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Eyewitness instruction reduces the risk that the guilty go free

Missouri’s jury instruction on eyewitness evidence, due to take effect Jan. 1, brings our state in line with the U.S. Supreme Court law set out in Perry v. New Hampshire. The Supreme Court in Perry explicitly recognized the value of jury instructions that draw attention to factors which may contribute to the likelihood of misidentification. Missouri’s eyewitness instruction is legally sound and clearly written. It gives guidance to the jury on issues based on years of research by impartial academics critiqued and reviewed in the Report of the National Academy of Sciences, Identifying the Culprit: Assessing Eyewitness Identification, in 2014. An instruction on how to assess eyewitness testimony is a significant step to prevent wrongful convictions that allow real criminals to avoid punishment.

We are confident that Prosecutor Kevin Hillman and his colleagues (“New eyewitness rule would make advocates of judges” Nov. 23 Missouri Lawyers Weekly) would agree that we should be doing everything possible to prevent sending even a single innocent person to prison. However, the problem is more far-reaching than that. The Innocence Project website lists some frightening statistics:

  • There have been 333 post-conviction DNA exonerations in the United States.
  • Eyewitness misidentification testimony was a factor in more than 70 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions.
  • The average length of time served by exonerees was 14 years.
  • 20 of the 333 people exonerated through DNA served time on death row. Another 16 were charged with capital crimes but not sentenced to death.
  • The true suspects and/or perpetrators have been identified in 163 of the DNA exoneration cases. Those actual perpetrators went on to be convicted of 144 additional crimes, including 77 sexual assaults, 34 murders, and 33 other violent crimes while the innocent sat behind bars for their earlier offenses.

Defendants convicted by eyewitness identifications and then exonerated by DNA, as well as an unknown number of innocent defendants for whom DNA was not available, represent Missouri’s past and future if we cannot make cooperative efforts to use more caution with witness identification evidence. Such efforts will involve cooperation and hard work on the part of law enforcement, prosecutors, defense counsel, and judges to ensure that eyewitness identifications are presented with care and evaluated knowledgeably by jurors. Such efforts cannot stop with the implementation of the new jury instruction. Rather, they must include a serious discussion of the inadequacy of witness lineup procedures that contribute to innocent citizens being wrongfully imprisoned while the guilty remain free.

One thing we should avoid in our effort to reduce mistaken convictions is spreading mistaken information. Mr. Hillman opines the information given to jurors in Missouri’s eyewitness instruction requires judges to “…wade into the social science debate on whether eyewitnesses should be trusted” and “…puts the judge on the criminal defense lawyer’s team.” In fact, it does no such thing.

First, as the National Academy of Sciences reports, with the exception of a few factors, there is no “debate” about the ability of a person to remember the face of a stranger and how that memory can be contaminated. “Hundreds of scientific studies (particularly in the last three decades) have affirmed that eyewitness identification is often inaccurate and that it can be made more accurate by implementing specific identification reforms.”

Second, the instruction explicitly tells jurors that “witnesses can and do make accurate identifications,” which undeniably encourages jurors to trust eyewitnesses. Third, an instruction that tells jurors to consider non-biased scientific factors in deciding if a “witness’s identification of the defendant is reliable and believable, or whether it is based on a mistake” does not compromise a judge’s impartiality any more than the judge instructing a juror to take into account a witness’s “manner of testifying,” which Mr. Hillman touts as being sufficient to cover the issue of eyewitness reliability.

Mr. Hillman appears shocked to find that an instruction would “even suggest that witnesses are not reliable when it comes to identifying a criminal of another race.” The instruction does not advise that cross-racial identifications are not reliable across the board. The instruction says “Some people have greater difficulty in accurately identifying members of a different race.” The fact that faces of people of races different from that of an eyewitness are harder to discriminate, and thus harder to identify accurately, has been proven and is well accepted in the scientific community. It is called “own race bias.” This difficulty is frequently present in cases of mistaken identifications; it exists across races, and has nothing to do with racism.

Mr. Hillman states he is concerned that Missouri’s eyewitness instruction inappropriately causes judges to comment on the evidence. His fears are difficult to draw from a fair reading of the instruction. An instruction telling jurors what features can contribute to eyewitness mistakes that go unrecognized by law enforcement might feel threatening to prosecutors who rely on the police to conclude they caught the right culprit. However, another way to view the instruction is that it will help convince a jury to convict in most cases where the police gather, and prosecutors handle, eyewitness evidence in a way that complies with best practices. Prosecutors can thereby use the instruction to demonstrate that their conclusion about a defendant is reliable because they have attended to the factors described in the instruction.

Juror evaluation of eyewitness testimony is too important to be left solely to “criminal defense lawyers’ closing arguments” (one of Mr. Hillman’s recommendations) or jurors’ erroneous notions of what makes such testimony reliable. Justice demands an instruction that properly guides the jury and MAI 310.02 is such an instruction.

Carl Ward is president of the Missouri Association of Criminal Defense Lawyers. Kevin Curran is a past president of the association.