Tag Archives: New Hampshire

Eyewitness Identification Involved in 75% of Wrongful Convictions

In criminal cases, eyewitness testimony often is viewed as the best possible evidence, despite a century’s worth of psychological and sociological studies revealing huge rates of error in identification.

“Human beings are not very good at identifying people they saw only once for a relatively short period of time,” writes Cornell law professor Michael Dorf. He continues:

The studies reveal error rates of as high as fifty percent—a frightening statistic given that many convictions may be based largely or solely on such testimony. These studies show further that the ability to identify a stranger is diminished by stress (and what crime situation is not intensely stressful?), that cross-racial identifications are especially unreliable, and that contrary to what one might think, those witnesses who claim to be ‘certain’ of their identifications are no better at it than everyone else, just more confident.

The costs of this phenomenon are revealed in data compiled by the Innocence Project, which concluded that out of 281 post-conviction exonerations secured through DNA in the United States, eyewitness misidentification “was a factor in 75 percent…making it the leading cause of these wrongful convictions.”

There are ways to guard against such error. Experts have cited two main variables that can adversely affect eyewitness identification: “estimator variables,” which include things like the degree of lighting, distance, or speed in a crime scene; and “system variables,” defined as “those that the criminal justice system can and should control,” which include law enforcement tools like lineups and photo arrays.

Reforms involving the latter boost the accuracy of witness identifications. These include “blind administration,” where an officer conducting a lineup is not aware of who the suspect is; “non-suggestive” lineups, made up of people who generally resemble a witness’s description; allowing witnesses to sign a statement indicating their level of confidence; and presenting members of a lineup sequentially and not simultaneously. Such safeguards have so reduced the error rate that local jurisdictions and eleven states have adopted some or all of them.

It would seem logical, then, to carry out these reforms universally, and for courts to screen eyewitness evidence for reliability before such testimony is heard by a jury.

On January 11, in Perry v. New Hampshire, the Supreme Court rejected that notion, ruling that pretrial inquiry is not a requirement of due process “when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.”

Perry does two unfortunate things.

It undercuts pretrial examination of almost all “estimator variables,” no matter how problematic, since those are less likely to involve police.

By drawing the line at “unnecessarily suggestive” actions by state actors, the ruling sets a high bar for challenging eyewitness evidence, ignoring the proof that misidentification is pervasive.

Justice Sonia Sotomayor, the dissenter in Perry, wrote that this ruling invites arbitrary results by making “police arrangement” the “inflexible step zero.” The concerns of due process should be based on the likelihood of misidentification, she said, “not predicated on the source of suggestiveness.” Reiterating that any preventable misidentification is a miscarriage of justice, she underscored the Innocence Project’s concern that inaccurate eyewitness testimony is the leading cause of wrongful convictions in US courts. DNA has exonerated eight misidentified inmates on death row. If we have at our disposal simple reforms that have been proven to guard against such tragic mistakes, why should we not implement them universally?

Via Patricia Williams at The Nation.

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Santorum Officially Declared Winner in Iowa

, U.S. Senator from Pennsylvania.

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The Iowa Republican Party officially declared Rick Santorum the winner of the Iowa caucuses late Friday.

Initial returns gave Mitt Romney a eight-vote margin of victory over Mr. Santorum, giving the former Massachusetts governor a boost heading into the New Hampshire primary.

However, a recount later gave Santorum a thirty-four-vote advantage over Romney in Iowa. The news comes as voters head to the polls Saturday for the South Carolina primary.

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Romney Has Millions in the Caymans


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Mitt Romney has millions of dollars of his personal wealth in investment funds set up in the Cayman Islands.

A spokesperson for the Romney campaign says Mr. Romney follows all tax laws and he would pay the same in taxes regardless of where the funds are based.

As the race for the Republican nomination heats up, Mr. Romney is finding it difficult to keep up secrecy around the details about his personal wealth, including his investment in funds located offshore and his ability to pay a lower tax rate.

On Tuesday, Mr. Romney disclosed that he has paid a far lower percentage in taxes than most Americans, around 15% of his annual earnings. It has been Romney’s Republican rivals who have driven the tax issue onto center stage. For weeks, Romney has cited a desire for privacy as his reason for not sharing his tax returns — a gesture of transparency that is now expected from presidential contenders.

“I can tell you we follow the tax laws,” he said recently. “And if there’s an opportunity to save taxes, we like anybody else in this country will follow that opportunity.”

Via ABC.

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Huntsman Throws Support to Romney

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Former Utah Governor Jon Huntsman today announced he is suspending his campaign for the Republican Presidential nomination and will endorse front-runner Mitt Romney.

While Mr. Huntsman hasn’t had much support in conservative South Carolina, which holds its primary Saturday, his decision to pull out could give a cushion of votes for Mr. Romney, who is facing competition there from Rick Santorum and Newt Gingrich.

Mr. Romney, bolstered by a huge war chest and a wave of momentum after wins in Iowa and New Hampshire, is hoping for a knockout blow if he finishes first in the Palmetto State. South Carolina has picked the winner of every GOP Presidential nomination since 1980.

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Republicans Attack Romney in South Carolina

Mitt Romney

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A day after Mitt Romney’s victory in New Hampshire, he was greeted in South Carolina by attacks on his business record, his past support for abortion rights, and his character.

Newt Gingrich, Governor Rick Perry, and their allies sought to portray Mr. Romney as insufficiently steadfast in his conservatism, threatening a scorched-earth approach to the primary to be held here on January 21.

Mr. Gingrich said he would not back off. Mr. Perry kept up his critique of what he has called Mr. Romney’s “vulture capitalism.”

It was Day One of what a ten-day test of whether conservatives can marshal the arguments, tactics, and unity to slow Mr. Romney and rally around a single alternative.

Mr. Romney used his campaign to create a backlash against the attacks on his record at Bain. His Boston headquarters held conference calls with his endorsers, sent talking points to supporters, and enlisted go-betweens to tell leaders of the pro-Gingrich group Winning Our Future that they were harming the party with the attacks.

Mr. Romney’s team made headway in casting his opponents as abandoning their own party’s support for the free market. It received backing Wednesday from two political voices that have had the respect of the Tea Party movement: Gov. Nikki Haley of South Carolina and Senator Jim DeMint.

In the morning, Mr. Romney had declared the attacks against his business background a failure.

Via The New York Times.


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SCOTUS Rules That Eyewitness Evidence Is Fine, Even If Flawed

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The Supreme Court on Wednesday refused to require courts to check suggestive eyewitness evidence.

The decision, by an 8-to-1 vote, effectively ruled that the only reason to let judges and not jurors assess eyewitness evidence was to deter police misconduct.

Justice Ruth Bader Ginsburg, writing for the majority, said there was no reason to treat eyewitness evidence differently from other evidence. Cross-examination, jury instructions, and the usual rules of evidence are enough safeguards, she wrote.

In dissent, Justice Sonia Sotomayor said the court ignored its own precedents and a wealth of knowledge:

This court has long recognized that eyewitness identifications’ unique confluence of features — their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process — can undermine the fairness of a trial.

Justice Sotomayor quoted a New Jersey decision that required courts to take special care in assessing eyewitness evidence. “Researchers have found that a staggering 76 percent of the first 250 convictions overturned due to DNA evidence since 1989 involved eyewitness misidentification.”

Brandon L. Garrett, a law professor at the University of Virginia, conducted the research. Professor Garrett said the majority overestimated jurors’ ability to judge eyewitness testimony. “We know,” he said, “that jurors place undue weight, for example, on the seeming confidence of an eyewitness.”

The case decided Wednesday, Perry v. New Hampshire, involved Barion Perry, who was convicted based on a statement from a woman who said she saw him from a distance late at night. The woman later failed to pick Mr. Perry out of a photo lineup and did not identify him in court.

Mr. Perry argued that the judge should have held a pretrial hearing to assess if the jury should hear the evidence. Justice Ginsburg wrote that a ruling in Mr. Perry’s favor would “open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identification.”

“There is no reason why an identification made by an eyewitness with poor vision, for example, or one who harbors a grudge against the defendant, should be regarded as inherently more reliable, less of a threat to the fairness of trial, than the identification Blandon made in this case,” she wrote.

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Romney Leads the Pack in New Poll

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Former Massachusetts Governor Mitt Romney is extending his lead over the rest of the GOP field vying for their party’s presidential nomination.

Mr. Romney, who won the New Hampshire primary on Tuesday and the Iowa caucuses last week, garnered 34% support in a recent national poll, up from 28% in December.

Former House Speaker Newt Gingrich was second, with 18%. Representative Ron Paul and former Senator Rick Santorum were tied at 15%, while Texas Gov. Rick Perry came in at 9% and former Utah Gov. Jon Huntsman had 4% support.

The sampling error for the poll, conducted January 11-12, was +/- 4.5%.

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