Th The Bom Bomber r on on t the Roof oof. www.opd.ohio.gov - - PowerPoint PPT Presentation

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Th The Bom Bomber r

• n
• n t

the Roof

• of.

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Th The Lineup

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Th The Identific tification

Office ce of

• f the O

Ohio P Public D c Defender

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Eyewitness ss Identification: M Myths, Sc Science, a and Stra rategy

Patrick Clark Assistant State Public Defender, Appeals & Postconviction Section

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Why Eyewitness Identification Matters, Period.

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Why E Eyewitnes ess Iden entification Matter ers t to M Me. e.

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What J Jurors Think W When They H Hear an Eyewitness T Testify…

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Myths ab abou

• ut E

Eyewitness I Identif ificatio ion.

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Myths ab abou

• ut E

Eyewitness I Identif ificatio ion.

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Myths ab abou

• ut E

Eyewitness I Identif ificatio ion.

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When en y you c challenge e the e witness, s, but n not t the e myths… s…

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Case S e Stu tudy: R Ronald ld C Cotton a and J Jen ennif ifer T Thom

• mpson

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Mem emory i is a Con

• nstructiv

tive P Proc

• cess.

Memory is a constructive process.

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Encoding: g: h how w we allocate o

• ur a

atten ention.

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Stor

• rage: Hol

Holding i inform rmati tion in ou

• ur m

memory to

• ac

access l later.

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Retri trieval: Th The p proc

• cess of
• f regaining ac

access t to

• a

a memory.

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Variables that “ “can a affect ct and dilute m memory…over w which ch the legal system has n no control.” State v e v. Hender erson, 2 27 A A.3d 872 ( 72 (N. N.J. 2 2011) 011). Sci cience ce: Es Estimator V Variables C Can I Impact ct the Reliability of a an Identificati tion

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Estimator

• r V

Var ariab able: e: D Distan ance ( e (134 f feet)

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Estimator

• r V

Var ariab able: e: D Distan ance ( e (100 f feet)

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Estimator

• r V

Var ariab able: e: D Distan ance ( e (5 feet)

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Weap apon

• n

Focu

• cus.

s.

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Estimator V r Var ariab able: Cr Cros

• ss-racia

ial id l identific ificatio ion

“Own race bias describes the phenomenon in which faces of people of races different from that of the eyewitness are harder to discriminate (and thus harder to identify accurately) than are faces of people of the same race as the eyewitness.” National Academies of Sciences, Identifying the Culprit: Assessing Eyewitness Identification (2014)

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Estimator

• r V

Var ariab able: e: S Stres ess

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Variables that “ “can a affect ct and dilute m memory…which are w within t the contr trol o

• f

f th the criminal justi tice s system.” State v e v. Hender erson, 27 , 27 A A.3d 3d 872 ( 72 (N. N.J. 201 011) 1). Sci cience ce: S System V Variables C Can Impact t the Reliability of an Eyewitn tness I Identificati tion

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“The p pract ctice ce o

• f showing suspects s

singly t to persons f for t the purpose

• f i

identification, a and n not a as p part o

• f a

a lineup, has b been w widely condemned.” Sta tate te v

• v. Broom, 40

0 Ohio S St.3d 3d 2 277 ( 77 (198 988) 8). System V Variable: S Show U Ups a are Suggestive.

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System V Variable: L Lineups c conduct cted w with a non-blind administrator m may b be suggestive.

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The d double-blind l lineup administration is “the s single m most important ch charact cteristic t c that should a apply t to w witness identification p proce cedures.” Henderson at * *69. 69. System V Variable: L Lineups c conduct cted w with a non-blind administrator m may b be suggestive.

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“Prov

• viding

g instruction

• ns t

to e eyewitnesses helps t them understand t the r role of t the identification p proce cedure i in the investigative p

• process. I

It also

• helps

decr crease t the pressure w witnesses m may feel t to make a a select ction, w which ch has been sh shown to contribute t to misidenti tification.”

• Innoce

cence ce P Project ct Eyewitness Iden denti tifi fication Res esource G Gui uide, de, 2 2012. System V Variab able: L Lineup instructions m matter.

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System V Variable: F Filler b bias cr creates a a funct ctionally s smaller l line up.

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System V Variable: F Filler b bias cr creates a a funct ctionally s smaller l line up.

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System V Variable: C Confidence assessment c can be probative a at initial identification, b but only t then.

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R. R.C. 2933 2933.83.

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R. R.C. 2933 2933.83.

Unless otherwise impracticable:

• Double blind or blinded lineup;
• Record of immediate confidence

assessment;

• Provide written information about lineup

composition

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Inves estigation a and Pres eser ervation

• n o
• f Eviden

ence.

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Notice t e to Pres eser erve I e Iden entification

• n Eviden

ence. e.

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Were the procedures impermissibly suggestive?

Suppres ession Hea earings gs: T The e Manson

• n Tw

Two-Step ep.

No? The identification is admissible. Yes? Balance effects of suggestion against “reliability factors” and suppress if there is a “[s]ubstantial probability of an irreparable misidentification.”

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1) Requires a a showing o

• f State a

act ction.

Suppres ession Hea earings gs: I Issues es w with the e Manson

• n Te

Test.

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1) 1) Requires a a showing o

• f state a

act ction. 2) 2) The reliability f fact ctors d don’t a act ctually e ensure r reliability.

Suppres ession Hea earings gs: I Issues es w with the e Manson

• n Te

Test.

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1) 1) Requires a a showing o

• f state a

act ction. 2) 2) The r reliability fact ctors incl cluded i in the t test d don’t a act ctually ensure r reliability. 3) 3) The t test i is n not e explicitly i incl clusive o

• f fact

ctors that s soci cial sci cience ce i identifies a as impact cting r reliability.

Suppres ession Hea earings gs: I Issues es w with the e Manson

• n Te

Test.

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Suppressi ssion H Hea earings: gs: Henderson

1) “Manson…does not adequately meet its stated goal.” 2) “To obtain a pretrial hearing [that considers the reliability of an identification after weighing all system and estimator variables], a defendant must present some evidence of suggestiveness.” 3) Remedies include suppression or tailored jury instructions.

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State v. Lawson, 291 P.3d 673 (Ore. 2012). An approach based on the rules of evidence, not the Due Process Clause.

Suppressi ssion H Hea earings: gs: T The e Oreg egon W Way.

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State v. Lawson, 291 P.3d 673 (Ore. 2012). An approach based on the rules of evidence, not the Due Process Clause.

1) A pretrial motion to exclude by defendant places burden on State to establish all preliminary facts necessary for admissibility

Suppressi ssion H Hea earings: gs: T The e Oreg egon W Way.

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State v. Lawson, 291 P.3d 673 (Ore. 2012). An approach based on the rules of evidence, not the Due Process Clause.

1) A pretrial motion to exclude by defendant places burden on State to establish all preliminary facts necessary for admissibility. 2) Burden shifts to defendant to demonstrate that probative value of identification is substantially

• utweighed by the danger of prejudice or

misleading the jury.

Suppressi ssion H Hea earings: gs: T The e Oreg egon W Way.

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Manson Factor Science Opportunity to View 1) Stress 2) Gun Focus Degree of attention 1) Stress 2) Gun Focus Certainty/confidence Timing of when the confidence assessment done. Time between crime and confrontation 1) Opportunities for contamination. 2) Poor encodingless to store

Supp uppress ession H Hea earings: U Using R R.C. 2 293 933.83 to s show state a e action under Manson.

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Suppressi ssion H Hea earings: gs: Ge Get t an Ex Expert.

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Suppressi ssion H Hea earings: gs: Ge Get t an Ex Expert.

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Suppressi ssion H Hea earings: gs: T The e Sad Rea eality.

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Trial: A Addres ess t the e Mised educati tion o

• f the

e Jury y Pool.

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Theory Outcome

The poor, crying, shaken victim of a brutal home invasion is lying because she’s a liar.

Winning C g Case e Theo eories es N Need eed An Assist f t from t the e Scien ence

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Theory Outcome

The poor, crying, shaken victim of a brutal home invasion is lying because she’s a liar. Your client goes to prison, and we’re in appeals and post- conviction land.

Winning C g Case e Theo eories es N Need eed An Assist f t from t the e Scien ence

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Theory Outcome

The eyewitness was unable to make a reliable identification because she was stressed by the presence of a gun and trying to make a cross-racial identification in a very scary home invasion.

Winning C g Case e Theo eories es N Need eed An Assist f t from t the e Scien ence

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Theory Outcome

The eyewitness was unable to make a reliable identification because she was stressed by the presence of a gun and trying to make a cross-racial identification in a very scary home invasion. Depends...do you have the tools to help the jury understand why weapon focus, stress, and cross-racial identification matter?

Winning C g Case e Theo eories es N Need eed An Assist f t from t the e Scien ence

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Theory Outcome

The police elicited an unreliable identification from a shaken eyewitness when they presented her with a biased line-up that was conducted by the lead investigator in the case who already determined that my client was responsible.

Winning C g Case e Theo eories es N Need eed An Assist f t from t the e Scien ence

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Theory Outcome

The police elicited an unreliable identification from a shaken eyewitness when they presented her with a biased line-up that was conducted by the lead investigator in the case who already determined that my client was responsible. Depends…do you have the tools to help the jury understand system variables?

Winning C g Case e Theo eories es N Need eed An Assist f t from t the e Scien ence

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Theory Outcome The poor, crying, shaken victim of a brutal home invasion is lying because she’s a liar. Your client goes to prison, and we’re in appeals and post- conviction land. The eyewitness was unable to make a reliable identification because she was stressed by the presence of a gun and trying to make a cross-racial identification in a very scary home invasion. Depends...do you have the tools to help the jury understand why weapon focus, stress, and cross-racial identification matter? The police elicited an unreliable identification from a shaken eyewitness when they presented her with a biased line-up that was conducted by the lead investigator in the case who already determined that my client was responsible. Depends…do you have the tools to help the jury understand system variables?

Winning C g Case e Theo eories es N Need eed An Assist f t from t the e Scien ence

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OBJECT t to

• identi

tificati tions that ar t are mad ade i in c cou

• urt f

t for

• r t

the f first t time me.

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Cr Cros

• ss-Examination of the

e Eyewitnes ess: M Modes est G Goals.

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Cross-Examination of

• f the C

Cop: R R.C. 2 2933.83 i is your f friend.

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Cross-Examination of

• f the C

Cop: R R.C. 2 2933.83 i is your f friend.

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• If the identification procedure was

done:

• In a non-blinded way
• Without an assessment of confidence
• Without a record of the data required by

statute.

Cross-Examination of

• f the C

Cop: R R.C. 2 2933.83 i is your f friend.

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Cal all an an Exp xpert?

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Req equest t Spec ecialized J Jury I Instr tructi tions. s.

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• State v. Rac; State v. Pettiford; State v. Mabberly:

Spec ecialized ed jury i y instructi tions in the e Sec econd D Dist.

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Conclusi sion: T Tha hat m t man shot my b brother.

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Conclusion: T That m man robbed ed m my grandmoth ther.

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Co Conclusion: Even en Cl Claren ence e Da Darrow c can’t win w with c cross ss a alone.

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But w with a a little le as assist f from

• m t

the s science…

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Conclusion

• n.

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Patrick Clark Office of the Ohio Public Defender 250 East Broad Street, Suite 1400 Columbus, OH 43215 614-466-5394 Patrick.Clark@opd.ohio.gov www.opd.ohio.gov

Co Contact I Info