Posts Tagged ‘Texas’

What do Texas and Connecticut have in common?  No, New Englanders have not suddenly taken to wearing cowboy hats and boots.  As of August 23, both states are among those recently moving toward better practices in handling eyewitness identification and testimony.

In my last post, I discussed how a new Texas requiring some science-based identification practices would take effect on September 1.  This had, of course, happened in a state in which uncovering wrongful convictions seemed almost routine.  Now, Connecticut’s Supreme Court has moved that state a little closer to the proper ways to use and think about eyewitness identification.

As reported in an article in the August 23 Hartford Courant, the state’s Supreme Court announced that based on the current state of science in eyewitness identification, it was throwing out old precedents and would now allow the defense to call an expert witness in any case in which eyewitness identification played a significant role.  The expert’s testimony would be appropriately limited.

An expert should not be permitted to give an opinion about the credibility or accuracy of the eyewitness testimony itself; that determination is solely within the province of the jury. Rather, the expert should be permitted to testify only about factors that generally have an adverse effect on the reliability of eyewitness identifications and are relevant to the specific eyewitness identification at issue.

Basing its decision on what it called “a near perfect scientific consensus,” the court said that the research “convincingly demonstrates the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification.”

Allowing expert testimony does not mandate a change to police procedures, the way that Texas and some other jurisdictions, like New Jersey, have.  But it is a step in the right direction.

Tell me again: why can’t other states and police departments do these things?  Why do they continue to resist the science?




Texas leads the nation in wrongful convictions.  That’s why it’s interesting to find some of the state’s law enforcement leaders no longer mouthing the tired old tropes about why they can’t change eyewitness identification procedures.  The state mandated some changes with a new law, which takes effect on September 1.    So now some members of law enforcement in Texas say: it’s important, and we’re going to get it done.

A bit of background: last fall, two state senators introduced a bill requiring some basic science-based reforms in eyewitness identification procedures.  The bill passed, and on September 1, police agencies conducting eyewitness identifications must do so using a sequential process (showing members of a lineup or photos of a lineup to a witness one person at at time).  Police also must hold “blind” lineups, by having the lineup or pictures shown to the witness only by someone not involved in the investigation.  And each agency must adopt a written policy on eyewitness identification. The bill requires other reforms, too.

When changes like this are proposed, there is usually wide resistance by police and prosecutorial leadership: these things will cost too much, be too logistically complex, and will be far too difficult for small agencies.

This is what made an article I saw in the Corpus Christi Caller-Times so striking.  The piece concerned training for law enforcement on the new eyewitness procedures, conducted by Nueces County District Attorney Mark Skurka.  According to the article, Mr. Skurka told about eighty officers  that “the changes came about because of an increase in exonerations due to DNA evidence.  Law enforcement and prosecutors previously relied mainly on eyewitnesses, he said, but that practice caused many wrongful convictions.”  This made the reforms necessary, Skurka said, and “whether you have a two-man agency in Driscoll or a 150-man agency in Corpus Christi,” every agency will have to get on board.

Perhaps there’s nothing more to this than the fact that the legislature required the changes.  I have no idea whether D.A. Skurka  believed or articulated these ideas about wrongful convictions and eyewitness testimony before the legislation or not.  But maybe that isn’t the point.  Once there is a requirement in the law, he has to move his people toward science-based best practices.   So, for advocates of change, making allies in the state legislatures to move these practices into law means everything.  (See Chapters six and seven of Failed Evidence, available next month.)