Florida Innocence Commission Calls for Changes in Lineup Procedures

In July 2010, the Florida Innocence Commission was formed to investigate the causes of wrongful convictions and to uncover measures which can be taken to avoid them. The Commission’s two year objectives are to make an interim report with recommendations of changes on or before June 30, 2011, and a final report on or before June 30, 2012. The Commission is made up of judges, attorneys, law school professors and law enforcement personnel. According to the executive order issued to create the Commission, “The Commission is authorized to propose statutory changes that are directly related to the wrongful conviction of the innocent. The Commission is also authorized to propose amendments to rules of court procedure on issues directly related to the wrongful conviction of the innocent.”

The Interim Report

The interim report was filed in June 2011, and identified what it believes to be the five main causes of wrongful convictions:

  1. Eyewitness misidentification
  2. False confessions
  3. Informants/jailhouse snitches
  4. Invalidated or improper scientific evidence
  5. Professional responsibility and accountability

Eyewitness misidentification is considered the most crucial factor. The Commission therefore spent a great deal of time considering this issue and much of its interim report is related to it. The Commission developed detailed procedures and practices related to lineups and the identification process. Among the most important suggestions were that each agency should have a written policy related to suspect identification, that they conduct “blind” lineups wherein the eyewitness does not know which person in the lineup is a suspect, and to show photos to eyewitnesses one at a time, not all at once.

They further recommended that eyewitnesses be given instructions before making an identification which includes letting them know that they are not required to identify anyone and that the investigation will continue whether or not they identify the suspect. They recommended that at least six photos be used in photo line-ups, that they use only contemporary pictures and that all the stand-ins have similar characteristics of the suspect – close in age, build, race, etc. They suggested that all color or all black-and-white photos be used, not a mix of the two. They also discouraged the use of a mixture of candid shots and mug shots.

The conduct of the officer administering the lineup was also discussed. The Commission’s recommendations were that the administrator not stand near the eyewitness as they view the lineup to prevent body language from influencing the identification, that the administrator not provide the eyewitness with any prompting before or feedback after identification has been made, and that they show the lineup to only one eyewitness at a time, shuffling the files between eyewitnesses in order to show the lineup in a different order.

Request or Requirement?

The Florida Innocence Commission debated whether or not to recommend that all Florida police agencies be required to adopt their suggestions related to lineups. Ultimately they decided to make their suggestions “recommendations.” The Florida Department of Law Enforcement (FDLE) disseminated these recommendations to the police agencies in a mailing on June 15, 2011. However, many are unhappy to see that the FDLE did not make the proposed changes mandatory or even present them as recommended standards required to be accredited. So far, none of the agencies that have reported their policies have decided to implement all of the recommendations made by the Commission. Considering the fact that false identifications account for many of the convictions of persons later exonerated by DNA, Orlando defense attorneys are left wondering why police agencies are reluctant to adopt procedures and policies that would help prevent them.

False Confessions

The second most common cause of wrongful convictions identified by the Commission is false confessions. Four of the twelve Florida inmates recently exonerated by DNA were convicted due to false confessions. False confessions were the main topic of the Commission’s August 2011 meeting. At this meeting they discussed the reasons for false confessions including mental illness, low IQ’s and long interrogations during which police slipped enough information to allow the suspect to provide a credible confession. The Commission then considered recommending that all police interrogations be recorded. They held off on that decision, however, until they decide how testimony that was not recorded will be handled. The Commission’s recommendations on this matter, along with the other causes of wrongful convictions, will be included in their final report due by June 30, 2012.

The Florida Innocence Commission is doing their part to identify and rectify the practices and procedures of police and courts that lead to wrongful convictions. Ultimately, however, it will be up to the police agencies and judges to implement these recommendations in order for them to be effective.

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