Posts Tagged ‘eyewitness identification’

Extending the Right to Counsel?

Thursday, March 3rd, 2016

In the “class participation” section of my comic, commenter G. T. Bogosian this morning asked:

Why does the supreme court keep guaranteeing that we have a right to counsel, but only in situations that almost never come up in real life? Is there some guiding constitutional interpretive philosophy that explains all or most of this? Or does the supreme court just really want to sound like they are pro-defendants’ rights without actually jeopardizing law-enforcement?

To which I hastily replied over my morning coffee:

They just haven’t extended the rule far enough yet.

Originally, the right-to-counsel clause of the Sixth Amendment was intended to allow you have a defense attorney. It was a reaction to the English rule prohibiting defense counsel.

The English prohibition started out as a well-intentioned policy. Originally, criminal trials didn’t involve lawyers on either side. The victim or his family presented their case, and the defendant defended himself. A criminal trial was a “battle of amateurs,” and so judges would strictly enforce the prohibition on defense counsel to be fair. Lawyers were also seen as an impediment, preventing the court from getting all the evidence it could have heard.

But by the time of the American Revolution, the rule had become unfair. Defendants had to deal with the intricacies of procedure, complexities of law, and now the government was using lawyers to prosecute cases. The Sixth Amendment was meant to fix that unfairness.

But the focus then was only on the trial itself. The framers of the Bill of Rights were really only thinking about trial. The Amendment’s rights apply “in all criminal prosecutions,” and at the time, that meant “at trial.”

Over time, however, prosecutions got longer, and more procedures came to be seen as being part of the case. Defendants had to face professional lawyer adversaries earlier and earlier, and confront witnesses at pretrial and preliminary hearings. The Supreme Court responded by extending the right to counsel, letting it take effect sooner.

The rule became that the right to counsel “attaches” at all “critical stages” of a prosecution before trial.

And that’s what the Court was thinking when it talked about interrogations and lineups. The Court was trying to be expansive, to say these investigative procedures were in fact “critical stages” of a prosecution, requiring the assistance of counsel.

But the right is still only about “criminal prosecutions.” And there is no prosecution until the defendant has been formally charged. A prosecution does not begin with a police investigation. A prosecution does not begin with an arrest. It begins with arraignment in court on a complaint, an indictment by a grand jury, and similar court procedures formally accusing the defendant of a crime.

It would be a leap of language — but not of logic — to extend the rule of the Sixth Amendment sooner, to extend it to police investigations. Remember, police weren’t a thing when the Sixth Amendment was written. They have since become an important part of the government’s prosecution of a case. The Court already recognizes that the investigative stage is a critical stage of the prosecution; it just hasn’t recognized that the investigative stage precedes the filing of an accusatory instrument.

Right now, however, that is where they’ve drawn the line. They’ve adhered to the words of the Amendment rather than the principle they’ve recognized. And this rule has become “well-settled” by the passage of time.

So the short answer to your question is they’re trying to protect defendants, but haven’t yet seen that to do that they need to extend the meaning of “criminal prosecution” to include police investigations.

It’s not impossible. They did that with self-incrimination, as we saw in the previous chapter, extending the right to pre-prosecution interrogations. Nevertheless, challenge to get the Court to extend the right to counsel meaningfully would have to overcome the inertia of stare decisis, would have to present a powerfully principled argument, and would have to rigorously unknot the Court’s perpetual confusion over what to do about police given (also covered in the previous chapter) that the law never contemplated the roles that police have taken on.

But now it’s later in the morning, I’m at work, having a coffee break, and I’m pondering a couple of things. My thoughts are disjointed, and perhaps writing them down will bring clarity.

We’ve already extended the right to counsel beyond the charging instrument to the police investigation, in the self-incrimination context. Is there really much of an obstacle to applying the same reasoning to other contexts where the Court recognizes the need for counsel’s protection? Would a rule like Miranda work in something like eyewitness identifications?

I don’t think it’s that much of a stretch. Yes, there are very different policies in play, but as a practical matter the rule would seem to work.


With self-incrimination, the policy is to prevent the government from forcing you to give evidence against yourself. There’s a waiveable right to counsel at a custodial interrogation in the hopes of ensuring that self-incrimination is voluntary. (That’s not how it works, but that’s not the point.)

With identifications, however, the policy is to prevent the government from interfering with a witness’s memory. Not overcoming your free will, but tampering with the evidence. Would a waiveable right to counsel insure against such tampering?

The Court has already recognized the need for counsel at post-indictment lineups and showups, to ensure minimal messing with minds. So it seems easy to extend that protection pre-indictment. (It hasn’t been extended to photo arrays, though, which can be just as dangerous and are much more common. But let’s just pretend those are included, for the sake of argument, and because I can dream, can’t I?)

But when would it attach? At first glance, the “custody” requirement of Miranda doesn’t make sense here. Custody is important to Miranda because it implies compulsion. But compulsion isn’t an issue in IDs.

Still, it couldn’t attach at the outset of a police investigation. Even though that’s arguably when the police can do the most damage to witness memory, by careless questioning and suggestion. Because there’s no suspect yet. Who’s the defense lawyer defending? Plus requiring a lawyer to be looking over the cop’s shoulder during the preliminary stages would be time-consuming, wasteful, and a serious impediment to collecting evidence.

Arrest, on the other hand, is too late. Often, the arrest isn’t made until after the ID procedure we’re trying to protect.

So on second thought, custody seems to be a meaningful bright line to draw. It’s already understood by police and counsel, for one thing. But it’s a workable line between when a lawyer is useful or not. Once the suspect is in custody, there’s someone whose rights can be defended. The preliminary stages of the investigation are over, so a lawyer is less of an impediment.

As showups usually require custody, they would have to wait until counsel could be obtained, unless counsel was waived. That could be a problem. Most showups are quick-and-dirty “did we get the right guy” scenarios shortly after the crime. Requiring counsel would require a lot of delay. In a drive-by ID, I reckon counsel would have to be in the car with the witness and the detective, to make sure nothing too suggestive was said, and that could be physically difficult to arrange. The logistics aren’t insurmountable, but they’re awkward.

But lineups and photo arrays are easy. While the detectives are setting everything up, they bring in the lawyer as well. Logistically not a problem. And even in showups, the lawyer isn’t an impediment. Police actually do want to do these things right, and a lawyer’s role would be to ensure that they do.

If the right’s waiveable, what would the warnings look like? “An eyewitness is going to look at you, to tell us if they recognize you as the person who committed a crime. You have the right to have an attorney present during this procedure. If you cannot afford to hire an attorney, one will be appointed to represent you. Do you wish to have an attorney present at this time?” Again, awkward. But not terribly so.

Would it even be waived? This isn’t like confessions, where suspects often want to tell their story, and will gladly waive their rights in order to do so. A suspect has nothing to gain from waiving here, so I imagine few rational suspects would say “nah, go ahead, I don’t need a lawyer for this.”

As a practical matter, I don’t see it being waived all that often. So a defense lawyer would be required at most ID procedures. In interrogations, invoking the right to counsel simply means “no interrogation.” They don’t go round up a lawyer. Would a right to counsel in identifications essentially mean “no identifications?” I don’t see any court agreeing to that, if that’s the case.

And yet, with both interrogations and identifications, the courts have recognized the great potential for injustice, and have stated that a lawyer’s protection is the remedy. And perhaps the risk of losing identifications isn’t that high. It’s not as if the police would decline to conduct ID procedures just because a lawyer would be watching. It’s not the same as interrogations, where any lawyer would simply advise her client not to answer any questions. Here, a lawyer would only be watching to make sure the police did their job right. It’s a very different dynamic. I imagine that it wouldn’t reduce the number of ID procedures meaningfully.

So to answer my own questions, I’m starting to convince myself that a rule analogous to Miranda might actually work in the ID world. Once a suspect is in custody, he has a waiveable right to an attorney at any ID procedure. It seems doable, and consistent with the way our law’s been trending over the past 75 years or so.

Welp, coffee break’s over. I’m done rambling. It’s been fun, but back to work.

A Prosecutor Defends Eyewitness Identification

Wednesday, November 11th, 2015

It’s fairly well-established that eyewitness identification sucks, as a rule. There have been tons of scientific studies going back decades — and more are conducted all the time — on the reliability of eyewitness testimony. The studies generally conclude that we’re really bad at noticing things, remembering them accurately, and identifying faces we aren’t already familiar with. Oh, and we really really suck at it when the face is of someone of another race. Meanwhile, the field of neuroscience is reporting breakthroughs literally every month in our understanding of how the brain creates memories, stores memories, distorts memories, processes sensory perceptions, processes faces, recognizes faces, et cetera et cetera et cetera. On top of all that, there have been studies demonstrating how traditional law enforcement methods can make all of this even worse, and what other methods would work better. And on top of all that is the incontrovertible data that eyewitness testimony has played a significant role in wrongful convictions that have been proven to be wrongful.

If you want to go read the scientific literature, please do. There’s a lot. If you want a quick-and-dirty version, I’ve been covering it in my comic for — holy hell, a year now? For those preferring a more, say, jurisprudential approach, Judge Alex Kozinski wrote an excellent summary of the situation in Criminal Law 2.0, his preface to this summer’s Georgetown Law Journal Annual Review of Criminal Procedure. Click on the link to read his views.

But in American jurisprudence, these are still minority views. The courts are slow to adopt change, and have been incredibly slow to adapt the law of eyewitness identifications to the scientific facts. It’s starting to happen. And I fully expect us to reach critical mass within a generation if not sooner. But the majority of courts aren’t there yet.

And law enforcement isn’t entirely on board, either. You’d think they’d want to be on board, though — after all, who wants to lock up an innocent person and leave the real bad guy free to do it again? But inertia, the investment of ego, and confirmation bias are much more powerful than you may suspect. Especially in law enforcement. You’ve seen the mind-numbingly bad arguments cops and prosecutors have come up with to insist someone’s guilty even after the DNA proves he isn’t — or even to fight tooth and nail against the DNA analysis that would prove it. There’s too much invested in having been right.

And there’s a lot of ego, inertia, and confirmation bias invested in the sense that eyewitness identifications — they way they’ve traditionally been done — are just fine and dandy.

Which brings us to the recent publication of “The Unreliable Case Against the Reliability of Eyewitness Identifications: A Response to Judge Alex Kozinski,” by Connecticut appellate prosecutor Laurie Feldman.

Feldman’s piece is an attempt to say Kozinski — and all the others who have problems with eyewitness identifications and testimony — have it all wrong. Things aren’t as bad as everyone says, and we shouldn’t jump to make unnecessary reforms. Don’t fix what ain’t broke.

Click on the link to read the whole thing yourself. I, for one, don’t find it terribly well reasoned, but your mileage may vary. From what I understand, her points are these:

(1) There’s no scientific proof that jurors put too much store in eyewitness testimony.

(2) There’s no good science saying eyewitnesses aren’t reliable.

(3) Scholarship here is agenda-driven, which distorts the results. Peer review only makes this worse.

(4) Just because someone was exonerated, that doesn’t mean he was innocent. So how does that mean the eyewitness who fingered him was wrong?

(5) So what if 72% of DNA-based exonerations were cases involving false I.D.? How many cases, where DNA proved guilt, involved an eyewitness’s correct I.D.? What if it’s the same number?

(6) We’ve only exonerated a teeny tiny subfraction of a fraction of people convicted on eyewitness testimony. That sounds like they’re reliable, not unreliable.

(7) Courts are allowing experts to testify about all this, and they shouldn’t. This exposes the jury to political agendas, and makes the scientists advocates instead of objective scientists. Courts are moving too fast to adopt reforms like this.

(8) It’s unwise to jump on the latest social-science fad to fix what ain’t broke. There’s not a single study saying that double-blind experiments are better than ones where the examiner knows who the suspect is. And simultaneous lineups simply get better results than sequential ones.

All I can say is:

(1) If her footnotes are to be relied upon, she clearly has a lot of reading to do. I can suggest a bibliography if she wants one. This recent National Academy of Sciences report is a good start. Heck, she’s welcome to take every damn book off my bookshelf right now because I need the space for all my resources for the comic’s upcoming forays into Constitutional Law.

(2) Ditto.

(3) Perhaps she should stop reading scholarly writings and “social science” sources, and focus on the objective scientific studies out there. I encourage her to maintain a healthy skepticism of sociology and meta-analysis and studies with small sample size or weird methods — but the good news is there’s a whole lot of good stuff out there with good clean numbers and healthy p-values.

(4) DNA exonerations pretty clearly show he ain’t the guy. The eyewitness who absolutely positively no doubt about it said that’s they guy? Wrong.

(5) Not the issue. The issue isn’t how many guilty people are properly convicted. The issue is, when an innocent person does get wrongfully convicted, what’s causing that, and how can we prevent it from happening again? When 72% of your wrongful convictions that you know to be wrongful because the DNA says so were based on a false identification? That’s a very strong correlation. Combined with the fact (sorry, it’s true) that juries do put a whole heck of a lot of weight on that false I.D., and it’s safe to say we’ve got causation as well. (Whereas 100% of wrongful convictions may have taken place in a courtroom with a judge, a very high correlation indeed, but there’s zero evidence that the presence of a judge played any effect on the jury’s verdict, so we can disregard that one.)

(6) Intellectually dishonest. You’re saying “you guys haven’t disproven all these other cases yet, so let’s presume those IDs were good.” Ignoring the fact that only a small teeny tiny microscopic percentage of cases where the defendant insists upon his innocence are ever taken up by folks like the Innocence Project. You’re also comparing the number of hits in the sample size to the overall population being studied. The fact is, an obscenely high number of hits in this statistically significant sample probably translates to an obscenely high number of hits overall.

(7) Fine. You’re not allowed to use DNA experts, either… Seriously? Draw up a timeline of courts adopting real meaningful reforms here and show me how it’s moving too fast.

(8) Apparently the latest fad = decades of research, and basic Science 101 recommendations for how to conduct an experiment that have been understood for ages. None of this is rocket science. None of this is remotely eyebrow raising to anyone with a genuine science background. If you really don’t think double-blind studies are proven to be effective, that they eliminate intentional and unintentional suggestion by the examiner, then you really really shouldn’t have skipped that day in 8th-grade Science class. As for simultaneous vs. sequential, you are ALMOST RIGHT!! Because sequential arrays DO result in fewer correct identifications, along with fewer false ones. Sequential arrays only solve the problem of relative-judgment witnesses who compare the faces in the lineup to each other. They’re best used with children, lower-IQ people, and all the people whose brains really work this way only they don’t know it and neither do you. All of whom, it so happens, are the ones making the MAJORITY of false identifications. Losing a few correct IDs (because during sequential procedures we all tend to raise our threshold for certainty, worrying that a better match might be coming up) is a small price to pay for ensuring so many innocents don’t have their lives and liberty and futures taken away by mistake. Isn’t it? And simultaneous lineups are only as effective once you’ve adopted the suggested reforms, including some you didn’t discuss.

This all sounds like another one of those prosecutors thwarting justice in the name of inertia.

My final recommendation to her would to be to allow herself to be receptive to the idea that innocent people do sometimes get convicted, that bad identifications do sometimes cause this, and that there are solutions that can prevent such injustices, can ensure that the cops don’t put the wrong guy in jail, can ensure that the real perp doesn’t remain free to do it again, don’t cost hardly anything, and are easy to institute. And if that’s the case, then why the heck are you so opposed to it? Do you want those preventable injustices to occur?

Because that’s kinda how you came off.

Correct, but Wrong: SCOTUS on Unreliable Eyewitness Identification

Thursday, January 12th, 2012

In this Information Age, it is hard to grasp sometimes that everybody does not know everything. And yet it is so. It is common knowledge, for example, that dinosaur fossils are the bones of creatures that lived scores of millions of years ago, that terrorist hijackers flew planes into the World Trade Center and the Pentagon, and that eyewitness identification testimony is statistically as reliable as a ’78 Chevy. And yet there are tons of people who sincerely believe that fossils are just a few thousand years old, that the U.S. government conducted 9-11, and that an eyewitness I.D. is the be-all-and-end-all of Truth.

Actually, it’s not fair to lump the I.D. believers in with 9-11 conspiracy theorists, Genesis literalists, truthers and the like. The others are sort of fringe-y. But if you put 12 ordinary citizens in a jury box, of good intelligence and sound common sense, and the victim points dead at the defendant and says “there is no doubt in my mind, THAT is the man who raped me…” you can almost hear all twelve minds slamming shut. They’ve heard all they need to hear. So far as they’re concerned, this case is over.

This despite the fact that study after study after study reinforces the fact that eyewitness testimony sucks.

And innocent people go to jail — or worse — because of it.

So you can imagine how keen the legal world was to get the Supreme Court’s decision in Perry v. New Hampshire, which came down yesterday. Perry, identified by an eyewitness as someone she’d seen breaking into cars, argued that Due Process required a judicial hearing on the reliability of that testimony before it could be admitted at trial.

Which was the exact wrong thing to argue.

Due Process requires that the government makes sure that it does not do things that make its identification procedures unreliable. It does not require that a judge do the jury’s job. Particularly when that job — weighing the reliability of a given bit of testimony — is incredibly fact-specific.

And especially given all the evidence of all the various factors that go into making eyewitness testimony unreliable — racial differences, time lapse, focus of attention, lighting, familiarity, stress, presence of a weapon, etc. — what judge in his right mind is going to want to be the one deciding whether this particular eyewitness’s memory is good enough?

So it’s hardly any surprise that the Supreme Court balked at Perry’s Due Process argument. By a vote of 8-1 (former prosecutor Sotomayor as the lone dissenter, none better to know the power of the EW ID) the Supremes held that, unless law enforcement is alleged to have gotten the I.D. under unnecessarily suggestive circumstances, there’s no Due Process issue and certainly no reason for a pre-trial hearing on reliability.


No, what Perry could have argued for is either (more…)