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A Checklist and Brief Analysis of Recent Innocence Reforms Adopted by State Law – They Involve Eyewitness Identification, Forensic Science, False Confessions, Snitches, and Innocence Commissions

Robert J. Norris, Catherine L. Bonventre, Allison D. Redlich, and James R. Acker
“Than That One Innocent Suffer”: Evaluating State Safeguards Against Wrongful Convictions.  Albany Law Review 74(3):1301-1364 (2011)

This useful article describes state-level reforms stimulated by innocence movement research. It lists the reforms in general terms, the states that adopted them, the year adopted, and reform variations. Some reforms are expansive and others minimal.

Eyewitness identification reforms include recommendations to conduct“blind” lineups – the administrator does not know who the suspect is; instructing witnesses that the perpetrator may or may not be present in the lineup; selecting fillers that fit the witness’s description; taking a witness confidence statement; sequential (one-at-a-time) rather than simultaneous administration; and videotaping.  Some or all of these reforms have been adopted by ten states, beginning with New Jersey in 2001 and most recently by Vermont in 2011.  Some states have simply set up a task force to identify best practices. Others have mandated changes by legislation.  North Carolina passed the most comprehensive eyewitness identification reform law in 2008.

 Forensic science error.  Eleven states created permanent forensic science oversight commissions by statute and two by the Attorney General’s authority.  They usually include representatives from law enforcement, prosecution, defense attorneys, forensic scientists, academics, and medical doctors. Their powers vary.  The New York State Commission on Forensic Science makes laboratory accreditation mandatory, while the Minnesota Forensic Laboratory Advisory Board is empowered only to “encourage” forensic laboratories to become accredited.

False confessions. The most popular recommendation is to videotape the entire custodial interrogation, with a camera focus equally on the suspect and interrogator.  Nineteen states addressed this. The first, by Alaska’s Supreme Court, imposed a recording requirement under the state constitution (1985). Minnesota’s Supreme Court required recording (1994) under its “supervisory power to ensure the fair administration of justice.”  Most videotaping requirements are mandatory only “whenever feasible.”  Some states’ legislation requires videotaping for interrogation of all felonies, (Montana, Indiana), homicides (Illinois), or violent crimes (Washington, D.C.).

False informant testimony, or jailhouse snitches. Four reform proposals require prosecutors to investigate and disclose factors to the defense relating to an informant’s anticipated testimony including deals made in return for the testimony, expanding the judge’s role in screening informants before trial, requiring corroboration evidence to the informant’s testimony, and giving juries “cautionary instructions” warning them about the risks of informant testimony.  Four states require cautionary instructions (California, Connecticut, Montana, Ohio), three (Illinois, Nebraska, and Oklahoma) require enhanced discovery, and Nevada requires pre-trial reliability hearings.

Nine states established eleven innocence commissions. Eight were ad hoc study commissions to review the state’s criminal justice system as a prelude to making general error-reduction recommendations. Three established permanent commissions. Thirty-four states and the District of Columbia have addressed at least one reform area while sixteen states have not addressed any. Of the thirty-five reform jurisdictions, sixteen have enacted reforms in only one area. Illinois has enacted reforms in four areas. 

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