(1) Require all interrogations to be recorded prior to being admissible in felony cases. People falsely confess to crimes for a myriad of reasons – fear, confusion, mental illness, or biased police interrogation techniques. Recording interrogations in all felony cases (through the use of inexpensive recording technology already used by some departments) will allow members of the jury to understand how a confession was obtained, and it will ensure that they have the ability to assess the validity of a confession if it is later recanted.
Note: Recorded interrogations can also assist the prosecution – if police are falsely accused of unfair interrogation practices, the recording may clear them of any wrongdoing and allow the evidence to stand on its own merits. [i]
(2) Require law enforcement agencies to use known best practices in photo or live lineup procedures to strengthen the quality of eyewitness identifications. [ii] Because juries often rank eyewitness testimony second only to a confession when determining a defendant’s guilt, it is essential that law enforcement use the most reliable procedures to obtain accurate eyewitness identification. Unfortunately, 88% of Texas law enforcement agencies do not have specific policies regarding the procedures for lineups or photo arrays.[iii]
Researchers have identified proper – and inexpensive – methods for law enforcement officers to use when conducting a lineup or using a photo array, which should be put in place before jury members are presented with eyewitness testimony: (a) ensure that a ‘blind’ administrator (someone not involved in the investigation and who does not know who the suspect is) conducts the procedure, which will better prevent his or her body language and verbal cues from unintentionally influencing the results; (b) ensure that photos do not provide clues as to which person the officers expect the witness to pick; (c) ensure the witness is informed that the suspect may not be there; and (d) ensure that the witness’ exact response and level of certainty are recorded at the time of the identification. It is important to record this level of certainty at this point because, in the time it takes for a case to go to trial, witnesses will have had the opportunity to convince themselves that the person they identified must be the guilty culprit.[iv]
Some experts suggest using sequential blind photo lineups, where the administrator reveals the photos one at a time. This should better prevent the witness from choosing the wrong person because it precludes that witness from comparing one person to another and choosing someone who resembles the suspect. Note: Seven police departments in Texas currently use this sequential blind lineup method.[v]
(3) Ensure informant testimony is corroborated in certain situations. Informants are those who agree to provide testimony against another individual in exchange for a financial reward or leniency in their own criminal proceedings. Unfortunately, jailhouse informants with nothing to lose abuse the system by fabricating confessions or testimony – leading to a reduced charge or sentence for themselves, and to a wrongful conviction of an innocent person. Juries should learn of this incentivised testimony. Though currently, Texas law requires that informant testimony be corroborated by another person in cases of undercover drug stings, this corroboration requirement should be extended to all informant testimony used to secure the conviction of another. [vi]
In addition, informant testimony should be subjected to a pretrial reliability hearing, where the informant’s criminal background could be disclosed, as well as the concessions made by the State to secure that informant’s testimony (e.g., promises or suggestions for leniency or financial reward). A pretrial hearing will allow a judge to assess the validity of informant evidence before it reaches the jury. [vii]
(4) Ensure continued implementation of HB 681 (Hochberg; effective 2007), which amended Texas’ post-conviction DNA statute to untie judges’ hands in granting DNA tests, as well as improve opportunities for justice. As of 2007,judges are now permitted to order forensic testing to resolve controverted and previously unresolved facts in an applicant’s capital case where it has the scientific potential to produce new evidence relevant to the defendant’s assertion of actual innocence – even if the results alone may not completely exonerate the defendant. This important improvement must be fully implemented throughout the state.
(5) Remove the barriers that exonerated individuals face in their efforts to re-enter society. Wrongfully convicted individuals are not eligible to receive the limited re-entry support services currently available to exiting individuals, nor do they have access to much needed mental health services or medical and dental care. A wrongful conviction, in other words, bears an astonishingly harsh social stigma – in addition to other tremendous hardships that severely limit individuals’ ability to find employment and housing and to restore normalcy to their lives.
To best ensure that exonerees receive the assistance they need to regain the years lost to false imprisonment (e.g., with shelter, employment, medical care, etc.), Texas should remove the financial cap on payments to them, currently included in Texas’ post-conviction statute. In addition, the law should clarify that in order to receive payment, a wrongfully convicted individual should not first be required to obtain a certification of actual innocence from the District Attorney in the county of conviction (usually, the prosecutor that convicted him or her).
(6) Create an Innocence Advisory Council to identify the common causes of wrongful conviction. The Council should ensure the investigation of all post-conviction exonerations in order to identify problems and patterns that lead to wrongful convictions. It should also produce publicly-available annual reports – based on investigative findings and other input provided by a diverse range of practitioners, legal scholars, legislative representatives, and advocates – that would identify specific weaknesses in Texas’ criminal justice process; these reports should identify procedures and programs that may prevent future wrongful convictions. Biannually, the Council should make recommendations to the Legislature with regards to best practices that prevent wrongful convictions or executions.
Through its work, the Council could raise awareness of the issues surrounding wrongful convictions, which would increase the integrity of convictions, positively impact public trust and confidence in Texas’ justice system, and decrease costs associated with multiple appeals.
[i] Henson, Scott, Juries.
[ii] Ibid.
[iii]The Justice Project, Identification.
[iv] Henson, Scott, Juries.
[v] Associated Press, Dallas police.
[vi] Henson, Scott, Juries.
[vii] Ibid.