Daily Archives: June 15, 2007

CT’s failed EyeID reform bill

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Update: Graciously agreeing to my request, the EyeID blog has this post about CT’s reform bill and, more generally, the interaction between the good goals of such bills and the realities of politics.

That said, we closely followed ID legislation from around United States this session, and one pretty hard and fast rule developed: Though virtually all bills started out looking like Connecticut’s — with a host of specific best practice requirements — the key to passage seemed to be pulling back from the specific and compromising on legislation that mandates best practices generally. These new laws then established some sort of committee (with law enforcment members and others) to draft best practice requirements. (I’m thinking about West Virginia and Maryland here). These bills also sometimes included a few more specific, non-controversial requirements, generally instructions to witnesses and written recording requirements.

The “generally-requiring-best-practices-but-leaving-the-
specifics-to-commitee” approach is not necessarily a bad development. Police generally seem strongly opposed to a specific list of requirements, but not opposed in general to reform and to good science. A best practices approach allows some time for adjustment, and also allows police to “buy-in” to the reforms. Of course, if police try to delay or defeat the drafting of best practices after these sorts of bills pass, then more specific legislation can always be passed later. But the jurisdictions that have adopted a best-practices-by-Committee approach (for example, Wisconsin) have not experienced those problems, at least not to my knowledge. The more common reaction of police who consider the reforms in good faith is eventual strong support.

Original post: In my last post on the recently concluded legislative session, I ran down a list of the “winners” and “losers”. Over the next few days, I will attempt to go through each one individually. I want to start, though, with a bill that didn’t even make it out of committee. The eyewitness identification reform bill (HB 1240). The statement of purpose for this bill reads:

To improve the reliability of eyewitness identification by establishing procedures for conducting a police lineup including having a lineup administrator who does not know which person is suspected as the perpetrator, informing the eyewitness that the perpetrator might not be in the lineup and presenting the persons or photographs in a lineup sequentially rather than simultaneously.

There are a lot of good provisions in this bill, such as

(1) When practicable, the person conducting the identification procedure shall be a person who is not aware of which person in the photo lineup or live lineup is suspected as the perpetrator of the offense;

(2) The photo lineup and live lineup identification procedures shall be conducted in sequence so that the eyewitness is shown each photograph or each person one at a time rather than viewing the photographs or the persons simultaneously

The eyewitness must also be instructed that the suspect may not be a part of the lineup, that he/she should not feel compelled to make an ID, that they will be viewed one at a time in random order.

Also,

(4) The photo lineup or live lineup shall be composed so that the fillers generally fit the description of the person suspected as the perpetrator and, in the case of a photo lineup, so that the photograph of the person suspected as the perpetrator resembles his or her appearance at the time of the offense and does not unduly stand out;

(5) If the eyewitness has previously viewed a photo lineup or live lineup in connection with the identification of another person suspected of involvement in the offense, the fillers in the lineup in which the person suspected as the perpetrator participates shall be different from the fillers used in any prior lineups;

(6) At least five fillers shall be included in the photo lineup and at least four fillers shall be included in the live lineup, in addition to the person suspected as the perpetrator;

(8) In a live lineup, any identification actions, such as speaking or making gestures or other movements, shall be performed by all lineup participants;

(12) Nothing shall be said to the eyewitness that might influence the eyewitness’s selection of the person suspected as the perpetrator;

(13) If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided any information concerning such person prior to obtaining the eyewitness’s statement that he or she is certain of the selection;

(14) A written record of the identification procedure shall be made…

Unfortunately, this bill died in committee. Perhaps the experts at the EyeID blog can take a look at the provisions and see if they really are worthwhile.

The good news, as I previously reported, is that the legislature did approve funding for a pilot project for the next two years. Whether more than one jurisdiction signs up for this pilot project and implements the recommended changes remains to be seen.

WADR*, Your Honor, I’m trying the case

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Congratulations to Audacity for not only getting two not guilty verdicts but also for standing her ground.

…at one point, during the state’s presentation of evidence, the judge asked me to go ahead and put up my client and that, we’ll do the state’s witnesses when they get here. ARE YOU F****** KIDDING ME? When I refused and suggested the state close their evidence, the judge said, “Well since one person in the courtroom refuses to accommodate the other 16-17 people in this room, we’re taking a 20 minute break.” That was a sweet felony not guilty.

Damn straight. I can’t believe the Judge tried to force her to put on her case before the state rested. That’s the (insert synonym for not smart in superlative form) thing I’ve ever heard.

*with all due respect

Motion to Suppress: an untapped opportunity

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Scott Greenfield of Simple Justice has this informative post about the importance of filing suppression motions.

Of all the weapons available to the defense, few are more potent than suppression of evidence.  When I do an appeal, or come into a case after pre-trial motions are completed, I am often astounded at how one of the biggest guns in the defense arsenal is neglected or wasted through the use of pro forma motions, lacking any semblance of thought or strategy.

It’s effort.  Police routinely fudge the details surrounding an arrest, or the procedures for identification, or . . . something.  It’s my responsibility to have such a thorough knowledge of the law, and command of the facts, that I can find that crack and exploit it.

At the very least, you get a preview of the witnesses against you and can get a ton of information about the case.  I push the envelope as far as the judge will let me, going as deep into the facts as possible.  Why? Two really good reasons: First, to get the details that I will never get from discovery. Second, to nail down the witness’ testimony for use at trial, when he “improves” upon it after being told by the prosecutor what he did wrong.  How can any competent lawyer ignore this opportunity?

Another Motion that is under-utilized, in my opinion, is the Motion for Judgment of Acquittal. There are three opportunities to argue this motion: At the close of the state’s case, at the close of the defense’s case and after the verdict. Many-a-times I will read transcripts where the oral motion consists of: “I make a Motion for Judgment of Acquittal”. Usually the Judge asks for argument and the response is a paragraph’s worth of “they haven’t proven their case” or some such generic statement.

That’s not how you do it. Make an argument! Pinpoint the element of the statute that you think the State has not proven. List the elements; list the evidence and then argue why it does not satisfy their burden of proof. Even if you don’t win the first time, or the second, or the third, opposing counsel and the Judge will be on notice that you’re paying attention and that you’re taking it seriously. There’s nothing better for your client, either, than seeing you take his defense seriously.

/rant.