Educating Law Makers and the Public.

New laws are needed to prevent wrongful convictions in the future and on behalf of the Foundation, Jeff has testified before state legislative committees and spoken at numerous professional and academic conferences about criminal justice reform.

To prevent wrongful convictions and aid exoneration of the wrongfully convicted, the Foundation seeks legal reforms to:

Minimize Victim and Eyewitness Misidentification
Use the Double Blind Method for Lineups
Permit hearings on the actual truthfulness of confessions and use of expert testimony on false confessions.
Create a standardized evidence preservation system; actual innocence commissions, etc.
Enact penalties for the use of false or misleading evidence, and the failure to disclose exculpatory evidence
Prohibit the Misuse of Polygraphs
Use Sequential Lineups and Photo Arrays
Video Record Interrogations
Circumscribe Incentivized Witness Testimony
Expand Discovery Obligations for Prosecutors
Provide budget and manpower resources for public defenders givento prosecutor
 

False Confessions

ALL POLICE INTERROGATIONS MUST BE VIDEO-RECORDED.  Confessions are blockbuster evidence in criminal cases. A confession sets in motion an inexorable guilt throughout the criminal process. Once police elicit a confession, they typically close their investigation, clear the case as solved, and fail to pursue other leads or exculpatory evidence. Confessions have a decisive impact at trial. Supreme Court Justice William Brennan said a confession “makes the other aspects of a trial in court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained.”

Jeff's wrongful conviction was preordained once he falsely confessed. His real trial occurred in the interrogation room.

Since 1989, postconviction DNA testing has freed over 300 innocent prisoners nationwide, including eighteen on death row. Seventy-eight of these, i.e., 25%, gave false confessions. In virtually all these cases, police contaminated the confession by feeding the suspect non-public information about the crime.

People natually assume no sane person would confess to a crime he or she did not commit. Doing so is irrational and self-destructive. Most people are unaware that detectives receive specialized interrogation training designed to move a suspect from denial to confession, and that police interrogation methods can be psychologically coercive, causing vulnerable suspects to falsely admit to crimes they did not commit.

Police technicians are trained to prevent contamination of evidence. They identify paths in and out of crime scenes; create perimeters around them; keep logs to track who handled each piece of evidence; wear gloves, masks, eyewear, and footwear to prevent contamination of crime scenes and laboratories. Contaminated evidence can lead to a wrongful conviction based on source misidentification.

The same precautions do not apply to interrogations. Confessions become contaminated when detectives leak non-public crime details to the suspect. Police often show suspects police reports, codefendant statements, photographs, and even take suspects to the crime scene. Police refer to this as “inside” or “guilty” knowledge only the true perpetrator would know. These details become incorporated into the suspect's confession, leading to source misidentification that the suspect, not the interrogator, was the source of this guilty knowledge. In official reports, sworn pretrial statements and trial testimony, police emphatically insist this inside information came from the defendant, not the interrogators.

A 2010 groundbreaking study of false confessions revealed “the problem of contamination is epidemic, not episodic.”

To keep contaminated confessions from convicting the innocent, police must record all interrogations from start to finish. Otherwise, there is simply no way for prosecutors, judges, juries, and appellate courts to discern whether police interrogators contaminated a suspect's confession. That is what happened in Jeff's case.

Sixteen states now require video recording of suspect interrogations. The Foundation seeks to make the practice universal in police departments across the nation.

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Police Interrogation Techniques

Most American police departments utilize accusatory police interrogation tactics, especially the Reid technique described by one Canadian judge as “a guilt-presumptive, confrontational, psychologically manipulative procedure.” This technique is banned in Europe for questioning juveniles.

In addition, nearly all police departments utilize tactics designed to induce confessions. These include:
        • isolating suspects for hours on end from family, friends or lawyers
        • depriving suspects of food and drink
        • alternatively, feeding suspects caffeinated drinks and not allowing them to use the bathroom
        • tricking suspects to believe they failed polygraph tests which they passed
        • deceiving suspects about non-existent, incriminating evidence
        • falsely promising suspects they will be released if they confess, and
        • threatening suspects physically or with exaggerated punishment if they refuse to confess.
Young people, the mentally ill, and persons who suffered abuse are especially vulnerable. One study revealed false confessions caused wrongful convictions in 27% of 289 DNA-proven wrongful conviction cases. Jeff’s case was one of them.

Victim and Witness Misidentification

Misidentifications account for 75% of convictions in DNA-based exonerations. Cognitive, perceptual and psychological factors impact on a victim’s recall of the crime. Such factors include:
        • fear
        • trauma
        • the presence of a weapon
        • the length of time the victim or witness had to view the perpetrator
        • differences in ethnic or racial backgrounds between victim or witness and perpetrator.
Yet, despite rigorous studies about the matter, courts have been reluctant to permit defense experts to testify about perceptual and psychological factors affecting identification.
A defendant is typically identified by:
        • so-called “show ups” where the victim is presented with a person in police custody
        • photographs, or
        • lineups.
Police send subtle cues to witnesses to pick out the individual whom the police suspect was the perpetrator.

Confidence Statements

Police often congratulate eyewitnesses who make shaky identifications. The purpose is to bolster the witness for trial despite the tentative ID. This practice heightens the chance an innocent person will be mistakenly identified as the real perpetrator. Where identification is the key issue at trial, police encouragement often makes it difficult for defense counsel to elicit the eyewitness’s sincere belief about the strength and accuracy of the identification.

Identification should be carried out in a clinical atmosphere. Police should ask, “On a scale of one to ten, how confident are you in your identification?” This puts courts and juries in a better position to evaluate the witness’s subjective commitment to the ID at the time it was made.

Lineups, Showups, Photo Arrays

Suspects Should Be Viewed One at a Time, in Sequence
In a lineup, the victim or witness looks through a one-way mirror at a group of people in a line and is asked to identify the perpetrator.

In a photo array, the victim or witness is presented with a set of head shots, usually six, and asked to pick out the perpetrator.

Studies show that, when a victim or witness views several people simultaneously – in person or by photo array – the victim or witness identifies the person who most closely resembles the perpetrator instead of recalling the actual perpetrator from memory. If an assault victim remembers the assailant had a beard and views six men, five clean shaven and one with a beard, invariably, the man with the beard will be identified as the perpetrator.

To avoid bias in these procedures, police should present one photograph or one person at a time, in sequence, all of whom look similar. This helps insure recollection from memory. In addition, victims and witnesses should be told the perpetrator may not be present, and the investigation will continue if no identification is made. This counteracts the pressure to select someone. Studies show that such advice makes witnesses more relaxed and reassures them the pool of possible suspects may be larger than the group presented, thereby reducing artificial focus on those presented.

A show up occurs when a victim or witness is shown a suspect in custody, typically in the back of a police cruiser. Suggestibility makes show ups the least reliable method of identification due to the natural tendency to infer the man in police custody must be the perpetrator, as otherwise, he would not have been arrested.

 

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Incentivized Witnessing

Simply described, incentivized testimony -- so-called “snitch” testimony -- is a form of legal bribery that occurs when police and prosecutors provide a witness with money, immunity from prosecution, reduced punishment, release from prison or some other benefit in exchange for testimony. Typically, such witnesses face prosecution or are already in prison.
Federal law makes it a felony to give or promise a witness “anything of value” in exchange for testimony. A defense lawyer who did this would be guilty of a serious crime. Yet, prosecutors do it routinely and the law permits it. The danger is that, when desperate prisoners have no truthful information to trade, they resort to lying. As Harvard law professor Alan Dershowitz said, "Such witnesses do not just sing, they compose."

The problem of perjured testimony from incentivized witnesses is statistically significant. Such witnesses caused wrongful convictions in 15% of 289 DNA-proven wrongful convictions, and in many more non-DNA exonerations.

Prosecutorial Misconduct

Prosecutors are duty-bound not only to prosecute the guilty but also protect the innocent. Yet, prosecutorial misconduct is commonplace, and the extent to which some prosecutors will break the law is shocking.
A 2003 report from The Center for Public Integrity found prosecutorial misconduct nationwide was rampant: “Local prosecutors in many of the 2,341 jurisdictions across the nation have stretched, bent or broken rules while convicting defendants. Since 1970, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges at trial, reversing convictions or reducing sentences in at least 2,012 cases.” In a six-month study of more than 200 cases, two USA Today reporters found that Justice Department prosecutors sent dozens of innocent men to prison. The authors found forty-seven cases in which defendants were either exonerated or released after prosecutorial misconduct was exposed. A 2010 study by the Northern California Innocence Project revealed that courts found prosecutorial misconduct in 707 cases in the period 1997-2009.

According to The Center on Wrongful Convictions, egregious practices engaged in by rogue prosecutors include:

        • Failure to disclose exculpatory evidence
        • Introducing or attempting to introduce inadmissible, inappropriate or inflammatory evidence
        • Mishandling of physical evidence such as hiding, destroying or tampering with evidence, case files or court records
        • Threatening, badgering or tampering with witnesses
        • Using false or misleading evidence, and
        • Improper behavior during grand jury proceedings.

 

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Biological Evidence

Biological evidence is only available in 10-12% of all serious felony cases. Tragically, when biological evidence is gathered by police, it is too often lost or misplaced after trial.
All states have detailed regulations which require hospitals to preserve blood, tissue and pathological specimens. Yet, the same regulations do not apply to police laboratories.

In the private sector, bar code technology is utilized to keep track of commercial inventory. Many federal and state agencies have adopted this technology to keep track of important paper and electronic records. Yet, many states lack a standardized evidence preservation law which requires criminal evidence be preserved and classified using bar code technology.

The law should mandate preservation of biological evidence so that it remains available indefinitely, just like hospital tissue samples. Such evidence should be catalogued and coded because DNA testing can conclusively determine guilt and innocence years later. In some cases, lucky defendants were exonerated several decades after they were wrongfully convicted because DNA was available. Jeff was one of them.

Pre-Trial Publicity
Sensational reporting can be deadly

The First Amendment guarantees a free press and the Sixth Amendment guarantees a fair trial. There is constitutional tension between these two rights. To preserve our open society, the Supreme Court has tilted the balance in favor of a free press.
Prosecutors enjoy nearly limitless government resources which give them greater access to media than defense counsel. All too often, prosecutors exploit media access to foment hatred for defendants. Pressures of today's twenty-four hour news cycle makes it hard for reporters to do their homework. As a result, they often become little more than prosecution cheerleaders in high profile cases.

Slanted new stories contribute to wrongful convictions because judges and juries are human. Media coverage can lead judges to make bad rulings to ensure a guilty verdict, and cause potential jurors to feel antipathy toward a notorious defendant. Likewise, sensational reporting pressures prosecutors to overcharge cases and causes judges to impose maximum sentences, lest these public officials be excoriated by editorial writers, broadcast commentators and bloggers.

Falsely accused innocent defendants suffer irreparable harm. Marriages are lost, careers destroyed, and some are driven to suicide. Jeff was nearly one of them.

Hopefully, greater awareness that wrongful convictions are all too common will inspire reporters, editors and producers to be more circumspect when reporting about high profile cases.