High Court Tackles ID Flaws


	High Court Tackles ID Flaws Sept. 26, 2005 The Connecticut Law Tribune Lisa Siegel Invoking its supervisory powers, the Connecticut Supreme Court last week unveiled a mandatory new jury instruction designed to reduce the risk of misidentification in criminal cases involving eyewitness evidence. The instruction laid out in State v. Laquan Ledbetter is certain to impact local law enforcement. It is the court's answer to the fallibility of eyewitness identification procedures, documented by the growing number of wrongful convictions nationwide. "This is the first favorable decision on identification that we've had in probably 15 years," said Ledbetter's appellate defense attorney Lisa Steele. A Bolton solo, Steele also co-chairs the Forensic Evidence Committee of the National Criminal Defense Lawyers Association. "It's a decision of national importance," said criminal law expert Barry Scheck, a co-director of the Innocence Project, who teaches at the Benjamin Cardozo School of Law in New York. Scheck's Innocence Project was one of 10 amici that filed briefs in the case urging reform. Other amici included the Center on Wrongful Convictions at Northwestern University School of Law in Chicago and the Connecticut Criminal Defense Lawyers Association (CCDLA). The new instruction, issued in the high court's unanimous Ledbetter ruling, is to be used in cases where the administrator of an identification procedure -- such as a police lineup, photo array or show-up identification -- either suggests to a witness of a crime that the perpetrator might be included in the display or fails to warn the witness that the perpetrator might not be present at all. The instruction cautions the jury that, in those circumstances, "the behavior of the procedure administrator tends to increase the probability of a misidentification." The ruling is to be officially released Sept. 27. "It's a very strong charge, even stronger than what we proposed," said Scheck, who said the instruction reflects the Supreme Court's recognition that it needed "to give clear guidance to the courts below and to law enforcement that failure to warn somebody that the perpetrator might not be in the lineup or array increases error." The charge draws jurors' attention to "psychological studies," which show that suggesting to a witness that the perpetrator is present or failing to warn that the perpetrator might not be included in the procedure "increases the likelihood that the witness will select one of the individuals in the procedure, even when the perpetrator is not present." With the Ledbetter ruling, Connecticut joins the growing number of states -- including Massachusetts, New York, Utah and Georgia -- that have reformed their laws on eyewitnesses identification based on lessons drawn from many recent empirical studies. Experiments performed by forensic psychologist Gary Wells and others cited by the Supreme Court demonstrate that witness confidence in his or her identification may not correlate directly with accuracy. Studies show that witness certainty is susceptible to overt or subconscious cues from the administrator of the identification procedure, observed Justice David M. Borden, who authored the opinion. When witnesses examine a lineup under the belief that the perpetrator is included, leaving the actual culprit out of the lineup almost always results in mistaken identification, according to one study relied on by the court. Data drawn from thousands of experiments indicates that cautioning a witness that the perpetrator "might or might not be present" significantly decreases false identifications when the culprit is not in the lineup, but has no effect on accurate identifications when the culprit is included, Borden wrote. Still the Supreme Court was reluctant to invade the autonomy of law enforcement agencies with an exclusionary rule. "The net effect is to get police to give the warning. Otherwise they'll get the instruction," said Steele. Bridgeport attorney Michael Fitzpatrick, president of the CCDLA, suggested that "the decision could very well prompt police departments to revise their identification procedures or become the springboard for legislation calling for complete eyewitness identification reform." ADVANCE ACTION Reached last week, Chief State's Attorney Christopher Morano said his Law Enforcement Council addressed the concerns raised in Ledbetter and put its remedies into effect even before the high court posted its decision. The council includes Morano, Commissioner of Public Safety Leonard C. Boyle, the president of the Police Chiefs Association, five regional police chiefs and all of Connecticut's state's attorneys. In April, it approved a uniform procedure for eyewitness identification to be used by the state police and all the police departments in the state. The procedure is now being made part of police officers' training curriculum and is detailed in a letter soon to be sent to all the state's police chiefs. Under the new practice, police officers must tell witnesses that the perpetrator "may or may not be present" in the array. Officers are to avoid words, gestures or comments during the viewing of the array or lineup, should position themselves where they can't be seen by the witness and should refrain from making any comment when the procedure is concluded. The goal is to eliminate any suggestiveness from the identification procedure, Morano said. The landmark ruling, however, won't help Steele's client. The jury instruction applies only to future cases, and because the court found no constitutional violation in the victim's eyewitness identification, it affirmed Ledbetter's convictions for two first-degree robberies in East Hartford in 2001. Ledbetter is currently serving a 20-year sentence, suspended after 12 years. The Supreme Court rejected Steele's claims that the failure of the police officer in her client's case to give the "might-or-might-not-be present" warning to the victim violated Ledbetter's federal and state due process rights. Shutting down her federal constitutional argument at the outset, Borden wrote, "We lack the authority to hold now that, in light of additional scientific information, those factors no longer satisfy federal constitutional strictures." Steele said she will almost certainly petition for certification to the U.S. Supreme Court.
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