On April 5th Ohio Governor Ted Strickland signed a reform bill that will help reduce wrongful convictions and improve the fairness and accuracy of our criminal justice system. Among the measures included are safeguards to improve the eyewitness identification process by requiring police to use a more accurate protocol for administering live and photo lineups. The new protocol reflects the growing awareness that eyewitness evidence is fragile, and much like trace physical evidence must be collected very carefully, or it may become tainted.
Ohio joins a growing trend of states acting to prevent wrongful convictions through implementation of eyewitness identification best practices that are the fruit of decades of scientific research. A handful of states have passed bills that implement or encourage more reliable procedures. Some states, such as California and Texas, have come close, and efforts there continue. Similar legislation has also been introduced in other states from Hawaii to New Hampshire.
This encouraging trend has been a long time coming. The criminal justice system's inertia, combined with skepticism about reform ideas that come largely from scientific researchers rather than law enforcement itself, has made progress slow. Almost without fail, the objections to new procedures are based on worry about the unknown, rather than on experience. Further, some in law enforcement may be concerned that by making changes today they are implicitly admitting that they have been doing things badly heretofore.
Only in recent years, however, have law enforcement leaders been made aware of workable alternatives to traditional procedures. What is finally happening is that law enforcement is modernizing their procedures based on the latest research. It is never easy to change the settled ways of bureaucracies, and law enforcement is no different. With progress in Ohio we are seeing at long last that much needed change is coming.
To remind us of the urgent need to act, we need only look at the victims of eyewitness error that may well have been preventable: Freddie Peacock, James Bain, and Forest Shomberg. They spent years in prison for crimes they did not commit because of erroneous eyewitness testimony, yet none of the states that wrongfully convicted these men have implemented eyewitness reforms.
The reforms passed by the Ohio legislature, which mirror key reforms highlighted in The Justice Project's publication, Eyewitness Identification: A Policy Review, are based on scientific research about practices that lead to eyewitness misidentification. For example having the officer conducting the lineup be unaware of which person in the lineup is the suspect (or a functionally equivalent method) can prevent inadvertent influencing of the witness and thus improve the evidentiary value of an identification. Documenting a witness's degree of certainty at the time of identification can help address the well-documented manipulation of witness confidence due to reinforcing feedback, thus providing jurors with a clear picture of the circumstances of an identification. These and other reforms greatly improve the reliability of eyewitness evidence with only modest changes in procedure.
Fortunately, as more and more jurisdictions implement the needed reforms, their experience provides the definitive response to the worries expressed by those resistant to change. In big cities and small, from New Jersey to North Carolina to Wisconsin, the actual experience of jurisdictions that have implemented reform has demonstrated that it is pragmatic, inexpensive, and most importantly, improves the reliability of evidence in our criminal justice system. Now that we know better, failing to act to implement the reforms we know will reduce wrongful convictions becomes nothing less than reckless indifference.
John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.