Thursday, February 19, 2009

Westchester Guardian/Jeffrey Deskovic.

Jeff Deskovic.

Reviewing New York State Bar Association’s Preliminary
Report On Wrongful Convictions in New York, Part 1

The New York State Bar Association recently issued a preliminary report on wrongful convictions in New York analyzing what the causes
of wrongful convictions are, what reforms are needed in light of what they tabulate as 53 wrongful convictions in New York, which they define
by saying that they “do not express an opinion that all 53 exonerees were actually innocent. “However,” they further declare, “While some individuals may not have been, in fact, innocent, in all these cases the criminal justice system broke down to the degree that a conviction was wrongly obtained.”

This article will review some provisions that the report offers and, as a criminal justice advocate, give my views with respect to them. Because much of it is written in language similar to the way that Criminal Procedure Law is written, I will translate where necessary to facilitate understanding before stating my own views. e report itself, with all of its appendices, is 184 pages long.

In this article with limited space, I will attempt to review some of their more relevant points. However, I encourage those who are interested to
view the original document online at

The last thing that I would like to say is that as someone who researches wrongful convictions, attempts to keep abreast in the field, and occasionally writes memos, I fully appreciate the level of work and research that went into the document, and I consider it to be of tremendous value and a very positive tool for those who are interested in learning more about wrongful convictions, as well as for those who are working to effect change, both amongst the advocates working on policy issues as well as public officeholders. I cannot say enough good things about it, though I do not agree with everything in it. The beginning of the report sets the tone for the rest for the document as follows: “When Bernice Leber assumed the presidency of the New York State Bar Association on June 2, 2008, she immediately recognized the need to study the root causes of wrongful convictions in New York and to promulgate any changes necessary to insure that only the guilty are convicted. She stated,
‘[f]or each wrongful conviction that surfaces, how many others are still unfairly resolved? Ensuring the fair administration of justice must be the
number one priority in our criminal justice system. As leaders of the profession, we have a responsibility to do everything we can to protect the innocent and make sure men and women are not punished – not even for even one day – for crimes they did not commit.’ ” Based upon this, she ordered that studies be undertaken and a report issued.

The Mission Statement of the document is as follows: “The number of exonerations in New York undermines the assumption that the criminal
justice system sufficiently protects the innocent. Many of the exonerations do not involve DNA evidence. The consequences are far-reaching,
considering, among other things, the lengthy incarcerations some defendants have experienced. The Task Force is charged with identifying the
causes for wrongful convictions, and to attempt to eliminate them. The Task Force shall identify all of the causes of the wrongful convictions and isolate the systemic causes that produced these injustices. The Task Force shall focus on current rules, procedures and statutes that were implicated in each case and propose solutions in the form of procedural changes and legislation. The Task Force shall provide opportunities to educate the profession and the public on the causes of these erroneous convictions with the aim of ensuring that our laws, policies and practices are designed to reduce the risk of convicting the innocent and increasing the likelihood of convicting the guilty. In addition, the Task Force shall review and report on the current remedies/compensation available to those wrongly convicted and propose reforms, where appropriate.”


Identification Reforms

Note: Misidentification is the leading cause of wrongful convictions, accounting for 75% of the nations 232 DNA proven wrongful convictions, and in 12 of New York’s 24 DNA proven exonerations.


Change the Way in Which Identification Procedures (Including Lineups and Photo Arrays) Are
Conducted to Enhance the Reliability of Eyewitness Identifications

A) Double blind administration - The administration of the identification procedure should be performed by persons who do not know the
identity of the suspect.

b. B) Cautionary instructions - Eyewitnesses should be told that individuals administering the identification procedure do not know who the suspect is and told that the perpetrator may or may not be present.

C). Effective use of fillers - At least five fillers should be used. If practicable, fillers should be matched to the eyewitness’ description of the
suspect, but at the same time the suspect should not stand out as being different from the fillers.

D). One suspect per lineup.

E) . Sequential presentation of identification procedures - There is evidence that sequential and double-blind identification procedures result in a reduction in “false positive” results,

F) Videotaping the procedure - Where the identification procedure is a police arranged procedure such as a lineup or photographic array,
the entire identification procedure should be videotaped with enough cameras with audio to capture the witness, administrator and members
of the lineup or photo array.

Evidence of Photographic
Identifications Should Be
Admitted At Trial

If they Are Properly Documented by Video Recording and If they Are Conducted in Accordance With the Proposed Improvements to Identification Procedure (i.e., Double-Blind; One Suspect Per Procedure; Cautionary Instructions Provided to the Eyewitness; Effective
Use of Fillers; One Suspect Per Procedure)

Failure to Comply With the Proposed Reforms to Identification Procedures Should Be Considered By the Trial Court As A Factor in
Determining Whether Evidence of the Eyewitness Identification Should Be Admitted at Trial.

Allow Expert Testimony on Eyewitness Identifications At Trial

- An expert should be permitted to testify as to the scientific research surrounding identification procedures, including their administration,
reliability and the nature of human memory, in any case where identification is an issue and where such testimony is relevant. In the
event that prosecutors or defense attorneys lack the resources to hire an expert on eyewitness identifications, funds should be provided to both prosecutors and defense attorneys to permit the hiring of these kinds of experts.

Provide Jury Instructions on Eyewitness Identifications

- Jury instructions should be provided so that at the time of deliberations, the jury is aware of any potential unreliability in the eyewitness
identification. Through jury instructions, jurors should be made aware of the factors to consider in evaluating the reliability of an eyewitness
identification. Specifically, in any case where an eyewitness identification procedure is not conducted in accordance with the improved procedures outlined here (i.e., double-blind; one suspect per procedure; cautionary instructions provided to the eyewitness; effective use of fillers; one suspect per procedure), jurors should be instructed that they may consider the failure to implement the procedure as a factor in accepting or rejecting the identification. Jurors should likewise be instructed that they may consider law enforcement’s failure to properly document the identification procedure when deciding whether to accept or reject the in-court identification


Firstly, better procedures for ensuring the accuracy of an identification are proposed. If those procedures are not employed, the court must then consider that fact in deciding whether to allow the identification to come into evidence. If the judge decides to admit the eyewitness
identification even though the recommended procedures were not utilized, the jury will be given instructions to take into account the
fact that the most accurate procedures were not used and an expert will be allowed to testify.


The procedures the committee suggests are the same as those that are pretty much universally advocated by most in the wrongful conviction
movement. Considering that these are supported by scientific research, I agree with the procedures. However, they leave out an important step, taking victim confidence statements; asking a victim, “On a scale of 1 to 10, how confident are you of your identification?”

The proposal to have a judge take into account a failure to follow best practices in deciding to allow testimony in is a good one, as is the proposed curative instructions, which I see as both a motivation to prosecutors and police to conduct proper lineup procedures in order to ensure accuracy, as well as in an effort to get juries focused on important factors to weigh while assessing the credibility of an identification
that was obtained without using the most accurate procedures. Although I believe that these suggestions would help improve matters, I take a somewhat different view as to what needs to be done. I don’t think that these remedies are necessarily the strongest ones that are available. Given that misidentification has caused 75% of the nation’s 232 DNA-proven wrongful convictions, and that defendants often spend decades of their lives in prison before being proven innocent, I believe that the time for pussyfooting around has long since past. I believe that authorities should be educated on the danger that misidentification poses, and taught the new procedures, and then made to comply with them by the court.

The idea of allowing an eyewitness identification expert to testify is a good one which will give jurors more general background knowledge.
They should be allowed to testify as to general information about misidentification.

Jail House Informants

Incentivized witnessing, which I have previously written about, is de-fined as when a witness has been given a reward in exchange for testifying, including having charges dismissed and/or receiving a lesser sentence, or a financial reward, has been a cause of wrongful convictions in 15% of the nations 232 DNA proven wrongful convictions. In New York, it contributed to 5 of New York’s 24 DNA proven
wrongful convictions, thus far.


1. Any Informant’s Testimony Should Be Corroborated (The Corroboration Requirement for the Use of Accomplice Testimony Should Be
Extended to Non-Accomplice Informants)

2. The Jury Should Be Instructed to Consider Several Factors Indicating the Extent to Which the Testimony is Credible, Including: (i)
Any Explicit or Implied Inducements that the Informant May Have Received or Will Receive; (ii) the Prior Criminal History of the Informant; (iii) Evidence That He or She is a “Career Informant” Who Has Testified in Other Criminal Cases; and (iv) Any Other Factors That Might Tend to Render the Witnesses’ Testimony Unreliable

3. The Court Should Conduct a Pre-Trial Reliability Hearing with Respect to the Testimony of Informants

4. When the Court Finds the Need to Protect the Identity of an Informant Compelling, It Should Conduct an In Camera Review of the Information Relating to the Informant’s Credibility, and Provide the Defense With All Such Information As May be Provided Without Disclosing the Informant’s Identity

5. A Videotape Recording, When Possible, Should be Made of Any Informant’s Statement Given to Any Law Enforcement
Agent or Prosecutor 6. The Prosecution Should Develop “Best Practices” That Check the Reliability of Informant Testimony


In view of the danger of wrongful conviction based upon testimony from jailhouse informants, the report seeks to implement some protections in an effort to prevent that. Those protections include:

A) that defendants should not be convicted based solely on an informant’s word, but instead that their testimony must have some other evidence to prove it’s truthfulness;

B) The judge must evaluate the informant’s testimony at a pretrial hearing for the purpose of determining whether they are believable,
before allowing such evidence to be used at a trial;

C) Juries will be told that they must take into account various factors which may make an informant’s testimony unreliable;

D) Informant’s statements must be videotaped; and,

E) Prosecutors must have a system in place to ensure that informants are testifying truthfully.


The reforms seek to place the emphasis on ensuring that only truthful testimony is obtained from informants. As such, it would make
the system more reliable. Nonetheless, I believe that criminal justice would be more accurate if the practice of giving witnesses rewards were
to cease altogether. In my view, a witness to a crime should come forward on a moral basis, and not because they stand to profit. Despite the procedure suggested, to have a judge evaluate an informant’s credibility before allowing it to be introduced to a jury, given many trial judges’
failure to prevent wrongful convictions in other areas, such as pre-trial hearings designed to prevent the admission of unreliable eyewitness
testimony and coerced confessions, I don’t believe that this procedure will be very effective.

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