Free After Thirty Years

This week Cornelius Dupree, Jr. was declared an innocent man after serving more than three decades for a crime he did not commit. Dupree was charged in Dallas, TX in 1980of rape and robbery. The conviction was based largely on a faulty witness identification. Earlier this year, DNA evidence from the rape proved that Dupree was not the perpetrator.

Dupree was represented by Innocence Project Co-Founder Barry Scheck and Senior Staff Attorney Nina Morrison. Morrison said “Mistaken identification has always plagued the criminal justice system, but great strides have been made in the last three decades to understand the problem and come up with fixes like those being considered by the state Legislature that help minimize wrongful convictions. We hope state lawmakers take note of the terrible miscarriage of justice suffered by Cornelius. When the wrong person is convicted of a crime, the real perpetrator goes free, harming everyone.”

Legislation is in the works in Texas to provide standards to law enforcement for administering lineups and photo arrays. These standards would help to prevent eyewitness misidentification by preventing influence of the witness and by imposing strict standards to increase the accurary and reliability of identifications.

Anthony Massingill was convicted with Dupree. He is expected to be exonerated later this month.

Innocence Blog. "Houston Man to be Declared Innocent After Serving 30 Years for a Dallas Rape and Robbery He Did Not Commit." January 4 2011.

Connecticut Supreme Court Declines to Rule on Important Innocence Issue

This week, the Connecticut Supreme Court unanimously upheld J'Veil Outing's 2005 murder conviction. Outing was linked to the murder by two eyewitnesses, who have both since recanted. No scientific or ballistic evidence links Outing to the crime.

Outing wanted to introduce expert testimony about the unreliability of eyewitness identifications. The testimony would have focused on recent scientific studies pointing out why witnesses sometimes erroneously identify the wrong people as suspects.

The four-justice majority believes that this case is not the right one to introduce such testimony, because other factors were more important to the verdict. The court said the exclusion of the testimony was "harmless error", because the jury could use their common sense to make the determinations themselves about the unreliability of the eyewitness. The majority relied on a 25-year old precedent holding that such testimony is not mandatory.

Three justices challenged the majority's view, claiming that relying on such an old ruling was potentially prejudicial to defendants. Justice Flemming Norcott Jr. wrote, "I simply do not think it appropriate or wise to wait for the 'right' record to come before us before we act to correct this dangerously outmoded body of case law."

The unreliability of eyewitness testimony has recently been gaining media attention. Some attorneys believe the Supreme Court will address this issue sometime in the near future.

Reitz, Stephanie. "Conn. high court upholds murder conviction" http://www.boston.com/news/local/connecticut/articles/2010/08/20/conn_court_to_rule_on_witness_ids_of_suspects/?page=full

New Jersey at the Forefront of Eyewitness Misidentification Reform

Over 10 years ago, the New Jersey Supreme Court handed down a landmark ruling requiring judges to instruct juries about the reliability problems with cross-racial identifications when the identification is not corroborated by other evidence. This ruling came after McKinley Cromedy was exonerated through DNA testing. Cromedy spent five years in prison for a rape he did not commit. The only hard evidence presented at his trial was the victim’s testimony identifying him as her attacker.

Last month the Special Master appointed by the New Jersey Supreme Court in State v. Henderson released a report calling for a major overhaul of the legal standards used by courts to determine the admissibility of eyewitness identification evidence. Geoffrey Gaulkin, a retired appellate judge, submitted the report after extensive hearings on the state of the law and science of eyewitness identification. The report recognized the major scientific developments in the area of eyewitness identification and concluded that the widely-used Manson test and procedures are not “valid and appropriate in light of recent scientific and other evidence.” The Special Master made numerous findings to support his conclusion, including the following: suggestive procedures can falsely inflate the reliability of eyewitness testimony; eyewitness memory is more like physical trace evidence than a videotape recording and can be mishandled, contaminated, or degraded; non law enforcement actors can contaminate a witness’s memory. The report recommended that the reliability inquiry be expanded to include “all the variables left unaddressed” by Manson, that at least an initial burden be placed on the prosecution to produce evidence of the reliability of the eyewitness identification evidence, and that judges and juries be informed of and guided by the scientific findings regarding eyewitness identification.

"A new framework is urgently needed to address what the science has told us," said Ezekiel R. Edwards, a lawyer with the Innocence Project in New York who participated in the New Jersey investigation on the issue.

Many factors have been found to affect the reliability of an identification. The way lineups and photo arrays are administered drastically affects the dependability of an identification. New Jersey has guidelines for police officers administering lineups. These guidelines include telling the witness that the perpetrator may not be present and showing photos sequentially rather than simultaneously. Such procedures have been found to reduce the risk of misidentification.

According to the Innocence Project, eyewitness misidentification was a contributing factor in over 75 percent of US convictions later overturned by DNA evidence.

Lounsberry, Emilie. "New Jersey is a leader in addressing problems with eyewitness testimony." The Pennsyvania Inquirer. June 28, 2010. http://www.philly.com/inquirer/local/pa/20100628_New_Jersey_is_a_leader_in_addressing_problems_with_eyewitness_testimony.html

See Also: Special Master Report. State v. Henderson.