Conference examines a criminal justice system ripe for reform
By Maria Iacobo
Countless television and film dramas on the legal system vividly and accurately demonstrate how eyewitness identification evidence can be central to a criminal trial.
However, the validity of eyewitness testimony increasingly is being called into question by key members of the criminal justice system. Faced with constant reminders of wrongful convictions, the legal system is examining its own limitations and how reforms can be implemented.
Prof. Dan Simon encourages professional discourse on the criminal justice system. |
Given this decisive moment, USC Gould Prof. Dan Simon convened a conference on June 7 to explore the strengths and weaknesses of the U.S. criminal justice system. The event drew an impressive gathering of legal scholars, practicing attorneys, federal, state and local prosecutors, and state supreme court justices. Simon, the Richard L. and Maria B. Crutcher Professor of Law and Psychology, last year published the book “In Doubt: The Psychology of the Criminal Justice Process” (Harvard University Press).
“It was really important to get a multitude of opinions on the panels and get the dialogues going with people from the various branches of the legal system,” Simon told the audience.
Jury instruction revisions
New Jersey Supreme Court Chief Justice Stuart Rabner delivered the morning keynote address recounting how his court has wrestled with the issue of eyewitness identification evidence. In 2011, Rabner authored the opinion, State v. Henderson, in a unanimous decision finding that the legal framework analyzing the reliability of eyewitness identification evidence, which had been in place for decades in New Jersey, the federal system and nearly every state in the nation, needed to be revised.
“We did so after looking at an extensive record of social science studies and expert testimony which demonstrated that human memory is malleable, that it can be altered and diluted by an array of variables which can lead to misidentifications,” Rabner said. “That led the court to make some changes that are now law in New Jersey.
“First – a change to the legal framework for pre-trial hearings to determine whether eyewitness identification evidence will be admitted directing judges to consider a broad array of factors that can affect reliability. Second – requiring enhanced jury charges that are tailored to the facts of a particular case in order to enable jurors to better understand the evidence that they will hear and be able to determine how much weight to give it.”
Jury instructions were expanded to address variables related to how law enforcement officers conducted identification events as well as factors that affect human memory.
“It’s no longer accepted that memory functions like a video recording where all you need to do is ask a witness months later, where you push a button and out will come what was frozen in mind in precisely the way the witness saw it,” Rabner said. “Instead, social scientists have demonstrated that there are a number of variables that can effect, dilute and distort memory.”
Several scholars discussed their research in other areas including criminal behavior and recidivism, “second generation” forensic evidence and retaining the death penalty across much of the U.S. while most democratic countries have abolished its practice.
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Criminal law experts convened to exchange ideas on how to improve the criminal justice system, including the validity of eyewitness testimonies. |
Harmless error permeates criminal procedure
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Goodwin Liu comments on |
Goodwin Liu, associate justice for the California Supreme Court, delivered the afternoon keynote address in which he explored the doctrine of harmless error, stating that the integrity of the criminal justice system “lies in accurately determining the guilt of the accused.
“It is very difficult to overstate the long shadow cast by harmless error doctrine on the entirety of constitutional criminal procedure – the formalities of warrants, of confrontation, Miranda, of trial by jury – are all, in some sense, subordinate to a dispositive functional inquiry concerning the fundamental integrity of the judicial proceedings as a whole.”
John Van de Kamp, former California attorney general, recounted his experiences as chair of the California Commission on the Fair Administration of Justice which, in 2006, was tasked with studying the reasons for wrongful convictions and offering recommendations to reform the state’s policies. Van de Kamp reported the commission reached “virtual unanimity as to what should be done” on wrongful convictions – a surprising outcome given the diverse makeup of the commission.
“Yet what has happened so far at the legislative level until now: virtually nothing,” Van de Kamp said.
According to Van de Kamp, bills to move their recommendations forward have either been rejected in the legislature or – if they made it to the governor’s desk – vetoed by the governor because law enforcement has not been convinced.
“My own view is that science and best evidence needs to catch up with the prosecutorial and law enforcement communities and vice-versa,” Van de Kamp said.
The conference also examined the work of district attorney offices that actively re-open cases to determine whether individuals have been wrongfully convicted. Two of the country’s leading figures delivered powerful presentations that underscored the unique nature of this effort.
Solutions
Russell Wilson II, chief of the Conviction Integrity Unit, a division of the Dallas County district attorney’s office, began his talk recounting the brutal attack of a woman in 1983 and the subsequent wrongful conviction of two men for the crime. While the audiences’ sympathies initially lay with the victim, they were extended to the two innocent men who were eventually exonerated with the use of DNA evidence.
Barry Scheck shares his suggestions on how to combat problems in the justice system. |
“[The case] embraces a lot of the things we’re trying to balance as a district attorney’s office, as a society and as a [judicial system],” Wilson said. “[Overturning the conviction] reaffirmed our sense of justice.
“What happened to Mary shouldn’t have happened. But what happened to [the men wrongfully convicted] shouldn’t have happened.”
Wrongful convictions are a result of systemic defects in the criminal justice system as opposed to rare events, according to Barry Scheck, co-founder of The Innocence Project. Scheck discussed the value of the conviction integrity units for combatting the “cognitive problems” in the court system. These units are relatively new additions in law enforcement and Scheck said prosecutors’ offices nationwide are increasingly interested in establishing them.
“While I think these innocence commissions have been very good in terms of trying to move the ball forward and improving the system for everybody, getting them to be a substitute for our courts when you’re reviewing instances of miscarriages of justice is going to be a heavy lift realistically,” Scheck said.
“I think of all the structural changes we’ve had in the [legal] system, [conviction integrity units] may be the most important one. I think this one will really work.”