Conviction overturned for failure to allow expert testimony on eyewitness identification

But courts retain broad discretion to decide

An Illinois appeals court has overturned a man's conviction because the trial court did not allow expert testimony on the fallibility of eyewitness evidence.

The case involved Walter Allen, who was sentenced to 43 years in prison for a 2001 robbery-shooting. The robbery was committed by two men wearing hoodies who entered a dry cleaning business, demanded money, and shot a woman employee in the back. From her hospital bed, the woman identified Allen from a photograph as the shooter.

At Allen's trial, the judge refused to allow an expert witness to testify for the defense about problems with eyewitness identification. The judge said that the testimony of Dr. Steven Penrod, a respected psychology-law professor at the John Jay College of Criminal Justice, was unnecessary and might confuse the jury.

In its opinion in People v. Allen, the appellate court pointed to research establishing that eyewitnesses are often wrong, and that jurors have misconceptions about eyewitness accuracy. It cited prior Illinois rulings stating that expert testimony can dispel myths and correct misconceptions, and that "the science of eyewitness perception has achieved the level of exactness, methodology and reliability of any psychological research."

The court said it is not intending to lower the bar and allow all expert testimony about eyewitness accuracy. Judges are still entitled to exclude such testimony in some cases, but first they must carefully scrutinize the proffered testimony and determine whether it is relevant and might be helpful in the specific case. At Allen's trial, the court said, no such careful scrutiny took place.

Traditionally, trial judges are given wide latitude to decide whether to allow expert psychological testimony. For example, in a high-profile murder case in Michigan, a judge last week refused to allow either the defense or the prosecution to call dueling experts.

In that case, Thomas Richardson is accused of pushing his wife Juanita off a cliff at the scenic Pictured Rocks Cliffs. The defense claims that the death was accidental.

In denying both a defense motion to call a clinical neuropsychologist and a prosecution motion to call a forensic psychologist, the court said that the experts' testimony reflected competing opinions rather than science.

"The vagaries of the human mind and spirit are part of the puzzle left to a jury," wrote Alger County Circuit Court Judge Charles Stark. "Nothing proffered can assist them in determine the manner of death."

More commentary on the Allen decision is online at the Eyewitness Identification Reform blog.

Staggering debt keeps prisoners reeling

Justice Department-funded study calls for reform

As I've posted about previously, no one wants to hire ex-convicts. So what is an ex-prisoner to do when he is saddled with $25,000 in debts, and when he finally gets a job he is ordered to surrender every penny he makes?

Where does all this debt come from? Court fines. Fees. Surcharges. Child support. Restitution. Fees for mandatory drug treatment. Even the costs of the DNA testing that exonerated you!

Up to four or five departments may be coming at you all at once, forcing you to surrender 100% of your earnings. That certainly doesn't give much incentive to go through the nightmarish prospect of even looking for a job, and starting down the path of becoming a productive citizen.

Next week, the Council of State Governments' Justice Center will release a report, "Repaying Debts," which was commissioned by the Justice Department to analyze this mounting problem and recommend solutions.

In the meantime, today's New York Times features an excellent editorial calling for reform. The bottom line, says the editorial: "Bleeding ex-offenders financially is a sure recipe for landing them back in jail."

Hot off the press: Two new forensic psychology texts

Psychological Evaluations for the Courts, Third Edition: A Handbook for Mental Health Professionals and Lawyers

Authors: Gary Melton, John Petrila, Norman Poythress, and Christopher Slobogin

Book description: "The definitive reference and text for both mental health and legal professionals is now in a thoroughly updated third edition. This volume offers a uniquely comprehensive discussion of the legal and clinical contexts of forensic assessment, along with best-practice guidelines for participating effectively and ethically in a wide range of criminal and civil proceedings. Extensively revised, the third edition analyzes recent legal developments concerning the admissibility of expert testimony, the insanity defense, sexual predators, the death penalty, outpatient commitment, medication refusal, juvenile justice, antidiscrimination laws, special education laws, and more. It also presents new empirical findings and instruments related to risk assessment, criminal and civil competencies, child custody, and feigning mental illness."


Practical Approaches to Forensic Mental Health Testimony

Authors: Thomas Gutheil and Frank Dattilio

Book description: "A practical hands-on guide to testifying in court on mental health issues, this text offers a vital tool for the novice as well as the most seasoned practitioner. Prepared by two of the field's leading scholars and practitioners, this original work cuts through dense forensic mental health theory and addresses the actual, concrete approaches to ethical and effective testimony that experts need in court. Rich in multiple examples of courtroom dialogue, direct and cross examination, collaboration with attorneys, and the craft of effective testimony, this text describes the common pitfalls and various traps that experts so frequently encounter and tells you how to avoid them. Strategies and techniques are clearly illustrated and arm readers with exactly what they need to be successful in their testimony. This book is a must-read for anyone serious about excelling in court."

Ted Koppel goes to prison

"Breaking Point" airs Oct. 7 on Discovery Channel

Several months ago, I was strolling across "The Yard" at California State Prison-Solano (CSP) when a convict walked up to me and claimed he had just spotted Ted Koppel. At first I thought he was joking, but several others confirmed the sighting.

This Sunday, Koppel's show about the appalling state of California's prisons will air on the Discovery Channel at 9:00 p.m. Entitled "Breaking Point," it focuses on a converted gym crammed full of triple-decker bunk beds.

From the Discovery Channel website comes this overview:

What does the California prison system have in common with Harvard University?

It costs precisely as much to house, feed and guard one prisoner for one year in a California state prison as tuition, meals and housing cost for a student enrolled for one academic year at Harvard. As far as California taxpayers are concerned, it gets even worse. Their prison system is so overcrowded that it's reached a breaking point. Either the state finds a long-term solution or the federal courts have warned they'll begin ordering the release of inmates, just to ease the crush.

In this two-hour broadcast, Ted Koppel examines how California got to this point and presents an inside view of the crisis through in-depth interviews with inmates, guards and prison officials at California State Prison Solano in Vacaville. Designed to accommodate no more than 100,000 inmates, California’s prisons now hold 173,000, each at an annual cost of $43,000.

How did things get so out of control?

Mandatory sentencing is a big part of the answer. When California voters threw their support behind a get-tough-on-crime bill that came to be known as "Three Strikes and You're Out," the state prison system filled up and is now overflowing.

While shooting, Koppel spent a number of days among the general population at Solano. His reporting focuses on the inhabitants of H Dorm, where inmates are stacked in triple-deck bunk beds on an old indoor basketball court. Correctional officers are so badly outnumbered that prison officials keep inmates segregated by race and gang affiliation in a desperate effort to avoid friction and maintain control. Even so, Solano still sees three to four race riots a year. Using smuggled cell phones, gang bosses continue running criminal operations on the street from behind prison walls. At the same time, they’re running drug and prostitution rings inside Solano.

Koppel will introduce viewers to many of Solano's inmates, including Travis Tippets, Joseph Mason and Brian O'Neal. Having completed a six-year sentence for assault with a deadly weapon, Tippets is being released from Solano and sits for a brief "exit interview" with Koppel. The last time he was paroled, it took Tippets less than a day to get arrested and sent back. Knowing that a third strike could land him back in prison for life, Tippets finds out how hard it is to get a job with no skills and a criminal record.

Joseph Mason is a third-striker. He's been arrested and convicted three times for nonviolent burglaries and he won't be eligible for parole until 2019; the ultimate irony is that he voted for the three strikes law. Brian O'Neal is also a nonviolent repeat offender. He has been to prison 11 times and nine of those sentences were for violating parole. Koppel's cameras track O'Neal's 11th release from prison as his pregnant girlfriend picks him up and the two drive out of Solano. Within weeks, O'Neal is arrested again for violating his parole.

Guest report: Interrogations & Confessions Conference, El Paso, Texas

Since I haven't found the time to report on last week's superb conference on interrogations and confessions in El Paso, I'm posting a guest report by Edwin Colfax, director of the Justice Project of Austin, Texas. This report is via "Grits for Breakfast," an award-winning criminal justice blog.

by Edwin Colfax, posting at Grits for Breakfast

I believe it was Jeff Deskovic, a recent DNA exoneree from New York, who said he felt like he was at the Super Bowl, his way of saying that we were in the presence of the best of the best. Jeff was talking about the international conference titled "Interrogations and Confessions: A Conference Exploring Current Research, Practice and Policy," held last week at the University of Texas at El Paso. Having been to a fair number of conferences on issues related to wrongful convictions, I have to say he was really on to something. The conference lineup was a who's who of leading researchers on interrogations and false confessions, including most of the pioneering social psychologists and legal experts who have helped us understand the reality of false confessions and how they occur.

And, of course, Jeff was there to tell us his story about a grueling interrogation he endured at 17 after a classmate was murdered in Peekskill, New York. His eloquent effort to provide a glimpse into his experience is in many ways a tall order, given that most people have a hard time wrapping their head around how an innocent person (especially one who is not mentally disturbed) can be led to confess to a serious crime. Of course, the reality of the phenomenon is increasingly well known and well documented.

Saul Kassin, Richard Leo, Gisli Gudjonsson, Steven Drizin, Ray Bull and Allison Redlich are among the leaders in the field, and anyone interested in learning about interrogations would be well served to review their pioneering work and recent publications. Below are some highlights of the conference Grits readers might find of interest.

Recording Interrogations Benefits Everybody

Confessions are regarded as the most powerful evidence that can be presented at trial, and can even overcome other exculpatory evidence, even forensic evidence, as was the case in the Norfolk Four case.

One of the most straightforward policy responses to false confessions is to electronically record custodial interrogations, thereby creating a complete record of suspect statements and the process that led up to them. Having a complete record eliminates the swearing contests about who said what, when and in what context, and allows judges and juries to make fully informed calls about the voluntariness and reliability of suspect statements.

My own presentation reviewed the unmistakable national trend toward requiring recording of complete custodial interrogations, which is driven in large part by an increasing awareness among law enforcement that the policy serves their own interests as well as the protection of the innocent. My review showed at least 10 states plus the District of Columbia with some statewide recording policy, either in statute or by court ruling, the most recent being North Carolina. California Governor Arnold Schwarzenegger has a recording bill on his desk now.

Recording modernizes police procedures in a way that ensures the best evidence possible against the guilty, and protects police from bogus claims of misconduct. The Justice Project's Policy Review on recording is a great overview of the issue, including case profiles, a model policy, and an overview of the research.

While police and prosecutors in jurisdictions that do not record often express skepticism, those who do record give unequivocal endorsements to the policy. Thanks to the hard work of Thomas P. Sullivan, a former federal prosecutor who has extensively interviewed experienced detectives who record, we know that recording is a valuable law enforcement tool. Sullivan has published several must-read articles on the benefits to law enforcement, available here and here. This work is sure to move us toward more recording as law enforcement hears from peers about the benefits and practicality.

Since Grits reported recently on Prof. Daniel Lassiter's 20 years of research on camera angle bias, I’ll only mention that recording needs to be done carefully and properly to ensure that the evidence is documented in a complete, fully objective way. (Prof. Lassiter was one of the organizers of the El Paso conference, along with Prof. Christian Meissner, both of whom have made important contributions to the development of the literature.)

The Reid Technique and the Detection of Deception

Any serious discussion of interrogations in the U.S. will quickly move to the Reid Technique, which Grits has discussed before. Reid is the dominant interrogation methodology used by law enforcement in the U.S., and delivers trainings all over the country. The President of Reid and Associates, Joseph Buckley, gave an overview of the Reid Methods to a tough audience. Many of the researchers there have been highly critical of the Reid Technique because of the substantial risk of its generating unreliable statements from suspects.

One part of the Reid Technique involves asking a series of particular questions to suspects which are designed to elicit signals of deception from suspects. In fact, a fundamental assumption of the Reid Technique is that these questions, asked early on, are a reliable way to determine if the suspect is truthful or deceptive. If the interrogator determines that the suspect is deceptive, the Reid system moves into a confrontational interrogation mode, in which the interrogator does almost all the talking, and in which the suspect is offered to choose between alternative accounts, which maximize and minimize the suspect’s culpability (but each of which presupposes the suspect's guilt).

One presenter, however, pointed out that the assumptions about outward signals of deceptive behavior that Reid relies on are based on paltry and questionable research, and what little there is uses a very small sample size and ignored ground truth about when a confession is true or false. Professor Aldert Vrij's research actually shows that police are "generally rather poor" at distinguishing deceptiveness. Vrij has published a new edition of his book which he characterizes as an alternative to the Reid Technique that has a much more solid empirical foundation. Given that the high-powered interrogations that have elicited false confessions got cranked up as a result of a mistaken judgment about the truthfulness of a suspect, this research may help to put fewer people in the inherent jeopardy of those psychologically coercive interrogation sessions.

One of Vrij's examples I found particularly interesting. Many people think that excessive blinking may be a sign that someone is deceptive, presumably because they are more nervous about the situation and what they are saying. But research suggests otherwise. First off, innocent people are very nervous in interrogations, too—they are nervous about not being believed! But Vrij has pointed out that lying is, cognitively speaking, harder work than truth telling. Because the liar has to think more about what he is saying, he actually tends to blink less, while focusing all that cognition on keeping his story straight.

Many other bits of 'folk psychology' about deception are similarly dubious.

(Note: I will have more to say about new research into detection deception, as well as some cautionary comments about Vrij's research, in a future post. - Karen Franklin, Ph.D., In the News)

Juvenile Interrogation Tactics Ignore Developmental Vulnerabilities

Another significant criticism of the Reid Technique is that juvenile suspects (as well as those who are mentally retarded or mentally ill) are especially vulnerable to deceptive and psychologically coercive interrogation techniques now standard because they are more compliant and suggestible. There is significant research to show that juveniles are more susceptible to false confessions, but Reid training does not address the relevant differences between kids and adults, and indicates that their standard methods are appropriate for juveniles.

In what I thought was one of the most instructive studies presented, Professor N. Dickon Reppucci from the University of Virginia demonstrated that American police officers, while they generally demonstrated a decent understanding of the developmental differences between youth and adults, seemed to ignore those differences in the context of interrogating young suspects. Repucci and his colleagues did an extensive national survey of police in representative jurisdictions across the country, asking their knowledge about child development and developmental limitations, as well as their views about interrogating youths. There was an unmistakable disconnect between their general appreciation of some basic and relevant developmental factors and their belief that youth can be dealt with in the same manner as adults when it comes to interrogation.

England's Different Approach

Professor Ray Bull gave an overview of the evolution of practices in England, which contains important lessons for those of us in the U.S. who are concerned about false confessions. After some high profile exonerations, the British revised policies in the 1980s away from confrontational, accusatory models of interrogation (like Reid’s) to an information-gathering model. And, of course, the British have required recording of custodial interrogations for many years now, too. According to Prof. Bull, these changes have been embraced by the police service and have proven effective, and there is no effort to go back to the old ways of doing things.

How Innocence Can Work Against You

Saul Kassin gave a fascinating presentation on how the "phenomenology of innocence" can actually contribute to false confessions. Kassin described research that shows that innocent suspects are much more likely to waive their rights and to be open and forthcoming. This seems to be the result of a somewhat naïve but natural faith in the transparency of their innocence. While innocent people are able to offer more plausible denials, they actually seem to trigger harsher tactics from guilt-presumptive interrogators (see Kassin's study from 2003).

On top of all this, there is a distrust of what are perceived as "weak" alibis, such as that one was at home, sleeping in bed, or with family members or friends watching television. Those kinds of things are the reality of most people’s everyday lives, yet investigative tunnel vision can make them seem "weak." All these factors contribute to what Kassin calls an innocence/confession paradox.

Even misrepresentations of evidence, a common, legally permissible interrogation tactic, can, under the right conditions, actually contribute to a false confession. If one is told that his fingerprints are on the gun, or his DNA is at the scene, if he believes in the criminal justice system and in his own innocence, he may actually be more likely to confess to get himself out of a particularly nasty, confrontational interrogation. Such a confession is motivated by the belief that the physical evidence will, when reviewed properly, clear up the mistake. But often that evidence does not exist at all, and was only a bluff by the interrogator to extract a confession. Youths and others with developmental disabilities, in particular, are susceptible to such an ill-advised short-term strategy for getting out of a nasty interrogation.

Posted with the written permission of Edwin Colfax, Justice Project of Austin, Texas, and Scott Henson, award-winning "Grits for Breakfast" blogger

Photo credit: Scottog (Creative Commons license)

Note: Jeff Deskovic, the exoneree who spoke at the conference, is supporting himself through speaking engagements as he finishes up his bachelor's degree and prepares for law school. Contrary to the public impression that exonerees automatically receive money from the government, his sole source of income comes from speaking engagements. He is an excellent speaker, so think about inviting him to your venue to discuss his case.)

Forensic psychological testimony often ignored, psychologists claim

How much influence do forensic psychologists have on trial outcomes?

Not as much as we'd like, two prominent psychologists assert.

In one study, David Shapiro found that psychological testimony about a defendant's mental illness did not reduce the likelihood of a jury imposing a death sentence. Paradoxically, instead of feeling sympathy for the defendant, judges and juries may perceive mental illness as a threat warranting execution, Shapiro said.

An exception, he found, was testimony regarding prior abuse suffered by the defendant, which may create sympathy and understanding.

At the recent APA convention in San Francisco, psychologist Lenore Walker reported a similar pattern in child custody cases.

According to Walker, judges often ignore psychologists' testimony about who should get custody in high-conflict divorces, trusting their gut feelings over the opinions of experts.

The discounting of expert psychologists is especially likely, both psychologists agreed, in cases of dueling experts. Jurors and judges may have trouble weighing the competing evidence and so just discount all of it.

The psychologists called for greater outreach to courts regarding the potential utility of expert testimony, and how to differentiate good expert evidence from bad.

The full story, in the current issue of the American Psychological Association's news magazine, is available online.