California leads the nation in wrongful convictions, according to a 2012 study, but it trails many states, particularly New Jersey, in safeguards and best practices aimed at reducing critical areas where wrongful convictions are likely to occur.
For instance, in 2011 the New Jersey Supreme Court made a ruling that was aimed at resolving what they called the “troubling lack of reliability in eyewitness identifications.” A year later, for the first time, the New Jersey courts are having judges instruct jurors in order to improve their evaluation of eyewitness identification.
The Innocence Project has identified eyewitness misidentification as the single greatest cause of wrongful convictions nationwide, contributing to nearly 75 percent of the wrongful convictions overturned by DNA evidence.
However, while states like New Jersey and even Texas have made progress in adopting best practices to reduce wrongful convictions, California is lagging behind.
That could change if recently introduced legislation by Assemblymember Tom Ammiano, AB 604, becomes law. The bill would promote the use of research-proven witness identification procedures to reduce the incidence of wrongful convictions.
“Prosecutors and police investigators are often under pressure to identify a culprit. It’s important to make sure they identify the right person,” Assemblymember Ammiano said in a press release.
“There is research that has shown that police can improve the reliability of their investigation, so the bill rewards the techniques that would help like the double-blind administration,” Assemblymember Tom Ammiano told the Vanguard in a phone interview on Thursday afternoon.
“When a trial introduces witness identification that took place before the trial the bill would say that the judge must give the jury an instruction indicating that certain techniques provide better results in reliability and that jurors can take that into account when deciding on the reliability of the ID,” he said.
The bill requires trial judges to give juries instructions about witness identification procedures. The instruction would tell jurors they could take into account the way in which identification took place, and whether it met certain criteria. The presence of that instruction would create an incentive for investigators to use more careful procedures.
Among the procedures that improve the quality of identification are sequential presentation of photo lineups (as opposed to showing all photos at one time) and having double-blind administration, in which a party not directly involved in the case administers the lineup presentation.
“It’s a very simple thing and if this bill is signed by the Governor, I feel confident that while it’s not a panacea for wrongful convictions, I feel like it will sensitize the criminal justice system and also have an impact on the sentencing of an individual. It gives the judge and jury a little more flexibility,” the Assemblymember said on Thursday. “It will recommend that these techniques have or have not been used and allow the jury to take that into consideration.”
According to the bill, “In any criminal trial or proceeding in which a witness testifies to an identification made before trial, either by viewing photographs or in person lineups,” the court would issue an instruction to the jury.
The instruction would read: “The procedures listed in Section 683.3 of the Penal Code increase the reliability of eyewitness identifications. As jurors, you may consider evidence that police officers did or did not follow those procedures when you decide whether a witness in this case was correct or mistaken in identifying the defendant as the perpetrator of the crime.”
The jury would be further instructed, “If police officers did not follow the procedures recommended in Section 683.3 of the Penal Code, you may view the eyewitness identification with caution and close scrutiny. This does not mean that you may arbitrarily disregard his or her testimony, but you should give it the weight you think it deserves in the light of all the evidence in the case.”
One of the cases that drew the assemblymember’s attention is the case of Ronald Ross.
“The case of Ronald Ross shows that shoddy witness identification has horrible consequences,” Assemblymember Ammiano said.
Ronald Ross is due to be released from prison this month after spending years in state prison on the basis of a wrong identification. Following efforts by the Northern California Innocence Project, prosecutors in Alameda County have said they will ask a judge to release Ross, who was convicted of attempted murder in a 2006 shooting.
According to a release from the Innocence Project, “Alameda County prosecutors conceded that the conviction of Ronald Ross, 51, should be reversed based on new evidence of his innocence.”
In 2006, Mr. Ross was convicted of attempted murder and assault with a firearm and sentenced to twenty-five years to life, which he was serving at San Quentin State Prison.
On April 15, 2006, Renardo Williams was shot in front of his Oakland, CA apartment building. Three days later, while in the hospital, Mr. Williams picked Ronald Ross out of a six-pack lineup as the shooter.
Mr. Ross was included only because his mother lived in the same building as a family who was in a dispute with Williams at the time. The only other eyewitnesses were two 14-year-old boys.
“However, while this seemed like a strong conviction at the time, Ross’ attorneys found that the evidence was not only faulty but full of lies,” the Innocence Project reported.
Renardo Williams admitted to Ross’ attorneys that the real shooter was a man named Steven Embrey. A day before the shooting, Mr. Williams had beaten Mr. Embrey’s son with a stick. Mr. Embrey’s son was one of those 14-year-old eyewitnesses that identified Ross.
Mr. Williams said he identified Ross because of police pressure and fear of retaliation from Mr. Embrey.
“They never investigated the dad,” said Elliot Peters, one of Ross’ attorneys. “They never put him in a photo spread. We don’t know why.”
“The injustice to Ronald Ross was not the only terrible result in the Alameda County case,” Assemblymember Ammiano said. “There was also the fact that the true culprit went free and committed other crimes because police stopped looking for him. This bill will reduce the chances of both of those problems.”
In Ronald Ross’ case, there was not double-blind administration. As a result, the victim was reportedly pressured to make the identification of Ross as the shooter. The actual culprit was not included in the lineup.
Efforts like Assemblymember Tom Ammiano’s have not been successful in the past.
Assemblymember Ammiano indicated that the governor has been “mum” about whether he would support this measure. In a previous effort to get this legislation passed, “the Governor’s office came up with a couple of concerns with regards to data.” The assemblymember believes that they have addressed most of those concerns in this round.
One area of opposition will come from the State Organization of District Attorneys. Assemblymember Ammiano believes that the statewide organization will oppose the measure, but that individual DA’s, like his local San Francisco DA, will support it.
“It’s not monolithic in terms of pushback,” he said. “The bill makes a lot of sense, some of these practices have been going on for years. This is a way to modernize and also serve as a better template for the unbiased verdicts and justice.”
“It’s one thing to identify someone because you think that’s the person,” Assemblymember Ammiano said, “but if the context is in and of itself confusing or in other ways not fair, most people would tend to want to change that situation.”
The bill is sponsored by the ACLU of California, the California Public Defenders Association and the Northern California Innocence Project.
—David M. Greenwald reporting
Finally. It’s a shame this legislation can’t give the wrongfully convicted their lives back: all the years they spent behind bars for a crime they did not commit. It’s also a shame they can’t get their money back: their attorney’s fees. And their reputation, too.
I guess everyone is okay with this. Bet Reisig will not support this legislation though.
This sounds like a good idea. The prosecutorial end should work towards limiting wrongful convictions. Unfortunately noting is full proof. The new procedure would not have worked in the Ronald Ross case.
[quote]”However, while this seemed like a strong conviction at the time, Ross’ attorneys found that the evidence was not only faulty but full of lies,” the Innocence Project reported.[/quote] True
[quote]Mr. Williams said he identified Ross because of police pressure and fear of retaliation from Mr. Embrey.[/quote]
Based on the article the lie came form the victim in this case. If you have a witness who will intentionally falsely identify a suspect how will the sequential double blind identification technique improve the process?
I see how it could help in other cases but not this one.
You raise a good point, but as I understand it, the double blind identification might have prevented that because the claim here is that the witness was pressured into that identification. In a double blind process, the officer who administers the process would not know who the target was and therefore would not pressure the witness into the false identification.
At least this is a start in changing a system that is rigged against a defendant at every phase. Hopefully more can be done to make sure juries realize what happens on TV crime shows isn’t based in reality.
[quote]You raise a good point, but as I understand it, the double blind identification might have prevented that because the claim here is that the witness was pressured into that identification. In a double blind process, the officer who administers the process would not know who the target was and therefore would not pressure the witness into the false identification.[/quote]
I’ve read several articles from various news sources and the only person who claimed the police pressured an identification was Williams. He admitted that he intentionally ID the wrong person because he was scared of the real suspect. If I was Williams I would also be looking for ways to minimize my responsibility in intentionally falsely identifying someone and depriving them from their freedom. I wouldn’t want that civil liability either. So far in the reading I’ve done the misconduct here seems to be on Williams and the two witnesses.
I won’t say a double blind ID wouldn’t have helped but you had three people identify Ross before and during the trial. This is a horrible case that could have been avoided if the witnesses had been honest. Don’t forget you have one witness that was later proven not to have been able to see the shooting. I’m glad Ross was finally afforded Justice. To bad Williams didn’t exercise his freedom to be honest earlier.
Good article David; the proposed legislation seems like a good idea.
With modern very-high resolution photography; this should help in mis-identifications too.
Do arrested suspects routinely get photographed immediately after brought to the station for booking?
This would help in suspect attempting to change their appearance (haircut, facial hair status; hair color; tatoos etc.). Of course if the arrest occurs long after the crime; they may have already modified their appearance.
I’ve seen a few cop shows and the photo lineup is generally done before an arrest is made. The line up is used to identify a suspect. The police place a suspect in the one of the slots and the victim or witness picks the suspect or doesn’t identify anyone. Photo line up are use to assist with the establishment of probable cause for an arrest.
It would be out of the ordinary to conduct a photo line up for someone who is already in custody, unless you are showing it to witnesses and victims who are found later in the investigation. Thanks CSI.
CSI is fiction. Every attorney whether defense or prosecutor will invariably tell that to jurors. I am a retired defense attorney. I worked for more than 30 years. I can tell you IDs happen both before and after arrests. Often they’ll arrest their suspect and then they will bring the witness down to make an ID.
None of the cases listed by the Innocence Project or highlighted by the Vanguard, related to this topic, have been cases where the suspect was arrested before a positive identification was made. I could see how a suspect could be arrested after initial identification and subsequent identification by other involved parties were made post arrest.
My interpretation of Siegel’s post is he is talking about an infield show up. If you are talking about something else or some other procedure please explain. I’d like to know.
Thanks for clarification on timing of photo and suspect ID.
I guess when trying to determine identity of suspect prior to arrest, a drivers license ID photo of the suspect is used? I know people who do not closely resemble their drivers license photo; particularly if it is more than a year or two old. Lately I’ve gotton a few dubious looks when asked to show my drivers license ID; since my hair was much longer a few years ago when I had my drivers license photo taken. Also can be changes in facial hair (hopefully not for women), hair color, blemishes or suntans that come and go; weight gain or loss; etc.
this legislation, another which gives minors convicted of life crimes the right to parole hearings at a time in the future (currently in many of our views too long in the future especially in non homicide cases) and some thought to legislation on the taking of confessions espeically when confessions are coupled with eye witness identifications (2 people ided you in the robbery, confess and we can help you) are the most important legisation that can be proposed and hopefully passed. As to California leading the country on wrongful convictions i wonder. we have a strong and supported public defender and appealte system here lacking in many other states. those states may simply have much higher wrongful conviction rates never explored adequately by underpaid and overworked trial lawyers and little or no appealate review.