Legislature(2011 - 2012)BELTZ 105 (TSBldg)
02/27/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB165 | |
| HB291 | |
| SB200 | |
| SB210 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 165 | TELECONFERENCED | |
| *+ | SB 200 | TELECONFERENCED | |
| *+ | SB 210 | TELECONFERENCED | |
| + | HB 291 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 200-EYEWITNESSES AND LINEUPS
1:49:31 PM
CHAIR FRENCH announced the consideration of SB 200, "An Act
establishing certain procedures related to the identification of
suspects by eyewitnesses to criminal offenses." Speaking as the
sponsor, he said this addresses the way eyewitness evidence is
handled in the state. He paraphrased the following sponsor
statement:
Evidence provided by eyewitnesses is a vital part of
many criminal investigations. According to the
International Association of Chiefs of Police, some
77,000 people nationwide go to trial each year because
eyewitness testimony is arguably some of the most
powerful evidence presented at a trial.
Since 1989, however, DNA technology has resulted in
over 230 exonerations of people who, on average, had
served 12 years in prison, and 75 percent of those
convictions involved misidentifications by
eyewitnesses. When innocent people are convicted, not
only do they suffer an enormous injustice, but the
real perpetrator is never caught and taken off the
street.
Organizations such as the American Bar Association,
The Police Foundation and the National Institute of
Justice have identified procedures that improve the
accuracy of eyewitness identifications. Senate Bill
200 will require law enforcement agencies to adopt
specific procedures for conducting photo and live
lineups. It will require the Department of Public
Safety to create and administer a training program for
law enforcement officers on scientific findings and
the use of appropriate methods when interviewing
eyewitnesses to crimes. I urge your support for this
important step toward ensuring that perpetrators are
caught, and innocent people are screened out during
eyewitness processes.
CHAIR FRENCH said the bill compels a law enforcement agency that
conducts eyewitness identification to adopt specific procedures
that meet specific minimum requirements. This is to provide
flexibility to accommodate the broad range of agencies around
the state. The idea is that before there is a photo or live
lineup, the law enforcement officer shall record a detailed
description of the perpetrator, provided in the eyewitness's own
words. The statement must include information regarding the
conditions under which he or she observed the perpetrator,
including location, time, distance, obstructions, lighting,
weather conditions, visual and other impairments. When possible,
an independent administrator shall conduct the lineup, but when
that is not practical the administrator shall use neutral
procedures. Ideally, the lineup is conducted by an officer who
does not know the identity of the suspect.
CHAIR FRENCH noted that Anchorage attorney John Murtagh sent a
letter to suggest the committee review the eyewitness case of
Tegoseak v. State. It was a felony DWI case where the driver and
passenger switched places. The eyewitness identification
procedures were upheld on appeal but in discussing the case, the
court of appeals described another case that clearly illustrated
the problems of eyewitness identification. He related the
details of a rape case that was aired in a "60 Minutes" story.
The victim identified her rapist in a photograph lineup, a live
lineup and during two separate trials. He was convicted both
times. Ten years after the rape, DNA testing proved that he was
innocent.
The court of appeals commented that it was particularly
troubling that the victim's false memory persisted even after
she knew intellectually that it was inaccurate. The court said
her false memory was clearly the result of the identification
procedures employed during the investigation, and that the legal
tests for establishing the validity of eyewitness identification
procedures needed to be reconsidered.
1:57:23 PM
SENATOR COGHILL asked if there were Alaska statistics regarding
eyewitness identifications that were overturned by DNA testing.
CHAIR FRENCH said the professionals who would testify may have
numbers to offer.
SENATOR PASKVAN commented on the interesting dynamic of human
error in eyewitness identification as well as false confession.
1:59:04 PM
SENATOR MCGUIRE joined the committee.
SENATOR WIELECHOWSKI asked what would happen if the law
enforcement officer didn't record all the relevant information
that was called for in Section 1. For example, what would happen
if the officer neglected to record the weather conditions?
CHAIR FRENCH said he did not believe that would automatically
exclude the evidence.
SENATOR WIELECHOWSKI asked two questions; how was independent
administrator defined and what would the procedure be in rural
settings.
CHAIR FRENCH said the term was defined on page 2, lines 19-21,
and it basically means an officer who was involved in the case.
Page 2, lines 3-6, give guidance when that is impracticable,
stating that a neutral procedure is to be used.
2:02:09 PM
STEPHEN SMITH, Deputy Chief of Police, Anchorage Police
Department (APD), Anchorage, AK, cautioned against placing the
new eyewitness identification proceedings in statute. He said
that APD's procedures were not unlike what was suggested in the
bill, but Sec. 12.50.300(a)(1) gives more detailed guidance than
the APD procedures for a photo lineup. He agreed with Senator
Wielechowski's point and expressed appreciation that the sponsor
said that leaving out some of the information wouldn't
automatically nullify the identification. Rather, it would
create opportunity for attack by the defense. He continued that
the requirement of an independent administrator would impose a
minor burden. He concluded that APD could make this work, but
had reservations about rooting reform of this nature in state
law at this point.
SENATOR PASKVAN asked if departments across the state used
different identification procedures for photo lineups.
DEPUTY CHIEF SMITH replied he wasn't aware of an articulated
statewide standard, so there was the potential for photo lineups
to be administered in different ways.
CHAIR FRENCH asked if APD had written procedures for how to
conduct field sobriety tests.
DEPUTY CHIEF SMITH said yes.
CHAIR FRENCH asked if an officer sometimes forgets one of the
steps in conducting a field sobriety test.
DEPUTY CHIEF SMITH agreed that did happen.
CHAIR FRENCH asked if the test is admitted and cross examined at
trial.
DEPUTY CHIEF SMITH said yes and it would probably work the same
way for photo lineups.
CHAIR FRENCH said that was his belief, but he'd check with DOL.
2:06:46 PM
SENATOR WIELECHOWSKI asked if field sobriety tests were in
statute or policies enacted by the police department.
DEPUTY CHIEF SMITH replied he didn't believe they were in
statute, but the National Highway Traffic Safety Administration
(NHTSA) promulgated the standardized field sobriety test (SFST),
and that federal model had been adopted by most states.
CHAIR FRENCH reiterated his intention to find out if procedures
that were set in statute and not followed would automatically
lead to exclusion of the evidence, or if it would be an area of
cross examination.
SENATOR WIELECHOWSKI asked if the procedures laid out in Section
1 appeared to be reasonable.
DEPUTY CHIEF SMITH replied APD already asks different facets of
the information that's listed so it was reasonable.
2:09:22 PM
QUINLAN STEINER, Director, Public Defender Agency, Department of
Administration (DOA), stated that there was a growing body of
evidence that eyewitness testimony was not as reliable as
previously thought. There are exonerations and also studies
establishing the ease with which misidentification occurs. With
regard to the concern that the requirements were too specific
and might cause the identification to get thrown out, he pointed
out that these types of things were subject to cross examination
now. By following these procedures, it would be unlikely to get
a finding that would cause an identification to be thrown out.
That is the point of establishing a standard, he said.
2:11:30 PM
CHAIR FRENCH asked if he was aware of any eyewitness
identification cases in Alaska that were overturned.
MR. STEINER said not specifically, but he was aware of cases
where eyewitness identification was called into question and of
cases of false confession. Anything that moves toward
eliminating mistakes, improves the outcomes of the criminal
justice system, he stated.
2:12:25 PM
BILL OBERLY, Executive Director, Alaska Innocence Project,
stated that eyewitness reform was very important to the project,
primarily because these identifications were the leading
contributor to wrongful convictions. He agreed with the
sponsor's statistics on DNA exonerations and added that social
science research had demonstrated that the human mind is unlike
a tape recorder. As with any crime scene evidence, eyewitness
memory is subject to contamination and can lead to wrongful
conviction. Although the court of appeals in 2009 recognized the
need to institute best practices in identification procedures
when it ruled on the Tegoseak case, an informal review - and
later a freedom of information request - indicated that in 2011
most law enforcement agencies in the state had no procedures at
all for eyewitness identification.
Extensive social research established six procedures that are
being instituted nationwide to make eyewitness identification an
effective tool for law enforcement: 1) a proper lineup
composition; 2) instructions to the witness; 3) double blind
administration of the test; 4) sequential presentation; 5)
confidence statements; and 6) recording the procedure.
MR. OBERLY highlighted a potential error on page 2, line 5. It
indicates that simultaneous presentation is the most neutral
administration of a lineup, when it is actually sequential
presentation that is the most effective presentation.
He said the Alaska Innocence Project views SB 200 as a starting
point for bringing law enforcement practices in line with
current research on eyewitness identifications. It will help in
prosecutions of those who commit crimes and prevention of
wrongful convictions. Anticipating a question, he mentioned the
DNA testing law that was enacted two years ago, and estimated
that in another year or so it would provide examples of wrongful
eyewitness identifications.
2:18:40 PM
SENATOR COGHILL asked how eyewitness identifications were most
typically prejudiced right now.
MR. OBERLY said the research shows that when the investigator
knows the identity of the suspect, that information is
intentionally or unintentionally signaled to the witness. He
stressed the importance of eliminating the possibility of that
type of situation.
SENATOR COGHILL asked if anything in the bill would make it less
intimidating to a victim.
MR. OBERLY said the victim of a crime will probably always find
the eyewitness identification intimidating. He added that
because the procedure runs in the background, the eyewitness
probably wouldn't know if the lineup was suggestive or had these
improvements.
2:22:06 PM
JOE AUSTIN, member of the board of directors, Alaska Innocence
Project, Anchorage, AK, said he was a retired law enforcement
officer and had done lots of lineups during his career. He
stated support the bill, but suggested that the minimum number
of filler photographs should be five. The normal practice in his
experience was to present six photographs that may or may not
include the suspect.
CHAIR FRENCH observed that it was consistent with current
practice and wouldn't be a burden.
2:23:26 PM
BARB BRINK, president of the board of directors, Alaska
Innocence Project, said she was a public defender for the state
for 23 years and was currently working for the federal public
defender. She stated support for everything that Mr. Oberly
said. She offered statistics to confirm the prevalence of
eyewitness misidentifications and to emphasize why these reforms
are so critical.
She elaborated on the importance of the six procedures that Mr.
Oberly mentioned earlier that make eyewitness identification a
more effective tool for law enforcement. These were proper
lineup composition, instructions to the witness, double blind
administration of the test, sequential (not simultaneous)
presentation, confidence statements, and recording the
procedure.
2:32:14 PM
SENATOR WIELECHOWSKI asked if location was an issue in
eyewitness identifications. He cited an example of an assault
case in a small Alaskan town and eyewitness identification in
the field that illustrated a weighted identification.
MS. BRINK confirmed the example was highly suggestible as
opposed to the bill that suggests the procedure takes place in a
quiet location outside the trauma of the moment. The latter is
obviously a superior method, she said.
CHAIR FRENCH reviewed some of the supporting documents in the
packet. One was a training key from the International
Association of Chiefs of Police that quoted from the Supreme
Court case United States v. Wade. It said the influence of
improper suggestion on witnesses was perhaps responsible for
more errors than all other factors combined. Another was from
the Ramsey County district attorney's office that pointed out
that nobody in law enforcement has any interest in convicting
the innocent.
ANNE CARPENETI, Assistant Attorney General representing the
Criminal Division, Department of Law (DOL), introduced herself.
2:36:00 PM
SENATOR WIELECHOWSKI asked if DOL thought that failure to follow
the procedures would cause the identification to be thrown out
or if it would go to the weight of the evidence. He also asked
if the administration had a position on the bill.
MS. CARPENETI opined that it would go to the weight of the
evidence, and said she was pleased that the committee was
specifically discussing the point. She then suggested on page 2,
lines 2-3, clarifying that the mandatory language was either or.
Either a blinded administrator would conduct the lineup or the
administrator would use a neutral procedure.
CHAIR FRENCH agreed with the suggestion, and added that he also
intended to look into whether it was better to use "sequential"
rather than "simultaneous" on page 2, line 5.
SENATOR PASKVAN commented that it would seem to be fertile
ground for defense counsel if a police department didn't have a
standard procedure for administering eyewitness identifications.
MS. CARPENETI agreed it would be brought into question and added
that these things were also the subject of pretrial motions.
SENATOR PASKVAN commented on the likelihood of an ineffective
assistance of counsel claim if the defense didn't inquire about
the fact that their client was misidentified when the department
didn't have a standard procedure.
MS. CARPENETI said the eyewitness testimony would probably be
challenged if the defense was that it was a misidentification.
SENATOR WIELECHOWSKI expressed a desire for more certainty as to
whether it would go to the weight of the evidence or get the
identification thrown out if an officer forgot to record the
weather, for example. He questioned how a court would interpret
it.
CHAIR FRENCH said he would have legislative legal draft a memo
on that point.
MS. CARPENETI suggested that it could also be addressed in the
bill.
CHAIR FRENCH said he'd inquire as to the best approach.
2:40:48 PM
WALLY TETLOW, President, Alaska Association of Criminal Defense
Lawyers, stated strong support for SB 200. The clear purpose of
the bill is to strengthen identification procedures used by law
enforcement agencies, thereby minimizing wrongful convictions.
He highlighted that the statistics show that 75 percent of
convictions that are reversed after DNA work is done, were the
result of misidentifications. Improving identification
procedures will not only minimize wrongful convictions, but also
strengthen convictions of the responsible parties.
2:42:48 PM
CHAIR FRENCH announced he would hold SB 200 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 165 Version E.pdf |
SJUD 2/27/2012 1:30:00 PM |
SB 165 |
| SB 165 amendment E.1.pdf |
SJUD 2/27/2012 1:30:00 PM |
SB 165 |
| SB 200 Support Document Police Chief Magazine.pdf |
SJUD 2/27/2012 1:30:00 PM |
SB 200 |
| SB 200 Support Document Train the Trainer Bulletin.pdf |
SJUD 2/27/2012 1:30:00 PM |
SB 200 |
| SB 200 Support Document Training Key Assoc of Chiefs of Police.pdf |
SJUD 2/27/2012 1:30:00 PM |
SB 200 |
| SB 210 Sponsor Statement.pdf |
SJUD 2/27/2012 1:30:00 PM |
SB 210 |
| SB 200 Sponsor Statement.pdf |
SJUD 2/27/2012 1:30:00 PM |
SB 200 |
| SB 210 version M.pdf |
SJUD 2/27/2012 1:30:00 PM |
SB 210 |
| SB 210 Supporting Documents.PDF |
SJUD 2/27/2012 1:30:00 PM |
SB 210 |