Puerto Rico Association of Criminal Defense Lawyers

Eyewitness Identification Reform

CrimProf Blog reports here on a column in the December issue of The Champion by NACDL President Barry Scheck on changes on the horizon that will go a long way towards avoiding mistaken eyewitness identifications.

"Soon, the single greatest cause of the conviction of the innocent -- mistaken eyewitness identification -- will be significantly redressed by a series of historic reforms: We will see photo arrays and lineups conducted by a blinded examiner (the person running the procedure doesn't know the identity of the suspect); proper admonitions to witnesses that the real perpetrator may not be present; proper selection of fillers so they meet the description of the perpetrator, not the suspect; confidence statements from witnesses at the time of identification in their own words; and sequential presentation at identification procedures with an adequate number of fillers (at least five). Based on strong scientific proof that these reforms substantially reduce error and increase the capacity of police to find the real assailant, courts, legislatures, and prosecutors will adopt them because it's just good law enforcement. But they will also act because there is a constitutional imperative at work: The heart of the Supreme Court's due process jurisprudence in this area is to prohibit systemic practices that unnecessarily increase error.

These reforms will move on three different tracks simultaneously. On one track, state and federal courts will reverse and revise Manson v. Braithwaite, instructing juries that failure to follow procedures that demonstrably reduce error must be held against the prosecution. Similarly, courts at pre-trial hearings will consider expert testimony and assess the taint from improper suggestiveness in light of new scientific evidence. On a second track, where trains are already in motion, police and prosecutors will voluntarily implement these reforms, following the lead of New Jersey, North Carolina, Minneapolis, Boston, Santa Clara (Calif.), and Northhampton (Mass.). And finally, state legislatures and Congress will follow the lead of Illinois, as well as suggestions from the American Bar Association, and enact bills funding pilot projects, research, and training."

This is all very good news indeed.

Important Request from NACDL

I'm including here a request from Barry Scheck, on behalf of NACDL:

If and when the Supreme Court holds that Blakely v. Washington applies to the Federal Sentencing Guidelines (and maybe sooner), Congress may act quickly to pass "corrective" legislation. Some proposals under consideration would make the current sentencing system much worse -- for example, by prescribing a presumptive sentence at the statutory maximum for every offense, with the burden on the defendant to prove mitigating facts to reduce the sentence. To combat a hasty response and to provide a compelling case for sentencing fairness, the NACDL needs to highlight cases where the Sentencing Guidelines have caused disturbing inequity in federal sentencing.

WE NEED YOUR HELP TO IDENTIFY CASES WHERE:

• acquitted and/or uncharged conduct unfairly and significantly increased the sentence;
• extremely dubious evidence was relied upon to significantly increase the sentence;
• relatively low-level participants in a conspiracy were sentenced far in excess of the leaders and organizers of the conspiracy;
• the prosecutor unfairly wielded his or her power by manipulating charges, drug weights or loss amounts for the sole purpose of unfairly increasing the possible sentence; or
• other abuses were caused either by the Guidelines or in the name of the Guidelines.

We are particularly interested in cases involving white-collar or non-violent offenders. You can respond to Kyle O'Dowd, NACDL Legislative Director, at Kyle@nacdl.org.

Please give as much information about these cases as possible, including the district, the docket number, case captions, defendants' names and the lawyers involved. Pleadings, transcripts or decisions (or citations thereto) that highlight the inequity of the case are particularly helpful.

Thank you,

Barry Scheck
President

Now, review some of your cases and see if you have any information that might be responsive to NACDL's request.