So the Supreme Court did what the Supreme Court usually does, rejected a chance to prevent unjust convictions. But there was a bright spot, a sterling lone dissent from Sonia Sotomayor -- perhaps the best evidence yet that President Obama was wise to pick her.
There's been a lot of new scientific evidence pointing to the unreliability of eye witness testimony, which was once considered just about the best form of evidence short of a smoking gun. We've all seen the movies: "Is the man sitting right there the man you saw on the night of...?" Powerful stuff -- and often inaccurate. Basically, we can't believe our eyes, especially when the person we're attempting to ID is of another race.
Study after study has shown that all of us have difficulty recognizing individuals from other racial or ethnic groups, and that the phenomenon, known as the cross-race effect, is even worse for people in a majority population group.
White Americans have trouble recognizing black Americans. White French people have trouble recognizing Arab immigrants. Chinese people have trouble recognizing Japanese people.
Many of the people coming out of prison and off death row, exonerated by DNA evidence, were put there because of bogus eye witness testimony. Brandon Garrett, author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, examined the 250 cases in which the Innocence Project exonerated people. He found that witnesses misidentified the once-convicted, now exonerated in 190 of the 250 cases -- 76 percent.
Different factors can influence the reliability of eye witness testimony, but none is more significant than how the police present information to witnesses. According to Garrett's research, in the 190 inaccurate IDs, the police played a role in most of them.
Based on the trial records or other materials he located for 161 of those cases, Garrett found evidence of what he called police “contamination” of identifications in the vast majority: 125, or 78 percent.
In response to new research, including Garrett's, the Supreme Court of New Jersey established new rules that make it easier for defendants to challenge eye witness testimony. The court noted the "troubling lack of reliability in eyewitness identifications.”
The court said that whenever a defendant presents evidence that a witness’s identification of a suspect was influenced, by the police, for instance, a judge must hold a hearing to consider a broad range of issues. These could include police behavior, but also factors like lighting, the time that had elapsed since the crime or whether the victim felt stress at the time of the identification.
When such disputed evidence is admitted, the court said, the judge must give detailed explanations to jurors, even in the middle of a trial, on influences that could heighten the risk of misidentification. In the past, judges held hearings on such matters, but they were far more limited.
The Supreme Court last week ruled on a different case concerning eye witness testimony. In deciding Perry v. New Hampshire, the court had to determine when eye witness testimony is admissible. A lower court had concluded that judges must bar testimony acquired through means known to be faulty -- whether or not the tainted testimony derived from malice or error. In other words, it doesn't matter whether police intended to stack the deck.
But the Supreme Court, with Justice Ginsburg writing for the majority, said No: only when the police intentionally rig the process should testimony be excluded. Scott Lemieux explains the injustice at the heart of the decision.
This unfortunate decision is certain to lead to many more innocent people being convicted even though a standard that is workable and more consistent with constitutional values is available...The intent of the police might be relevant to whether officers should be held liable in the case of a wrongful conviction. But if a lineup is so suggestive as to be unreliable, the intent of the police is beside the point. The majority’s decision to limit the judicial exclusion of eyewitness testimony to cases where there has been police misconduct has the virtue of establishing a clear rule. But this rule is not logically related to its asserted purpose of screening out excessively unreliable evidence. To an innocent person sitting in jail because of erroneous eyewitness identification, whether he was actually framed is not the crucial issue. Unreliable evidence doesn’t magically become more reliable because the police officers who produced the identification acted in good faith.
Justice Sotormayor was having none of the majority's decision. Her dissent is a bit too legalesey for a non-lawyer like me, but she gets her point across, arguing that eyewitness testimony gained under "imper-missibly suggestive circumstances" has a high probability of being unreliable and as such violates due process.
The Court’s holding enshrines a murky distinction—between suggestive confrontations intentionally orchestrated by the police and, as here, those inadvertently caused by police actions—that will sow confusion. It ignores our precedents’ acute sensitivity to the hazards of intentional and unintentional suggestion alike and unmoors our rule from the very interest it protects, inviting arbitrary results. And it recasts the driving force of our decisions as an interest in police deterrence, rather than reliability.
In other words, we should care more about accuracy, so that, you know, fewer innocent people are put to death and sent to prison. Alas, she we a lone voice. But putting her on the court has to be among the President's best moves.
Justice Sotomayor has completely dispelled the fear on the left that her background as a prosecutor would align her with the court’s more conservative members on criminal justice issues. And she has displayed a quality — call it what you will — that is alert to the humanity of the people whose cases make their way to the Supreme Court.
Alert to the humanity of people. Now, how bout that.