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Eyewitness Identification Bill Will Require San Antonio Police Department to Implement Written Policy on Obtaining Identification

photo.lineup.image.jpgTexas has been receiving attention over the past several years for the number of wrongful conviction in our state. Although Texas has far more wrongful convictions overturned by DNA evidence than any other state, this is a problem nationwide. The overwhelming majority of these wrongful convictions are due to erroneous eyewitness testimony. According to a report issued by The Justice Project in November 2008:

“Faulty eyewitness identification has played a role in over 75% of the 223 DNA exoneration cases in our country thus far, making mistaken eyewitness identification the leading cause of wrongful conviction in the United States. The same holds true in Texas where 82% of the state’s 38 DNA exonerations involved mistaken eyewitness identifications…Because eyewitness evidence, much like trace physical evidence, is susceptible to contamination if not collected properly, some identification procedures can actually increase the risk of false identification.”

The United States Supreme Court has also recognized the substantial role that eye witness testimony plays in wrongful convictions. See United States v. Wade, 388 U.S. 218, 228 (1967). The “vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identifications.” Id.

Recognizing the problem with eyewitness identifications, the Texas government has passed a bill that addresses how law enforcement agencies obtain the identifications. Texas House Bill 215, will require Texas police departments to have in place new eyewitness identification procedures. This bill shows that at least the Texas government is aware there is a problem with our justice system that needs to be fixed.

HB 215, codified as article 38.20 in the Texas Code of Criminal Procedure, requires all law enforcement agencies in TExas who regularly conduct photograph or live lineup procedures when performing the officer’s official duties. According to the bill, law enforcement agencies can either adopt the model policy created by the Bill Blackwood Law Enforcement Management Institute of Texas at Sam Houston State University or the law enforcement agency may adopts it’s own written policy that conforms to subsection (c) of Article 38.20.

According to the Innocence Project’s 2008 study, only a small percent of Texas law enforcement agencies had written policies in place on how to obtain a proper identification. The San Antonio Police Department participated in the study by supplying its written policies. However, the San Antonio Police Department did not have, at least not in 2008, a written policy on cautionary instructions to give the witness for neither photo or live lineups. The police department also did not have a written policy for bling administratio. SAPD did receive a “+” symbol foir composition fairness for photo lineups, but a “-” symbol for live lineups. SAPD also scored a “-” symbol for both photo and live lineups on the documentation of procedure category.

HB 215 is a step in the right direction to improving the justice system in Texas, but it is not the final solution. As defense attorneys we all must obtain the arresting agencies written policy and be prepared for cross-examination. We also should employ an expert to ensure that the written policy for a particular agency complies with Article 38.20 and that they were followed correctly in your particular case.

If you or someone you love has been arrested in San Antonio or the surrounding counties and the primary evidence against them is eyewitness identification, you need an experienced lawyer who will know how to challenge the identification. Contact the Law Office of Dayna L. Jones to speak with a criminal defense lawyer today.

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