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Prosecutors balk at curbing eyewitness identifications

November 2, 2016

Indiana public defenders contend they are proposing a new court rule in order to ensure law enforcement follows best practices when asking individuals to pick out a suspect from a lineup or photo, but prosecutors believe their counterparts are trying to stop eyewitness identification altogether.

The Indiana Public Defender Council presented its proposed Evidence Rule 618 to the Indiana Supreme Court Committee on Rules of Practice and Procedure Oct. 21. Proponents and opponents of the rule testified during a meeting that was closed to the public.

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Afterward, IPDC Executive Director Larry Landis said the rule was needed to prevent wrongful convictions. He pointed to statistics from the Innocence Project that cite eyewitness misidentification as the leading cause of putting the wrong person in jail. According to the national organization, of the 347 people to date who have been exonerated by DNA evidence, 70 percent were convicted primarily on the basis of eyewitness misidentification.

However, Indiana Prosecuting Attorneys Council Executive Director David Powell said the rule as drafted is “horribly written” and “impossible to comply with.” He asserted that caselaw already dictates what police should do to make sure the eyewitness testimony is trustworthy.

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“This rule as written is meant just to keep eyewitness testimony from being used,” he said.

As drafted, Evidence Rule 618 is 14 pages and sets forth detailed processes for law enforcement to follow when questioning people who have witnessed a crime. In particular, it requires that all suspects in a lineup resemble each other and that the eyewitness be asked to identify the suspect from a group rather than being shown only one photo. Also, the officer conducting the identification should not be involved in the investigation nor know if the person believed to have committed the crime is included in the lineup or photo array.

In addition, the rule provides jury instructions for when the state presents evidence of an eyewitness identification.

The proposed rule is based on similar reforms adopted in about 14 other states. Most have passed statutes establishing procedures for soliciting eyewitness identification, but New Jersey implemented its policy through a court rule in 2011.

In Indiana, the Public Defender Council opted to push for a court rule because of the technical nature of the proposal. The council is more confident the rule will get through the Supreme Court intact rather than the Legislature, where only a few members are lawyers who understand court procedure.

“The rules committee has more lawyers than all of the House (of Representatives),” Landis said.

Landis emphasized the proposed rule was not designed to let the guilty go free, but to make sure the identification is correct so police find and prosecutors convict the true perpetrator. Eyewitnesses are not infallible, he said, and they can be “100 percent convinced they’re right even if they’re 100 percent wrong.”

Powell asserted the rule is unnecessary. Along with caselaw that outlines a procedure and policy for what prosecutors have to do to use eyewitness testimony, forensic science is now available to link offenders to the criminal act.

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Fran Watson, director of the Wrongful Conviction Clinic at Indiana University Robert H. McKinney School of Law, refuted those arguments.

The proposed rule just codifies caselaw so judges and attorneys do not have to read through all previous opinions. “It guides the players in the game,” Watson explained. “… Isn’t that progress to get all the parties on the same page?”

As for advances in science, she noted many crimes, such as robberies and burglaries, cannot be solved forensically. Offenders do not always leave their DNA behind.

Moreover, Landis and Watson each said countering eyewitness testimony at trial can be difficult because a defendant could risk alienating the jury. And convictions based on eyewitness identification can be very difficult to get overturned at the appellate level because courts do not always agree that the misidentification caused harm.

Watson pointed to her client Darryl Pinkins as an example. He was exonerated in April by DNA evidence that proved his innocence 25 years after he was convicted of rape. However, he had filed for post-conviction relief in 2003, arguing, in part, his attorney failed to object when the victim identified him after seeing him in court. The Indiana Court of Appeals denied the petition, finding the defendant could not show the objection would have been sustained because the evidence did not indicate uncharged crimes or prior bad acts.

Powell is also concerned the ambiguities of the language will make the rule very difficult to implement. As an example, he highlighted the provision that requires the suspects to resemble their appearance at the time of the alleged offense and questioned how to comply if the suspect was caught several years after the offense.

Landis emphasized the proposed rule is a draft and changes can be made. “If we can improve the rule, let’s do it,” he said.•

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