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Mistaken Eyewitness Identifications in Maryland


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American University Washington College of Law Digital American University Washington College of Law Articles in Law Reviews & Other Academic Journals Scholarship & Research 2015 Mistaken Eyewitness
American University Washington College of Law Digital American University Washington College of Law Articles in Law Reviews & Other Academic Journals Scholarship & Research 2015 Mistaken Eyewitness Identifications in Maryland David Aaronson American University Washington College of Law, Julia Fox American University Washington College of Law Follow this and additional works at: Part of the Criminal Law Commons Recommended Citation Aaronson, David and Fox, Julia, Mistaken Eyewitness Identifications in Maryland (2015). Articles in Law Reviews & Other Academic Journals. Paper This Article is brought to you for free and open access by the Scholarship & Research at Digital American University Washington College of Law. It has been accepted for inclusion in Articles in Law Reviews & Other Academic Journals by an authorized administrator of Digital American University Washington College of Law. For more information, please contact Volume XLVIII Number 4 July/August 2015 Criminal Law July 2015 Maryland Bar Journal 1 Mistaken Eyewitness Identifications 26 Maryland Bar Journal July 2015 in Maryland By David E. Aaronson and Julia M. Fox Mistaken eyewitness identifications played the primary role in 236 of the 329 (72 percent) post-conviction DNA exonerations in the United States, according to Innocence Project statistics, making it the number one cause of wrongful convictions. The real perpetrators were apprehended in 159 of these cases. start=0&c4=exonerated+by+dna (last visited Mar. 22, 2015). Since only a fraction of criminal cases involve biological evidence that can be subject to DNA testing, most wrongfully convicted persons have little chance of proving their innocence. Wrongful convictions based on mistaken eyewitness identifications are especially serious for racial minorities, who make up approximately 70 percent of the wrongfully convicted. Elizabeth F. Loftus, The Dangers of Eyewitnesses for the Innocent: Learning from the Past and Projecting into the Age of Social Media, 46 New Eng. L. Rev. 769, 770 (2012). July 2015 Maryland Bar Journal 27 Maryland is not exempt from eyewitness misidentification. In this state, Kirk Bloodsworth became the first man to be exonerated after being sentenced to death. At the age of 22, Bloodsworth was arrested after an anonymous call suggested that he was responsible for the rape and murder of a young girl. Although no physical evidence tied Bloodworth to the murder, witnesses testified that they had seen him with the victim. Bloodsworth spent nine years in prison before he was released based on DNA evidence. Kirk Bloodsworth, Innocence Project, (last visited Mar. 8, 2015). Other examples of wrongful convictions based on eyewitness identifications in Maryland include Larry Lane Hugee, who was arrested for the robbery of a Dollar Tree. Hugee, who had prior convictions for theft and possession of a weapon, had been questioned by police in the strip mall where Dollar Tree was located about a week prior to the robbery. Police put Hugee s photograph into a photographic lineup, and although the robber s face was covered with a ski mask during the commission of the crime, witnesses identified Hugee as the robber. Larry Lane Hugee, the National Registry of Exonerations, umich.edu/special/exoneration/ pages/casedetail.aspx?caseid=4172 (last visited Mar. 8, 2015). Jerry Jenkins was another Maryland victim of witness misidentification who was falsely imprisoned for rape. Jenkins, who was being held in Charles County Jail following his arrest for an unrelated crime, was interviewed in relation to the rape. Despite having taken a photo during their interview of Jenkins, police put a five-year-old photograph of him into a photographic array, resulting in the victim saying he looked like the attacker. Although at trial, the victim said she could not positively identify Jenkins, he was convicted and spent approximately 26 years in prison. Jerry Lee Jenkins, the National Registry of Exonerations, umich.edu/special/exoneration/ Pages/casedetail.aspx?caseid=4191 (last visited Mar. 8, 2015). These stories and others demonstrate the need to re-evaluate current eyewitness identification procedures in Maryland to help reduce wrongful convictions. The Need for Additional Safeguards to Reduce the Likelihood of Wrongful Convictions Based on Mistaken Eyewitness Identification(s) There is an emerging consensus, including within the U.S. Department of Justice, the National Research Council of the National Academies of Sciences (Identifying the Culprit: Assessing Eyewitness Identification, 2014), and the International Association of Chiefs of Police (National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions, August 2013), that recognizes the need and importance of additional safeguards to reduce the likelihood of mistaken eyewitness identifications. These reforms need to be initiated through state courts and legislatures, rather than rely on federal intervention. The U.S. Supreme Court, in an 8-1 decision in Perry v. New Hampshire, 565 U.S., 132 S. Ct. 716 (2012), affirmed a defendant s conviction for breaking into a car in a parking lot. Defendant alleged that the circumstances surrounding his identification were suggestive because, among other things, the eyewitness had identified him while he was standing next to a police officer in the parking lot. Resolving a conflict among federal and state courts, the Court held that a trial judge is not required under the Due Process Clause to conduct a preliminary assessment of the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. Id. at 730. The Court in Perry reaffirmed the holdings of its earlier cases, especially Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972) and Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct (1977). Under these cases, the Due Process Clause does not require that an identification infected by improper police influence be automatically excluded. If the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, then the pretrial identification evidence ordinarily will be admitted and the jury will ultimately determine its worth. Perry, at 720. Trial courts often follow a two-step procedure: (1) whether the police used an unnecessarily suggestive identification procedure ; and (2) if they did, whether [that] procedure so tainted the resulting identification as to render it unreliable and thus inadmissible. Id. at 722. Maryland follows this two-step procedure. See Chambers v. State, 81 Md. App. 210, 567 A.2d 458 (1989). Even when the pre-trial identification is found to be inadmissible due to its 28 Maryland Bar Journal July 2015 suggestive nature, if the subsequent in-court identification is not a product of the tainted identification, but is based on an independent source such as a clear view of the suspect at the occurrence of the crime, the-in court identification may be admitted. See, e.g., Foster v. State 272 Md. 273, 323 A.2d 419 (1974).In Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct (1997), the Supreme Court provided a list of factors to weigh against the corrupting effect of a suggestive identification, including: opportunity to view, degree of attention, accuracy of the description, witness s level of certainty, and time between the crime and confrontation. Id. at , 97 S. Ct. at In Justice Sotomayor s dissenting opinion in Perry, she stated that it is not merely the suggestive act that creates a Due Process concern, but the effect of a suggestive act on the reliability of a resulting identification. Perry, at 731. Conduct that is intentionally suggestive or inadvertently suggestive can lead to the same unfair result. Referring to the numerous scientific studies on the topic of reliability of eyewitness identifications, she stated: Over the past three decades, more than two thousand studies related to eyewitness identification have been published. One state supreme court recently appointed a special master to conduct an exhaustive survey of the current state of the scientific evidence and concluded that (t)he research is not only extensive but it represents the gold standard in terms of the applicability of social science research to law, Id. at 738 (citing State v. Henderson, 208 N.J. 208, 283, 27 A.3d 872, 916 (2011)). At least one state court has rejected the holding in Perry v. New Hampshire, supra, on state evidence grounds, finding that an identification should not be admitted when it arises from especially suggestive circumstances other than police procedures. In Commonwealth v. Crayton, 470 Mass. 228, 21 N.E.3d 157 (2014), the Supreme Judicial Court of Massachusetts stated: Our reliance on commonlaw principles of fairness to sup- July 2015 Maryland Bar Journal 29 press an identification made under especially suggestive circumstances even where the circumstances did not result from improper police activity is also in contrast with the United States Supreme Court jurisprudence. Id. at 235, 21 N.E.3d at 165. State v. Henderson, the landmark case decided by the Supreme Court of New Jersey and cited by Justice Sotomayor in Perry v. New Hampshire, revised the framework for admission of eyewitness identifications by allowing judges to consider all relevant factors that affect reliability in deciding whether an identification is admissible and departing from a rule that is heavily weighted by factors that can be affected by suggestiveness. 208 N.J. 208, 288, 27 A.3d 872, 919 (2011). The new test allows all relevant variables to be explored at pretrial hearings when there is evidence of suggestiveness, and calls for courts to develop and use enhanced jury instructions so that jurors can evaluate eyewitness identification evidence properly. Id. The Oregon Supreme Court, in State v. Lawson, went further by requiring Oregon courts to consider all factors that can affect an eyewitness identification and employ remedies, such as limiting the eyewitness s testimony and permitting expert testimony to explain the science behind identifications. 352 Or. 724, , 291 P.3d 673, 697 (2012). It also instructed trial courts to impose remedies if the defendant establishes that he/she would be unfairly prejudiced by the evidence. Id. Building on that momentum, the Supreme Court of Connecticut, in State v. Guilbert, held that the reliability of eyewitness identifications is often not a matter that the average juror is familiar with, and the admission of an expert witness on that issue does not invade the providence of the jury to determine what weight to give evidence. 306 Conn. 218, , 49 A.3d 705, 731 (2012). The Court held that the trial court abused its discretion by concluding that an expert witness s testimony about the reliability of eyewitness identification concerned matters of common knowledge. Id. at 259, 49 A.3d at 735. Pre-trial and Trial Safeguards to Reduce the Likelihood of Wrongful Convictions Based on Mistaken Eyewitness Identification(s) According to Deborah Davis and Elizabeth Loftus, eyewitness identifications are very rarely suppressed. Deborah Davis & Elizabeth F. Loftus, The Dangers of Eyewitnesses for the Innocent: Learning from the Past and Projecting into the Age of Social Media, 46 New Eng. L. Rev. 769, (2012). In New Jersey v. Henderson, supra, the Report of the Special Master, No. A-8-08 (June 18, 2010) found only one New Jersey appellate decision, unreported, that applied the U.S. Supreme Court s Manson v. Brathwaite, supra, test to suppress an eyewitness identification. The Report concluded: Because the test allows a finding of reliability notwithstanding impermissible suggestiveness, it appears to be of little value in weeding out unreliable identifications. Id. at 78. There are two viable avenues to reduce the likelihood and impact of mistaken eyewitness identifications: (1) improve pre-trial police procedures to reduce the likelihood that mistaken identifications will occur; and (2) in appropriate cases, trial judges should consider allowing expert witness testimony and providing eyewitness specific jury instructions to help jurors better understand the circumstances that may affect the accuracy of eyewitness identification evidence. A third avenue, to modify existing standards and procedures so that trial judges will be more likely to suppress unduly suggestive and unreliable eyewitness identifications, is unlikely to to happen in Maryland in light of the Court of Appeals recent decision in Smiley v. State, No. 37 SEPT. TERM 2014, 2015 WL (Md. Mar. 9, 2015). In a unanimous decision, the Court of Appeals affirmed its nearly 30-year-old standard that photo identifications be admitted unless the police procedure was so impermissibly suggestive as to make the identification unreliable. A. Improving Pre-trial Police Procedures The Innocence Project notes that ten states have implemented the 1999 reforms published by the U.S. Department of Justice (DOJ), Eyewitness Evidence: A Guide for Law Enforcement (1999) (available at nij/ pdf), a set of voluntary guidelines for eyewitness investigations by law enforcement. According to the Innocence Project, these procedures have been shown to significantly decrease misidentifications. The Causes of Wrongful Conviction, Innocence Project, (last visited Mar. 8, 2015). The Innocence Project reports that Maryland has already taken steps to reduce and remedy wrongful convictions: law enforcement units that regularly use interrogation rooms capable of creating audiovisual 30 Maryland Bar Journal July 2015 recordings must make reasonable efforts to record custodial interrogations for certain crimes (see Md. Code Ann., Crim. Proc ); a person convicted of murder, manslaughter, or certain sexual offenses may be eligible for post-conviction DNA testing; biological evidence must be preserved for certain criminal cases; and the Board of Public Works determines compensation packages for pardoned individuals wrongfully convicted (see Md. State Fin. & Proc ). Maryland, Innocence Project, (last visited Mar. 8, 2015). In 2014, the Maryland General Assembly took another important step by enacting legislation requiring all law enforcement agencies in the state to adopt and implement policies to improve pre-trial policeconducted eyewitness identification procedures. Each law enforcement agency within the state has until January 1, 2016, to adopt the Police Training Commission s Eyewitness Identification Model Policy or to adopt and implement its own policy that complies with Md. Code Ann., Public Safety The Department of State Police will then compile the written policies and allow public inspection. Md. Code Ann., Public Safety 3-506; Public Safety Eyewitness Identification Procedures, 2014 Maryland Laws Ch. 202 (H.B. 1200). The new legislation has some shortcomings and leaves many questions unanswered, among them: After the Department of State Police compiles the written policies and allows public inspection, which agency, if any, will be tasked with making sure that the policies are implemented, how much time will be allowed for implementation, and what authority will this agency have?; What penalties, if any, will be imposed for failure(s) to abide by the new legislation?; What resources will be available to local law enforcement agencies to implement the new policies?; What type of and how much training will be required to make sure that the procedures are properly implemented, who will provide the training, and how will the training be conducted?; Will these procedures be applied to serious felonies, all felonies, or all cases? Also, while sequential line-ups and sequential photo line-ups are discussed in the DOJ Guidelines (see supra at 34), they are not addressed in the recently enacted Maryland legislation. According to the Guidelines, Scientific research indicates that identification procedures such as lineups and photo arrays produce more reliable evidence when the individual lineup members or photographs are shown to the witness sequentially one at a time rather than simultaneously. (see Guidelines at 9). Some, but not all, Maryland law enforcement agencies currently use sequential methods of presentation. B. Trial Safeguards Expert Witnesses Justice Ginsburg, writing for the majority in Perry v. New Hampshire, stated that the admission of expert testimony helps jurors evaluate eyewitness identifications and safeguards defendants against misidentification. 565 U.S., 132 S.Ct. 716, 729 (2012). The Court noted that some states allow defendants to present expert testimony on this evidence. Id. (citing State v. Clopten, 2009 UT 84, A33, 223 P.3d. 1103, 113)( We expect that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony [on the dangers of such evidence.] ). Justice Sotomayor, dissenting in Perry v. New Hampshire, responded to the majority s reliance on the jury to determine the reliability of eyewitness identification evidence: [O] ur cases are rooted in the assumption that eyewitness identifications upend the ordinary expectation that it is the province of the jury to weigh the credibility of competing witnesses. As noted, jurors find eyewitness evidence unusually powerful and their ability to assess credibility is hindered by a witness false confidence in the accuracy of his or her identification. 132 S.Ct 716, 737. Maryland judges have often declined to admit expert testimony on eyewitness identifications. Interestingly, in the Kirk Bloodsworth case in 1986, the Court of Appeals of Maryland held that the trial court did not abuse its discretion in declining to admit expert testimony on the reliability of eyewitness identifications given the discretion of trial judges in the admission of expert testimony. Bloodsworth v. State, 307 Md. 164, 186, 512 A.2d 1056, 1067 (1986). The trial judge feared that the evidence would confuse or mislead the jury and that it would be of little value in helping the jury understand the evidence. Id. at 178, 512 A.2d at More recently, the Court of Appeals of Maryland upheld the trial court s refusal to admit expert testimony on (1) the lack of correlation between a witness s confidence and accuracy of that witness s identification on the grounds that it offered nothing of value to the jury, (2) the adverse affect of the passage of time on July 2015 Maryland Bar Journal 31 a witness s ability to recall memories on the grounds that it is common knowledge, and (3) the adverse affect of stress on one s recollection of memories on the grounds that it would be confusing to the jury. Bomas v. State, 412 Md. 398, , 987 A.3d 98, 115 (2010). Furthermore, in Smiley v. State, No. 37 SEPT. TERM 2014, 2015 WL (Md. Mar. 9, 2015), the Court of Appeals affirmed the decision of the Court of Special Appeals, 216 Md. App. 1, 84 A.3d 190 (2014) and upheld the trial court s refusal to allow expert witnesses to testify on scientific knowledge concerning memory. The Court of Appeals declined to adopt the theories and methodologies of the New Jersey Supreme Court in State v. Henderson, supra, either as a matter of State constitutional or evidentiary law. Id. at *7. However, the court declared that trial courts should recognize these scientific advances in exercising their discretion whether to admit such expert testimony in a particular case. Id. at *13 (quoting Bomas v. State, 412 Md. at 416, 987 A.2d at 112 (2010). Eyewitness Specific Jury Instructions Eyewitness Specific Jury Instructions The court in Henderson v. State stated that expert testimony might be less necessary with the use of focused eyewitness identification jury instructions. 208 N.J 208, 219, 27 A.3d 872, 878 (2011). An important judicial function is educating the jury through the use of jury instructions. Currently, Ma
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