Recommendations for Reforming Federal Investigations
Eyewitness Identification Reform
Eyewitness Misidentification is the Leading Factor of Wrongful Convictions
Mistaken eyewitness identifications have contributed to approximately 75% of the 265 wrongful convictions in the United States overturned by post-conviction DNA evidence.30 Inaccurate eyewitness identifications confound investigations from the earliest stages: critical time investigation is lost while police focus on building the case against a misidentified innocent person.
Support Eyewitness Identification Reform Measures
Congress should pass legislation requiring federal law enforcement agencies to adopt and implement eyewitness identification procedures shown by reliable, scientifically-supported evidence to minimize the likelihood of misidentification.31 These measures include:
The requirement that the identification procedure be administered by a blind investigator (i.e., an individual who does not know who the suspect is);
The issuance of instructions to the witness (i.e. a series of statements provided by the administrator of the identification procedure to the witness that deter the witness from feeling compelled to make a selection);
The requirement that a lineup be properly composed (i.e. suspect photographs should be selected that do not bring unreasonable attention to him or her; non-suspect photographs and/or live lineup members (fillers) should be selected based on their resemblance to the description provided by the witness – as opposed to their resemblance to the police suspect);
The requirement that immediately after the eyewitness makes an identification, the witness provides a statement, in her or his own words, that articulates the level of confidence she or he has in the identification made; and
The requirement that an identification procedure be properly documented (i.e. electronically recorded; photographs of lineup members preserved).
The President should issue an executive order requiring the promulgation of federal standards for federal law enforcement agencies – grounded in best practices and scientifically-supported research – with respect to eyewitness identification procedures. The issuance of such an order would also provide much-needed guidance to state law enforcement agencies. Specifically, the executive order should require the adoption and implementation of those eyewitness identification procedures that have been shown by reliable, scientifically-supported evidence to minimize the likelihood of misidentification.
Records of Custodial Interrogations
False Confessions Contribute to Wrongful Convictions
False confessions are a more frequent occurrence than one might think; approximately 25% of the nation’s 265 wrongful convictions overturned by DNA evidence involved some form of a false confession or admission.32
Support the Mandatory Recordation of Custodial Interrogations
Congress should pass legislation that would require federal law enforcement agencies to electronically record all custodial interrogations during the time in which a reasonable person in the subject’s position would consider himself to be in custody. Such legislation should render any un-taped confession inadmissible in court.
The President’s executive order, mentioned above, should require the electronic recordation of all custodial interrogations during the time in which a reasonable person in the subject’s position would consider him- or herself to be in custody. This is the most reliable way to create an objective record of what transpired during the course of the interrogation process.
Preservation of Biological Evidence
The Preservation of Biological Evidence is Integral to the Discovery of Wrongful Convictions
Preserved evidence can help solve closed cases – and exonerate the innocent. Had the evidence been destroyed, tainted, contaminated, mislabeled, or otherwise corrupted, the innocence of the nation’s 265 exonerated individuals would never have come to light.
Fund Measures that Support States’ Preservation of Biological Evidence
In 2004, Congress passed the Innocence Protection Act as part of the larger Justice for All Act (JFAA).33 The JFAA included an incentive to states to enable proper post-conviction DNA testing by providing grants to states with proper policies and practices for the preservation of biological evidence and post-conviction DNA testing. Specifically, JFAA Section 413 awarded funds if states could demonstrate that they had certain procedures for preserving biological evidence and providing access to post-conviction DNA testing. The funds could be awarded in four areas:
DNA Training and Education for Law Enforcement, Correctional Personnel, and Court Officers;34
DNA Research and Development;35
DNA Identification of Missing Persons;36 and
Kirk Bloodsworth Post-Conviction DNA Testing Grant Program (Bloodsworth Program).37
The Bloodsworth Program was the only grant program governed by the JFAA Section 413 innocence incentives that was actually funded in a manner consistent with JFAA intent. Currently, only 23 states meet Section 413 evidence preservation requirements. In order to encourage more states to comply, Congress should reauthorize the Section 413 requirement and appropriate the programs according to JFAA’s original intent.
The Use of Incentivized Testimony
The Use of Incentivized Testimony is a Demonstrated Cause of Wrongful Conviction
A comprehensive study of the nation’s first 200 exonerations proven through DNA testing concluded that 18% were wrongfully convicted, at least in part, on the basis of informant, jailhouse informant, or cooperating alleged co-perpetrator testimony.38 Informant testimony is an undeniably valuable law enforcement tool, but it generally functions in service of only one side of the adversarial system and with little oversight.39
Regulate the Use of Incentivized Testimony
Congress should pass legislation that would regulate the use of incentivized informants by:
Requiring pre-plea and pre-trial hearings that assess reliability and corroborate the content of informant testimony in all cases where informant testimony is intended for use at trial or in connection with a plea agreement;
Requiring that accomplice testimony be corroborated by non-accomplice testimony and/or evidence — both in the grand jury and at trial — before it can be deemed legally sufficient to establish either probable cause or guilt beyond a reasonable doubt;
Approving jury instructions that seek both to educate jurors about the long-established fallibility of informant testimony and the specific factors that may have influenced the testimony in the particular case at hand;
Requiring that the FBI produce FD-209 forms (regarding contacts with informants) pursuant to discovery; and
Establishing a uniform system of state and federal informant registries, through which law enforcement officers would maintain information about informants, as well as a national informant registry.
The President’s executive order should regulate the use of incentivized informants by implementing the procedures listed above.
Crime Scene Comparisons to CODIS and IAFIS
Crime Scene Comparisons Can Exculpate the Innocent and Inculpate the Guilty
In 119 of the nation’s 265 DNA exonerations, the real perpetrator was subsequently identified, many times through the use of the Combined DNA Index System (CODIS).40 In many instances, the person subsequently identified as the real perpetrator committed additional crimes after committing the crime for which an innocent person was convicted.41
As a result, it would be in the interest of justice to compare specific crime scene evidence to CODIS or the Integrated Automated Fingerprint Identification System (IAFIS), the national DNA database system administered by the FBI. Sometimes prosecutors choose not to order such comparisons, and judges have refused to so order, believing that to do so would be beyond their judicial authority. As a result, the lack of a clear grant of authority entitling such comparisons can perpetuate the injustice of a wrongful conviction.42
Compare Crime Scene Evidence to Federal Databases
Congress should pass legislation to enable federal judges to order comparisons of crime scene DNA and fingerprint evidence to relevant databases.
The Executive Branch should clarify, through executive order or other policy guidance, that CODIS and IAFIS administrators should be responsive to judicial orders requesting comparisons of crime scene evidence to the CODIS and IAFIS databases.