PUBLISHER'S NOTE: I am interested in eye-witness identification issues because of wrongful identifications are at the heart of so many exonerations in the USA and elsewhere - and because so much scientific research is being conducted with a goal to making the identification process more accurate.
PASSAGE OF THE DAY: "The task force’s findings, which appear in the fall 2019 volume of Temple Law Review, offer a snapshot of the criminal legal system’s chronic over-reliance on eyewitness accounts. As the report notes, mistaken identifications have been involved in nearly 70 percent of post-conviction exonerations based on DNA evidence. In 2012, Supreme Court Justice Sonia Sotomayor called eyewitness evidence “a unique threat to the fairness of trial,” citing research showing that misidentifications are the “single greatest cause” of wrongful convictions in America."
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SUB-HEADING: "Mistaken identifications have been involved in nearly 70 percent of post-conviction exonerations based on DNA evidence."
GIST: "Police
lineups and photo arrays are mainstays of shows like “Law and Order,”
which portray them as time-honored investigative techniques that confirm
the results of diligent detective work. But the story of Ronald Cotton,
featured on a 2009 episode of “60 Minutes,” is one of several cautionary tales discussed in a report on the inherent unreliability
of eyewitness identification procedures. The report was commissioned in
2016 by the U.S. Court of Appeals for the Third Circuit—which, as its
authors note, is the first federal court to formally tackle the
subject. The task force’s findings, which appear
in the fall 2019 volume of Temple Law Review, offer a snapshot of the
criminal legal system’s chronic over-reliance on eyewitness accounts. As
the report notes, mistaken identifications have been involved in nearly
70 percent of post-conviction exonerations based on DNA evidence. In
2012, Supreme Court Justice Sonia Sotomayor called
eyewitness evidence “a unique threat to the fairness of trial,” citing
research showing that misidentifications are the “single greatest cause”
of wrongful convictions in America.Several
days after she identified Cotton as her attacker in the photo array,
Thompson-Cannino picked him out of a live lineup, too. Again, though,
she hesitated, telling the detective administering the procedure that
Cotton “look[ed] the most like” her rapist. Again, he asked if she was
certain, and again, she replied that she was. The detective then
revealed that Cotton was the same man whose photo she had selected
previously, which allowed her to feel, as she later put it to PBS’s “Frontline,” “a huge amount of relief.” She had gotten it right, and would get the justice she deserved. For this
and another assault that took place that same night, Cotton was found
guilty and ultimately sentenced to a pair of life sentences plus 54
years in prison. He would serve more than 10 years before modern DNA
testing confirmed his innocence—and the guilt of Bobby Poole, who was
already incarcerated alongside Cotton for a separate series of rapes in
the area.........
There are simple strategies available to law enforcement for minimizing the risks of these errors, and the report goes through them in detail: For example, whenever possible, police should conduct double-blind lineups and photo arrays, where neither the witness nor the officer administering the procedure knows who the suspect is. If double-blind procedures are impractical—for example, in smaller departments where everyone knows the suspect’s identity—officers can at least use “blinded” techniques, in which the officer cannot see which suspect or suspects the witness is viewing at any given moment. So-called filler lineup participants—the people asked to stand next to a suspect in a lineup—should match the elements of the witness’s description of the perpetrator, and not merely look similar to the suspect. The authors also caution against giving witnesses books of mugshots to browse, a practice that may result in witnesses over-committing to their initial identification and being less reliable during subsequent attempts. In 2001, New Jersey Attorney General John Farmer ordered law enforcement agencies to do away with “mugshot-searching” altogether and instead present witnesses with sequential, one-at-a-time lineups. The move, prompted by a U.S. Department of Justice report published two years earlier, made New Jersey the first state to embrace such a shift based on the evolving understanding of memory science. Using standardized instructions can reduce the likelihood of tainting the proceedings, too. The report suggests that police issue a series of caveats and reminders before each identification attempt: that the suspect “may or may not be present,” for example, and that “it is just as important to free innocent people from suspicion as it is to identify the guilty.” In 2007, lawmakers in North Carolina passed the Eyewitness Identification Reform Act in an effort to modernize identification procedures throughout the state. The act prescribes a set of initial instructions to be given to witnesses, and requires that law enforcement either conduct identifications using independent administrators who are not involved with the case, or use blinding techniques that prevent administrators from knowing whose face the witness is looking at. Once the witness has made an identification, the report’s authors add, police should take one final, critical step: Immediately ask witnesses for a self-assessment of their confidence, and record it without comment. Detectives should also refrain from giving any sort of suggestive feedback, even after the attempt is ostensibly “complete.” No matter what evidence later comes to light, it can be difficult to convince a witness who saw a detective pump his fist in triumph that the answer they gave was anything other than the right one."
The entire story can be read at:https://theappeal.org/witness-identifications-wrongful-convictions/?utm_source=The+Appeal&utm_campaign=335e2c3332-EMAIL_CAMPAIGN_2018_08_09_04_14_COPY_01&utm_medium=email&utm_term=0_72df992d84-335e2c3332-58434439
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Read the National Registry of Exonerations entry on Ronald Cotton (prepared by The Innocence Project) at the link below:
"In July 1984, an assailant broke into Jennifer Thompson-Cannino’s apartment and sexually assaulted her; later that night, the assailant broke into another apartment and sexually assaulted a second woman.
The evidence at trial included a flashlight found in Cotton’s home that resembled one used by the assailant and rubber from Cotton’s shoe that was consistent with rubber found at one of the crime scenes, but overwhelmingly the evidence rested on the identification and the flawed eyewitness identification procedures used by police at the time.
In January 1985, Cotton was convicted by a jury of one count of rape and one count of burglary. In a second trial, in November 1987, Cotton was convicted of both rapes and two counts of burglary. He was sentenced to life in prison plus fifty-four years.
Cotton was unsuccessful overturning his conviction in several appeals. But in the spring of 1995, his case was given a major break: the Burlington Police Department turned over all evidence, which included the assailant’s semen for DNA testing, to the defense.
The samples from one victim were tested and showed no match to Cotton. At the defense’s request, the results were sent to the State Bureau of Investigation’s DNA database and the database showed a match with the convict who had earlier confessed to the crime to a fellow inmate in prison.
When the DNA test results were reported in May 1995, the district attorney and the defense motioned to dismiss all charges. On June 30, 1995, Cotton was officially cleared of all charges and released from prison. In July 1995, the governor of North Carolina officially pardoned Cotton. Cotton had served 10.5 years in prison.
Soon after his release, Cotton got a job in the warehouse of LabCorp, the company that tested the DNA evidence that proved his innocence. He also married, had a child, and bought a piece of land to live on. He received $110,000 from the state for his wrongful conviction.
Thompson-Cannino and Cotton met for the first time after his exoneration. They became good friends and travel around the country working to spread the word about wrongful convictions and reforms – especially for eyewitness identification procedures – that can prevent future injustice. They co-authored a book: Picking Cotton.
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3124
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There are simple strategies available to law enforcement for minimizing the risks of these errors, and the report goes through them in detail: For example, whenever possible, police should conduct double-blind lineups and photo arrays, where neither the witness nor the officer administering the procedure knows who the suspect is. If double-blind procedures are impractical—for example, in smaller departments where everyone knows the suspect’s identity—officers can at least use “blinded” techniques, in which the officer cannot see which suspect or suspects the witness is viewing at any given moment. So-called filler lineup participants—the people asked to stand next to a suspect in a lineup—should match the elements of the witness’s description of the perpetrator, and not merely look similar to the suspect. The authors also caution against giving witnesses books of mugshots to browse, a practice that may result in witnesses over-committing to their initial identification and being less reliable during subsequent attempts. In 2001, New Jersey Attorney General John Farmer ordered law enforcement agencies to do away with “mugshot-searching” altogether and instead present witnesses with sequential, one-at-a-time lineups. The move, prompted by a U.S. Department of Justice report published two years earlier, made New Jersey the first state to embrace such a shift based on the evolving understanding of memory science. Using standardized instructions can reduce the likelihood of tainting the proceedings, too. The report suggests that police issue a series of caveats and reminders before each identification attempt: that the suspect “may or may not be present,” for example, and that “it is just as important to free innocent people from suspicion as it is to identify the guilty.” In 2007, lawmakers in North Carolina passed the Eyewitness Identification Reform Act in an effort to modernize identification procedures throughout the state. The act prescribes a set of initial instructions to be given to witnesses, and requires that law enforcement either conduct identifications using independent administrators who are not involved with the case, or use blinding techniques that prevent administrators from knowing whose face the witness is looking at. Once the witness has made an identification, the report’s authors add, police should take one final, critical step: Immediately ask witnesses for a self-assessment of their confidence, and record it without comment. Detectives should also refrain from giving any sort of suggestive feedback, even after the attempt is ostensibly “complete.” No matter what evidence later comes to light, it can be difficult to convince a witness who saw a detective pump his fist in triumph that the answer they gave was anything other than the right one."
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Read the National Registry of Exonerations entry on Ronald Cotton (prepared by The Innocence Project) at the link below:
"In July 1984, an assailant broke into Jennifer Thompson-Cannino’s apartment and sexually assaulted her; later that night, the assailant broke into another apartment and sexually assaulted a second woman.
The evidence at trial included a flashlight found in Cotton’s home that resembled one used by the assailant and rubber from Cotton’s shoe that was consistent with rubber found at one of the crime scenes, but overwhelmingly the evidence rested on the identification and the flawed eyewitness identification procedures used by police at the time.
In January 1985, Cotton was convicted by a jury of one count of rape and one count of burglary. In a second trial, in November 1987, Cotton was convicted of both rapes and two counts of burglary. He was sentenced to life in prison plus fifty-four years.
Cotton was unsuccessful overturning his conviction in several appeals. But in the spring of 1995, his case was given a major break: the Burlington Police Department turned over all evidence, which included the assailant’s semen for DNA testing, to the defense.
The samples from one victim were tested and showed no match to Cotton. At the defense’s request, the results were sent to the State Bureau of Investigation’s DNA database and the database showed a match with the convict who had earlier confessed to the crime to a fellow inmate in prison.
When the DNA test results were reported in May 1995, the district attorney and the defense motioned to dismiss all charges. On June 30, 1995, Cotton was officially cleared of all charges and released from prison. In July 1995, the governor of North Carolina officially pardoned Cotton. Cotton had served 10.5 years in prison.
Soon after his release, Cotton got a job in the warehouse of LabCorp, the company that tested the DNA evidence that proved his innocence. He also married, had a child, and bought a piece of land to live on. He received $110,000 from the state for his wrongful conviction.
Thompson-Cannino and Cotton met for the first time after his exoneration. They became good friends and travel around the country working to spread the word about wrongful convictions and reforms – especially for eyewitness identification procedures – that can prevent future injustice. They co-authored a book: Picking Cotton.
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PUBLISHER'S
NOTE: I am monitoring this case/issue. Keep your eye on the Charles
Smith Blog for reports on developments. The Toronto Star, my previous
employer for more than twenty incredible years, has put considerable
effort into exposing the harm caused by Dr. Charles Smith and his
protectors - and into pushing for reform of Ontario's forensic pediatric
pathology system. The Star has a "topic" section which focuses on
recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL
WORD: (Applicable to all of our wrongful conviction cases): "Whenever
there is a wrongful conviction, it exposes errors in our criminal legal
system, and we hope that this case — and lessons from it — can prevent
future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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