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For a while now, we have heard about exonerations obtained due to DNA testing. The current number from the Innocence Project stands at, I believe, 208. One of the more common refrains you hear from champions of innocence is that there are thousands more in jail that are innocent and have no way of proving it. In some cases, there is no DNA evidence and in some, it is lost.

The Denver Post did a terrific series last month on lost evidence, which they called “Trashing the Truth“. (I apologize if its been covered in the blogosphere before - I just stumbled across it.) The Post engaged in a detailed investigation of evidence rooms across the country and profiled several cases where DNA evidence has been lost or destroyed - willfully or otherwise - and innocence bids are foreclosed.

Authorities across the country have lost, mishandled or destroyed tens of thousands of DNA samples since genetic fingerprinting revolutionized crime solving 20 years ago.

Evidence from cold cases goes misplaced across Colorado.

Delicate traces of human biology sit stuffed into pizza and fried-chicken boxes in rat-infested New Orleans evidence vaults.

And specimens are dumped by the truckload in Los Angeles, Houston and New York - sometimes soon after high-profile exonerations.

In a country whose prime-time TV lineup glorifies DNA forensics, many real-life evidence vaults are underfunded and mismanaged, struggling to keep up with technological advances and lagging behind most corner groceries in the way they track valuable crime-scene items.

Facing real-world training and space challenges, even the best-intentioned clerks commonly toss DNA samples, especially from old cases, in what one expert calls the “sledge-o-matic approach to clearing out evidence rooms.”

“You can’t keep everything,” said Arthur Morrell, Orleans Parish clerk of Criminal Court.

The Denver Post examined purges in 10 states and found that authorities destroyed biological evidence in nearly 6,000 rape and murder cases during the past decade, rendering them virtually unsolvable. Over the past three decades, the loss or destruction of DNA evidence in 28 states has undermined efforts by at least 141 prisoners to prove their innocence, The Post has found.

In this age of high profile DNA cases, it is incumbent upon states to reorganize their storage procedures and provide high-tech facilities. If the criminal justice system is indeed a pursuit of the truth and of justice, then it cannot simultaneously aid injustice by destroying evidence.

There are just far too many instances and far too many inmates profiled by the Post. I strongly recommend that you take this Sunday afternoon to read through some of them, available at the link above. One of the higher profile innocence bids is that of Tim Masters, who was convicted with virtually no evidence, but primarily on some sketches that he had done (he was 15) and an FBI profile that was never created.

Edit: Another one to look at is this piece on Clarence Moses-El, who was first suspected of raping a woman because his name came to her in a dream. (I kid you not.) The three people she initially named (right after the incident) were never interviewed by police. Finally, years after his conviction, a judge ordered DNA testing. One month later, the evidence was destroyed by the police department.

Some of the comments in these stories by law enforcement officials and prosecutors are just disgusting. The arguments they put forth in opposing motions for DNA testing are very very disturbing and make you wonder if they really are seeking justice.

Yesterday, the CT Supreme Court issued State v. Randolph [pdf], reversing a murder conviction. The Court agreed with the defendant that he should not have been tried together for two separate offenses. Here is the standard for severance in Connecticut:

The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions. . . .

Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. . . . If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.’’

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.

Yesterday the Senate passed SB 1458 [scroll down to the first full bill discussed], also called “Jessica’s Law”. I’ve blogged about this bill in the past and it really does provide for stiff penalties. It increases the mandatory minimum sentence for sexual assault of a minor under the age of thirteen to twenty five years.

This is also the bill that creates the “tender years” exception to hearsay. My thoughts on this are well documented. I do not like it and I don’t think I ever will.

Not all is bad, though. They amended the “Romeo and Juliet” law to increase the permissible age difference between participants to three years instead of two.

The sad thing is that the bill was based partly on incorrect information:

While the current trend among lawmakers is to move away from mandatory minimum prison terms, Kissel said this was one instance in which such enforcement is necessary. Research has shown that many sex offenders are prone to a pattern of behavior and could offend again if given the opportunity, [Senator] Kissel said.

No, not many. The latest studies show that sex offenders have the lowest recidivism rates. Also notable is the fact that law enforcement agencies have come out against high mandatory-minimums because it makes it difficult to prosecute. Defendants are less likely to accept plea deals and prosecutors have less flexibility in structuring an appropriate sentence.

Here’s another news article with a quote from a prosecutor:

Stephen Sedensky, the State’s Attorney for Danbury Superior Court, applauded lawmakers for taking steps to protect sexual assault victims.

“The legislature realizes the seriousness of these type of offenses and wants the sentences to reflect that,” he said.

He added that the 25-year mandatory minimum for the aggravated sexual assault charge could lead to fewer defendants taking a plea agreement and more cases going to trial.

“It’s too soon to tell whether that will be good for the victims,” he said, noting that the victims could be called upon to testify during a trial. “I’m anxious to see how it will play out in court.”

Well, time will tell how these statutes are utilized and whether they stand up to Constitutional muster.

Technorati Tags: sex offenders, mandatory minimums, connecticut legislation, tender years.

The Connecticut legislature is set to vote on a “tender years” exception statute. In spite of the obvious Constitutional hurdle of Crawford, the sponsors of the bill are pressing ahead. This is the text of the proposed statute:

Sec. 9. (NEW) (Effective July 1, 2007) Notwithstanding any other rule of evidence or provision of law, a statement by a child under thirteen years of age relating to a sexual offense committed against that child, or an offense involving physical abuse committed against that child by a person or persons who had authority or apparent authority over the child, shall be admissible in a criminal, juvenile or civil proceeding if

1. the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy,
2. the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and
3. either (A) the child testifies at the proceeding, or (B) the child is unavailable as a witness and there is independent nontestimonial admissible evidence of the alleged act.

For the purposes of this section, “child” includes a person who is chronologically thirteen years of age or older, but who has a mental or developmental age of less than thirteen years because of mental retardation or developmental disability.

I have highlighted the problematic portions of the statute. Firstly, what is “apparent authority”? Does a simple command such as: “Come here” constitute “apparent authority”? Does kidnapping constitute “apparent authority”?

Secondly, it only allows to “provide the adverse party with a fair opportunity to prepare to meet it”. It does not require that the opponent of the statement have the opportunity to cross-examine the declarant at the time the statement was given, as required by Crawford.

Finally, what does the legislature mean by “independent nontestimonial admissible evidence”? Does a statement by the victim to her mother count?

It seems that there is a general belief that children under an arbitrarily chosen age are more prone to truthful statements. I am unsure of the veracity of this belief and whether it is supported by empirical evidence. Furthermore, as practitioners will attest, children are susceptible to suggestion - suggestion that is more often than not planted by a parent or someone in a position of authority (or apparent authority ;)).

Hopefully the legislature will take note of Crawford and realize that the statute as written is problematic.

Here [pdf] is the written testimony of the Connecticut Criminal Defense Lawyers’ Association in opposition to this statute.

Here [pdf] is the written testimony of the Chief State’s Attorneys’ Office, which seeks to clarify the difference between testimonial and non-testimonial statements.

Here [pdf] is a general statement in opposition by the Chief Public Defender’s Office.

Here [pdf] is a statement by the Judicial Branch asking that the legislature not move forward with this bill, since the issues are currently being considered by the Code of Evidence Oversight Committee.

Previous coverage:

• “tender years” and Crawford
• tender years exception to hearsay
• tender years II
• tender years III
• “anti-innocence” bills: tender years IV

Connecticut is set to join several other states considering videotaping interrogations. Only four states thus far require it (AK, MN, ME and DC). The appropriations committee has set aside 100K a year for ‘08 and ‘09 to test it out. Videotaping of interrogations has become increasingly important what with the explosion of false confession claims over recent years.

“Electronic recording of interrogations will assure protections to the innocent,” said Amanda Melpolder, a policy advocate for the Innocence Project, which has helped exonerate 198 people since it was established in 1992.”Less than ideal interrogation procedures have contributed to or been the main factor in nearly one in five wrongful convictions of individuals later exonerated through DNA evidence,” Melpolder said. “In each of these cases, the true perpetrator remained at large. … The mandatory recording of interrogations is a reform whose time has come.”

Of course, not all agree, especially law enforcement. Their main concern is that it will “hinder the investigators’ interview techniques”. As opposed to ensuring there are no false confessions.

Public Safety Commissioner John A. Danaher III said in his testimony for a recent legislative hearing on the matter. “Defense attorneys may use the tape in an attempt to divert the focus of the jury’s attention in a criminal trial from the accused to criticism of an investigator’s interrogation techniques.”

Good job by the legislature and I hope the pilot program will convince them that this needs to become law in Connecticut.

Technorati Tags: connecticut, videotaped interrogations

Karl of CDW helpfully points out that there is a a big Constitutional roadblock to the tender years exception statutes: Crawford v. Washington, 541 U.S. 36 (2004) [pdf]. He directs me (and those interested) to State v. Snowden, [pdf] a Maryland case which is on point and oft-cited.

The statements that “tender years exceptions” typically seek to make admissible are testimonial in nature and made outside the presence of the defendant or defense counsel. This is clearly a Crawford violation. Crawford held generally that testimonial statements may not be admitted in evidence through non-declarant witnesses unless the declarant is unavailable and there is a prior opportunity for cross-examination. For the purposes of CT’s statute, testimonial means:

[3] “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

In fact, Maryland’s tender years statute looked rather similar to that of Connecticut. Connecticut permits testimony by the victim outside the presence of the defendant, if the court finds that there is a compelling need to do so. This is not exactly on point, so I think the tender years statute should be rejected under Crawford.

The Confrontation Blog has mountains of coverage on post-Crawford decisions.

Previous coverage:

• Tender years exception to hearsay
• Tender years II
• Tender years III
• “Anti-Innocence” bills: Tender years IV

Technorati Tags: tender years, crawford, connecticut

Scott Henson reports on a bill pending in the Texas “lege” that would allow hearsay evidence in sexual assault cases where the victim is 14 or younger. He writes:

I don’t get this - Texas has seen a rash of wrongful convictions uncovered, but rather than pass legislation that would reduce the number of innocent people convicted, these bills are essentially what I’ve called “anti-innocence” initiatives, proposals that make it more likely that flawed or biased testimony generates a wrongful conviction.

This bill invites false testimony that cannot be cross examined, and expands the use of hearsay testimony to imply intent regarding offenses that were never even committed.

As I’ve said before, these bills are very dangerous, but they seem to be gaining steam across the country.

Previous coverage:

• Tender years exception to hearsay
• Tender years II
• Tender years III

Eyewitness ID blog has a few terrific posts up in the last week, which are must reads:

• Stress Effects on Eyewitness Recall.
• Five recantations, yet no reversal.

This blog should be a must read for those in the business.

Technorati Tags: eyewitness identification

On today’s list of bills was S.B. 1458 (”An Act Concerning Jessica’s Law”). This bill has several new proposals, most important of which is the “tender years exception” [see previous coverage below]. According to the proposed bill,

Sec. 9. (NEW) (Effective July 1, 2007) Notwithstanding any other rule of evidence or provision of law, a statement by a child under thirteen years of age relating to a sexual offense committed against that child, or an offense involving physical abuse committed against that child by a person or persons who had authority or apparent authority over the child, shall be admissible in a criminal, juvenile or civil proceeding if (1) the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy, (2) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and (3) either (A) the child testifies at the proceeding, or (B) the child is unavailable as a witness and there is independent nontestimonial admissible evidence of the alleged act. For purposes of this section, “child” includes a person who is chronologically thirteen years of age or older, but who has a mental or developmental age of less than thirteen years because of mental retardation or developmental disability.

This provision applies to a statement of a child under the age of 13, not the testimony itself. The court has to find that the statement is trustworthy (fine), the proponent has to make known the intent to offer the statement (fine) at such a time that the opponent has the time to prepare to meet it (good) and either the child testifies (okay, a reluctant witness) or is unavailable (again, reluctant or otherwise) AND there is independent, non-testimonial admissible evidence of the alleged act. Uh. I’m not sure what that would be…but I’ll wait till the public hearing to form an opinion.

The other provisions of this bill create the offense of “aggravated sexual assault of a minor”, where the victim is under 13. It would carry a minimum mandatory sentence of 25 years. The other provisions create mandatory minimums of 2-10 years for a variety of sex offenses, including repeat offenders.
Previous coverage:

• Tender Years exception to hearsay
• Tender years II

Doing a bit of research on the interweb, I came across this statement by the Chief State’s Attorney’s Office in CT, urging adoption of the tender years’ exception to hearsay. It claims that there are 39 other states in the country that have adopted this exception to hearsay.

How does it play out in your courtrooms? What are the most common examples of when this exception is invoked and how often is the testimony permitted. What are the specific requirements adopted by your various states?

Previous commentary:

• Connecticut to consider “tender years” exception to hearsay.

The Connecticut Legislature is currently considering a bill that would allow a “tender years” exception to hearsay. The bill [S.B. 1245] would add the following section to the General Statutes:

Notwithstanding any other rule of evidence or provision of law, a statement by a child under sixteen years of age relating to an offense committed against that child shall be admissible in a criminal, juvenile or civil proceeding if (1) the court finds, on the basis of the time, content and circumstances of the statement, there is a probability that the statement is trustworthy, (2) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and (3) either (A) the child testifies at the proceeding, or (B) the child is unavailable as a witness and there is independent admissible evidence of the alleged act. For purposes of this section, “child” includes a person who is chronologically sixteen years of age or older, but who has a mental or developmental age of less than sixteen years because of mental retardation or developmental disability.

Immediately this proposal should raise red flags. This does not require that the defense have an opportunity to cross-examine the “minor”. Also, what the heck does “there is a probability that the statement is trustworthy” mean?

Further, how do you define “fair opportunity to prepare to meet it”? Does that mean that the statement has to be disclosed in advance? That the full length and breadth of the “minor’s” testimony has to be made available to the defense beforehand? I doubt that’s what the legislature means.

Anyone else have any ideas on this or know of other states that have proposed this?