Eyewitness Identification Reform; the high cost of doing nothing

04/12/11 Lisa Marzilli
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Last week The Innocence Project of Florida celebrated another victory with the exoneration of Derrick Williams, a Manatee County man who had served 18 years of a life sentence for a rape that he did not commit. Williams is one of 13 innocent men in Florida who have been exonerated by DNA so far, but not before spending a total of more than 250 years in prison. This disturbing statistic has prompted state legislators from both sides of the aisle to call for reform of the eyewitness identification process.

"...the quirks in our system that cause people so much pain and suffering when they're incarcerated unjustifiably; we could correct some of this, and that which we can correct, we should."

Representative Perry Thurston is a Broward County democrat who is cosponsoring a bill (HB 821) in the Florida House aimed at reforming the way police conduct eyewitness identifications. The Eyewitness Identification Reform Act is the companion to a Senate bill sponsored by Republican Joe Negron, who sits on the newly formed Innocence Commission.

Over 75 percent of the 268 national exoneration cases, as well as the 13 here in Florida, were in some part, the result of mistaken identification according to the Innocence Project. Seth Miller is Executive Director of the Florida chapter which works to free the wrongly convicted, including the most recent, Derrick Williams. Miller says the process can be made more accurate by implementing some pretty simple reforms, beginning with the way photos are presented to an eyewitness.

"Right now the way lineups are done is they're done in a simultaneous way, pictures are shown all at the same time which doesn't really allow for the witness to make an accurate identification. What they end up doing is looking at all of the pictures together and picking the one that looks most like the person that they saw. We want them to be shown sequentially because what that'll do is mean they'll have to look at each person and run it against what they remember as opposed to what they're seeing in the other pictures."

Miller says whatever can be done to take the “suggestiveness” out of the lineup procedure will help to lower the chances that innocent people are mistakenly identified. One of the best ways to do that, he says, is to have an independent party with no knowledge of the case or suspect, administer the photo lineup. It’s also a major tenet of both Negron’s and Thurston’s bills.

"All we're doing is taking what is a generally accepted procedure in any scientific study and making it applicable to lineups because the studies of lineups in double blinds show that it is the most effective way to get the most accurate and reliable identification."

But not everyone is convinced that a neutral administrator is needed. Pinellas County Sheriff Jim Coats is one of them.

"We don't have any issues with the bill other than the third party administrator. And as you might imagine how that handicaps, particularly the smaller agencies, but if you have a homicide it requires a lot of resources, usually, and in the smaller agencies it's very, very difficult if not impossible to identify someone who is not involved or does not have a nexus to the ongoing investigation."

But Miller doesn’t buy that argument saying his group has done extensive surveys of agencies in other states, including Ohio, North Carolina and New Jersey who already use a blind administrator for photo lineups and no one has reported any cost concerns.

"We have smaller agencies in Broward County that are tiny, they have like four or five officers, and they have not had any problems. The Hillsborough County Sheriff's Office, a big agency who does this, requires it already, doesn't have any problem."

Leon County Public Defender Nancy Daniels told the Senate Criminal Justice committee which voted 3-1 to pass the bill last week, that the only way to guarantee that all departments use the standards set forth in SB1206 is to put them in a statute. Pinellas Co. Sheriff Jim Coats disagrees.

"I say we do not need law to dictate this, let's give the agencies an opportunity to develop policy and guidelines, just like we do for everything else rather than legislatively mandate this."

Representative Thurston says he finds the law enforcement push back interesting.

"They're really not disagreeing with anything that we're saying, they're just saying that they find it difficult that they be required to do these things. They want to implement it on their own time frame, but it's up to us as leaders to take the bold action and say, 'well, this is something who's time has come. We need to do this in order to protect not just the innocent residents of our society but also the potential victims who are out there if we don't get the right person.' "

Seth Miller couldn’t agree more. He said the Innocence Project of New York has done studies of 267 exonerees. In 120 of those cases the true perpetrators were responsible for over 20 murders and 60 rapes.

"When we fail to get the right person because there's been a misidentification, it has real consequences for the public, not only for victims, but for public safety in general. I would suspect that law enforcement would want to make sure to get the right person up front because if we have the wrong person in prison, the actual perpetrator is out in the street preying on society."

SB 1206 has one more committee stop before heading for a floor vote; the House bill has two. After that, Representative Thurston says he’s hoping Governor Scott will do the right thing and sign it into law.

Previous WMNF news coverage of the Innocence Project of Florida

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What happened to HB 821?