To demonstrate how one would go about researching the factors that lead to wrongful convictions, the author has laid out three research questions and how she would go about finding relevant information on the topics, and how she would present answers to these research inquiries.
Research Question 1:
What is the biggest factor contributing to wrongful convictions? What are remedies for this problem?
To go about finding what the biggest factor is that contributes to wrongful convictions, I would go to the Innocence Project and look at their explanations of the causes of wrongful convictions. Then I would peruse the data available from the Justice Project to see what remedies are best applicable in this case.
Here is my answer to the first part:
Bad witness IDs are responsible for the vast majority of cases in which people were wrongly convicted. There are a few scientific factors to explain why that is. Traditionally, when a witness is asked to view a photo lineup, it includes multiple pictures simultaneously, usually five or six mugshots, or if it’s an in-person lineup, multiple people are present at once. That is problematic for most witnesses, because human beings tend to make relative judgments. According to the Justice Project, a people have a natural tendency to weigh lineup participants in comparison to each other, and not in comparison to their memory of the suspect. Thus, a witness viewing a lineup will tend to pick the person who looks most like the perpetrator in comparison to the other people in the lineup - regardless if the actual culprit is within the lineup or not.
Another problem is the lack of double-blind administration of the lineup. If an officer knows which person in the lineup is the suspect or person of interest, they can intentionally or unintentionally give cues to witnesses during the lineup process. These can include simple statements like “good job,” or “sure,” or “that’s okay,” or can be nonverbal cues like body language, posture, or facial expression. Because memories are not airtight, and are able to be influenced, witnesses then interpret and internalize these cues, which can make an impact on which person they choose out of the lineup.
Once the identification is made, many police departments fail to make adequate documentation of how confident the witness feels about his or her ID. This can lead to the witness’s confidence level after the identification to fluctuate - for example, a witness could feel maybe 50% sure the person the ID’d was the suspect, but as she receives cues from police and prosecutors closer to trial, her confidence could increase, and at trial she may testify that she was “completely certain” in her identification of the suspect. Prosecutors will take the witness’s confidence level into account, and not having an accurate grasp of it can prove to be dangerous for defendants. It is a combination of these factors that lead to incorrect eyewitness identifications.
Here is my suggestion for appropriate remedies:
To make eyewitness IDs more reliable, police departments should present photo lineups one photo at a time, so a witness can only judge their memory against one photo at once, rather than making relative judgments. The administration of the lineup should also be double-blind, so administrators shouldn’t be able to give any feedback on a witness’s choices. Then, the officer should ask the witness how confident they feel about their choice and record that confidence level immediately, so their selection can’t be overstated at trial.
Research Question 2:
What policy arguments are being made for abolishing the use of snitch testimony in cases? Do you think jury instructions that include a background to the jury about the unreliability of these testimonies are adequate?
Jailhouse informant or snitch testimony is problematic for a variety of reasons, and there are a number of policy arguments advocating for the abolishment of this kind of evidence from the courtroom altogether. This testimony is biased, and the incentive for inmates to lie about their testimony is large. These incentives can range from free cigarettes or improved living conditions to a reduction in the inmate’s sentence because he or she cooperated with the prosecution team. Especially for inmates in federal prisons or those serving long sentences, assisting with another inmate’s case via snitch testimony can be the only way for an inmate to serve less time, or get out of prison entirely. This option is also attractive to inmates because an inmate only needs to know a little about the other inmate’s case in order to offer up some kind of facts to the prosecution, and these fabricated tales are typically hard to disprove. Because of this, there is very little risk involved for the inmates, because the criminal prosecution of perjury by jailhouse snitches is “almost nonexistent.” So this system works notoriously well and easily for these inmates - they just need to know a little about another inmate’s case, offer that information to the prosecution, make their stories seem somewhat convincing, and either gain rewards in the form of a reduced sentence, or at least do not lose anything for falsely testifying.
This testimony is also among the most persuasive to juries, probably because juries tend to believe that just because an inmate is also in jail with the defendant, he or she must know secrets about the defendant’s case. In addition, the safeguards of cross-examination and post-conviction review do not always attack this testimony where it is weakest, making the testimony continue to seem credible to an unassuming juror. Federal Judge Stephen Trott warned about the unreliability of informant testimony:
Criminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law. This willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies, and double-crossing anyone with whom they come into contact, including—and especially—the prosecutor.
In addition, the portion of wrongful convictions that were directly caused by incorrect jailhouse snitch testimony is roughly 21 percent of all later exonerations.
In Moore v. State, the defendant was convicted of capital murder and sentenced to two life sentences. A fellow inmate, Andre Bully, testified on behalf of the state and alleged that Moore confessed to him that he committed the murders. The defense put on two additional witnesses to contradict Bully’s testimony, who testified that Bully admitted to them that Moore did not confess to him, and that Bully had just read Moore’s discovery materials in his cell when Moore was not present. According to the witnesses, Bully also said he planned to lie in order to expedite his sentence.
On appeal, the Supreme Court of Mississippi decided that the trial court’s failure to give the following jury instruction about the unreliability of snitch testimony constituted reversible error:
The Court instructs the jury that the law looks with suspicion and distrust on the testimony of an alleged informant, and requires the jury to weigh same with great care and suspicion. You should weigh the testimony from alleged informant, and passing on what weight, if any, you should give this testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion.
The court held that because this particular jury instruction did not urge the jury to “weigh Bully's testimony with ‘caution and suspicion,’” that it was inadequate on instructing the jury about how much weight should be given to Bully’s testimony.
The standard the court articulated in deciding whether the use of jailhouse snitch testimony was appropriate at all is based on whether the snitch(es) received anything in exchange for their cooperation with the prosecution. If the snitches received something directly in exchange, the admission of their testimony was improper. In Moore, Bully was released on his own recognizance after cooperating with the state. The court held that this meant Bully received something directly because of his testimony, and because of that, his testimony should have been barred from being heard in the case. The court reversed and remanded the case for a number of reasons, including the fact that the jury should have been better instructed about weighing Bully’s testimony, and the fact that Bully received something directly because of his cooperation with the prosecution.
In contrast, in State v. Prince, the Court of Appeals of Louisiana for the Third Circuit held that because the snitch testimony of an inmate who had cooperated with the prosecution was corroborated, the trial court acted within its discretion in not supplying a jury instruction on snitch testimony to the jury at all. The defendant in Prince had requested that the Court give the following jury instruction:
An incentivized witness is defined as one who may be eligible for some benefit as a result of his assistance in the investigation or prosecution of another person. Whether the witness was involved in the offense for which Defendant is charged or not, corroboration is desirable, but it is not always indispensable. The jury may convict on his uncorroborated testimony. And while it is not the rule of law, it is rather the rule of our experience in dealing with that class of testimony that while you may convict upon the uncorroborated testimony of an incentivized witness, still you should act upon his testimony with great caution, subject to careful examination of the weight of the other evidence in this case. And you are not to convict upon such testimony alone unless satisfied, after a great careful examination of its truth, that you feel you can safely rely on it. What the law means by corroboration of the testimony of an incentivized witness is not merely the corroboration of the witnesses narrative and the mere details of how the crime was committed, but some real and independent corroboration tending to implicate Defendant in the commission of the offense charged. It is not sufficient to corroborate an incentivized witness as to the facts of the case. Generally, he should be corroborated as to some material fact which tends to prove that the accused was connected with the crime that's charged. In determining the reliability of the testimony of an incentivized witness you should take into account several factors indicating the extent to which his testimony is credible, including: 1) explicit or implied inducements that the witness received, may receive, or will receive; 2) the prior criminal history of the witness; 3) evidence that the witness is a “career informant” who has testified in other criminal cases; and 4) any other factors that might tend to render the witness' testimony unreliable.
Although the defense offered a very detailed jury instruction on the precautions that should usually be taken regarding snitch testimony, the Court declined to give the instruction on the basis that the snitch’s testimony was corroborated. This approach differs from the court in Moore, which ruled that any evidence of a snitch receiving something directly because of his or her testimony made the snitch’s account unreliable.
These differing approaches from Mississippi and Louisiana show that the opinion of the reliability of snitch testimony differs between jurisdictions, and thus the admittance of jury instructions about such reliability varies. As research in the area of wrongful convictions advances, one would hope that courts would continue to take a careful eye to the circumstances surrounding why an inmate chooses to cooperate with the prosecution.
Research Question 3:
What "safeguards" do Missouri courts cite should help protect against faulty eyewitness identification? Do these safeguards actually work?
In State v. Whitmill, the Supreme Court of Missouri cited several safeguards that made sure the jury understood the shakiness of eyewitness testimony. In this case, the defendant was convicted of first-degree assault and armed criminal action. The defendant wanted into introduce the testimony of Alvin Goldstein, a psychology professor from the University of Missouri, who would have testified about “some of the psychological factors affecting the reliability of eyewitness identification, such as stress, anger, and fear. He argued that [one of the witnesses] was in a state of emotional arousal at the time of the shootings and that this excitement affected the accuracy of the impression encoded by his memory as to his assailant's appearance.” The trial court barred the defendant from using Goldstein’s testimony, and the Supreme Court affirmed this decision, stating that the other safeguards in place that were supposed to protect the defendant did an adequate enough job of protecting him.
In regards to these safeguards, the Court explained that the defense had the opportunity to cross-examine both witnesses that claim the defendant was the one who shot them, that the defense counsel had the opportunity of mentioning how unreliable eyewitness testimony is during opening statements and closing arguments, and that the Court gave the jury instructions on the factors it should weigh to determine if the identifications were reliable. In this case, the instructions given to the jury are not listed, and the only one I could find that was relevant and certainly given in this case was MAI-CR 3d 302.01, which only describes how jurors are to take notes on the case at hand.
In my opinion, I do not think the defendant had a fair opportunity to present his evidence about eyewitness testimony reliability via his witness. The safeguard the Court cites regarding to his counsel being able to bring up unreliability in both opening and closing is not sufficient. I think even the most basic juror understands that the opening and closing statements are more of a theatrical summary of the case at hand, and not to be taken as evidence or expert testimony. If the defendant had the opportunity to put on his witness, who was going to show accurate scientific evidence on the stand, this would have at least put the idea in the jurors’ heads that eyewitness identifications are not always reliable. The science was correct, so there are not any Daubert issues here, so I suppose I understand why the Court barred it under the Lawhorn standard in a last-ditch effort to keep the evidence out. In State v. Lawhorn, the Court held that a court may use its discretion in deciding to bar expert witness testimony. The court in Lawhorn decided that it would bar a defendant’s expert witness testimony on cross-racial identifications and how they tend to be inferior to identifications made by witnesses and defendants of the same race. The Court reasoned, “[S]uch matters are within the general realm of common experience of members of a jury and can be evaluated without an expert's assistance.” In my opinion, if jurors do not even know how fallible a police lineup identification could be, such matters would not be within the general realm of their common experience. I do not believe the safeguards worked in this case.