Safeguards for the innocent

IN 1980, SEVEN YEARS into a life sentence for a double homicide, Aaron Owens sat before a parole board believing that he was never going to be released. John Taylor, the Alameda County deputy district attorney who originally prosecuted the case, had come to testify to make sure of it.

When the hearing ended, the two men stopped to speak to each other. Owens professed his innocence. Taylor’s intuition told him that Owens was speaking truthfully. Driven by a personal sense of justice, Taylor set about to reinvestigate the case. He learned that Owens had been misidentified by a key witness and that two other men had committed the crime.

Five years later, in an unrelated case, 18-year-old Harold Hall sat in a Los Angeles interrogation room and confessed to a different double homicide. He had been interrogated for 17 hours. Much of the information provided by Hall did not agree with the details of the crimes, but he was nevertheless convicted. After serving 19 years in prison, Hall’s conviction was overturned, and DNA evidence proved his innocence. His confession was false.

These and other wrongful convictions led the California Commission on the Fair Administration of Justice to issue a series of recommendations that served as the basis of two bills pending in the Legislature.

SB 1544 requires the attorney general to implement a set of eyewitness identification reforms that are recognized by police, prosecutors and the judiciary, as well as national justice organizations including the National Institute of Justice and the American Bar Assn. For instance, one is the use of “blind” lineups and photo spreads, in which the administrator of the procedure does not know who the police suspect is. This prevents the administrator from giving the witness inadvertent or intentional verbal or nonverbal cues.

The reforms also require a series of instructions to the eyewitness, including one that specifically says it is possible that the alleged perpetrator may not be represented in the display. Each lineup would also be accompanied by a “confidence statement” in which the witness specifies the level of certainty about any identification made. The benefits of these reforms are corroborated by more than 25 years of comprehensive peer-reviewed research, including the experience of law enforcement agencies in Santa Clara County.

SB 171 would mandate electronic recording of all custodial interrogations of suspects in a place of detention during investigations of homicides and violent felonies. Various kinds of recording devices would be used, both audio and video. Many California police and sheriff departments already record these interviews, and passage of this bill would establish consistency statewide.

My associates and I have spoken with experienced detectives from more than 485 law enforcement agencies in 44 states, including many in California, who record custodial interviews in major criminal investigations. We have yet to speak with an officer who would return to non-recorded interviews. Recordings protect innocent suspects and shield officers from unfounded claims that suspects were not given the Miranda warnings (without which individuals in custody may not lawfully be questioned), that improper coercive tactics were used or that police misstated what occurred.

Recordings create a permanent record that allows courts and juries to see and hear exactly what the police and the suspects said and did during closed-door police station interviews. They permit detectives to concentrate on suspects’ stories without needing to take extensive notes; when later reviewed, they often disclose overlooked clues; and they are useful in teaching effective interview techniques to new detectives.

If the police conduct is appropriate, recordings prevent civil litigation and potential judgments for alleged coerced confessions and wrongful convictions.

Mandatory recording statutes have been enacted in Illinois, Maine, New Mexico, Wisconsin and the District of Columbia, and have been put in place throughout Alaska, Minnesota and New Jersey under orders of those states’ highest courts. The law enforcement experience in all these states has been uniformly positive.

Passing these two bills will substantially enhance the accuracy and fairness of California’s criminal justice system so that the guilty are apprehended and convicted, the innocent are not mistakenly charged and the public is safer.