  Seven states and the District of Columbia have passed statewide legislation requiring the recording of custodial interrogations in at least some crime categories, and six state supreme courts have taken action to accomplish the same.  In addition, over 500 jurisdictions nationwide, including large metropolitan areas such as Atlanta, Boston, Denver, Las Vegas, Louisville, and San Francisco, regularly record police interrogations.  Only Illinois has passed a law aimed at regulating the use of incentivized informants.  Twenty-five states, in addition to the District of Columbia, have created legislation that compels the automatic preservation of biological evidence upon conviction.

Despite all of these efforts to reform the criminal justice system, many states fall short.  These time-tested and scientifically supported reforms, bolstered by practitioner experience, should be implemented uniformly across the nation.  What is required is federal guidance, coupled with funding opportunities to local law enforcement to effectuate these reforms. 

Executive Branch: NIJ, under Janet Reno, convened a Criminal Justice system-wide Technical Working Group, which closely studied the issue and issued the recommendations that became Eyewitness Evidence: A Guide for Law Enforcement, published in 1999.  Since that time, the scientific research and practice has made even more clear the value of eyewitness identification reform.  Recently, the Uniform Law Commission established a drafting committee on Electronic Recordation of Custodial Interrogations in order to spur needed reform in this area.  Action in state commissions in both Illinois and California has identified the need for the regulation of incentivized informants.  Efforts have begun in Congress to establish a federal commission charged with identifying best practices with respect to biological evidence preservation.

Legislative Branch: In 2007 Rep. Ellison drafted a "Due Process Grant Program" bill, which sought to provide $10,000,000 in funding to support state and local law enforcement for eyewitness identification reform, the recording of interrogations, and the preservation of evidence.

Senator Amy Klobuchar, former Hennepin County Attorney, had employed the entire eyewitness "reform" package while in that role and was a public advocate of eyewitness reform, writing favorably about the practice in law review article.

Rep. Ellison introduced a bill, "Effective Law Enforcement Through Transparent Interrogations Act of 2007" (H.R. 3027), in the first session of the 110th Congress, which would require the electronic recording of custodial interrogations in Federal criminal cases. The bill has not yet been heard.

In the wake of a national series in the Denver Poston the failure to properly preserve evidence, Congressman Conyers and Senator Ken Salazar expressed interest in pushing this reform on the federal level. Rep. Ellison's above-referenced "Due Process Grant Program" bill would have defrayed costs associated with properly preserving evidence for state and local law enforcement.

Potential Allies, Potential Opposition, and Public Opinion:

Potential Allies: Senator Obama sponsored legislation when he was an Illinois state legislator which required the videotaping of interrogations in homicide investigations.  That bill became law, and he has cited it as one of his proudest accomplishments as a state legislator.

• Innocence Community (Innocence Network/Innocence Project)
• The Justice Project
• National Association of Criminal Defense Lawyers (NACDL)
• ACLU
• American Bar Association
• Independence Institute
• The Constitution Project
• Rep. Conyers, Jr. (held JFAA oversight hearings and is on the record discussing the importance of avoiding wrongful convictions)
• Rep. Ellison (introduced legislation mandating electronic recording of interrogations)
• Rep. Eddie Bernice Johnson (sponsored hearings about wrongful convictions in Texas)
• Rep. Hank Johnson (worked on eyewitness identification reform in Georgia)
• Rep. Sanford Bishop (trial lawyer for a subsequently exonerated Georgian man and sponsor of the Wrongful Convictions Tax Relief Act)
• Sen. Amy Klobuchar (As a County Attorney in Minnesota, Klobuchar implemented eyewitness identification procedure reforms)
• Sen. Leahy (sponsor of the Innocence Protection Act)
• Sen. Brownback (sponsor of the Wrongful Convictions Tax Relief Act)
• Sen. Schumer (sponsor of the Wrongful Convictions Tax Relief Act)
• Rep. Scott (longtime supporter of innocence issues)
• Rep. Sensenbrenner (sponsored Justice for All Act in 2004)
• Rep. Delahunt (sponsored Justice for All Act in 2004)
• Rep. Rush (sponsor of Congressional Gold Medal bill for Barry Scheck and Peter Neufeld)
• Rep. Maloney (sponsor of Congressional Gold Medal bill for Barry Scheck and Peter Neufeld)
• Rep. Gutierrez (sponsor of Congressional Gold Medal bill for Barry Scheck and Peter Neufeld)

(Note:  The legislators listed above have previously supported some form of legislation that provides justice in the wake of wrongful convictions; their specific support for each of these proposals has not been established.)

Potential Opposition: Federal and national law enforcement and prosecutor associations do not like having these reforms legislated or imposed on them, but are beginning to see innocence reforms as best practices.  The Innocence Project, which has explored these reforms with many such organizations, would be able to provide more specifics about different organizations' regard for the different reforms.

Experts:

• Barry Scheck, Co-Founder, Innocence Project
• Peter Neufeld, Co-Founder, Innocence Project
• Exonerees: Many of the nation's 223 DNA exonerees will speak in support of and the need for the abovementioned law enforcement reforms
• Representatives of Law Enforcement Agencies:
  • Chief Darryl Stephens - Charlotte-Mecklenburg Police Department
  • Ken Patenaude - Detective Lieutenant Northampton, Mass
  • Gil Kerlikowske - Police Chief, Seattle, Washington
  • Sgt. Paul Carrolls - Retired Chicago PD
• Recording of Custodial Interrogations:
  • Det. James Trainum
  • Violent Crime Case Review Project
  • Violent Criminal Apprehension Program/ViCAP
  • Metropolitan Police Department/OSD
  • Det. Jim Ryan
  • South Brunswick Police Department
• Preservation:
  • Major Kevin Wittman (retired) - Charlotte-Mecklenburg PD

For Further Information:

Byrne Grant Program: http://www.ojp.usdoj.gov/BJA/grant/byrne.html

Scheck, Barry, Peter Neufeld, and Jim Dwyer. Actual Innocence: When Justice Goes Wrong and How to Make it Right, New York: New American Library, 2000

Achieving Justice: Freeing the Innocent, Convicting the Guilty,Report of the ABA Criminal Justice Section's Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process, Chicago, IL: American Bar Association, 2006