Witness Testimony and the Death Penalty: After Troy Davis, a Push for Eyewitness Reform

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Curtis Compton / Atlanta Journal-Constitution / AP

Virginia Davis, the mother of Troy Davis, holds a button in her lap pleading clemency for her son at her Savannah home, July 12, 2007. Georgia executed Troy Davis on September 21, 2011, for the murder of an off-duty police officer, a crime he denied committing.

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For all the attention placed on the recanting eyewitnesses in the Davis case, there wasn't much coverage of the fact that the witnesses may have been mishandled from the outset. Setting aside the various accusations that police pressured people into saying Davis did it, the police also broke a cardinal rule of witnesses: They allowed these strangers to interact with one another and sync stories. That is, the police actually brought all the witnesses together in the Burger King parking lot where the shooting took place and recreated the crime. Whether by mistake or by design, it had the effect of creating identical eyewitness accounts that hued to a central narrative, rather that revealing the messier vagaries of nearly a dozen people trying to remember what they had seen in a dark parking lots.

"Should never happen." says Sinunu-Towery sharply. "Witnesses need to be able to tell their story alone." Sinunu-Towery says that local law enforcement in her area take this seriously, but even then, it's not always possible to keep witnesses from coordinating their stories. Even if police are a bit late responding to a scene, witnesses tend to start chatting and inadvertently match up their recollections. "I remember years ago there was a double homicide in a bar," she says. "There were a lot of inebriated witnesses, and it was pretty hard to keep them from talking with each other about what had happened."

False convictions, however, are not the fault of bad witnesses; they are the result of poorly trained judges and juries. And this is where Davis' case could make a lasting difference. Just two days before Davis' execution, the Innocence Project and a consortium of police and advocacy groups released a study that outlined best practices for lineups. For example, it turns out that if you have a full lineup that doesn't include the actual perpetrator, the witness will often just pick the one person in the lineup who looks closest to the guilty. Among the report's top findings: by far the most reliable practice is the double-blind sequential lineup, where the administrator doesn't know who the suspect is, and suspects or their photos are presented one-by-one instead of in a group.

There are other common-sense reforms that can help the courts use eyewitnesses properly. Standardizing police protocols would clearly help. So would better juror instructions. In California, jurors are told from the outset that eyewitness accounts may be unreliable, that they should be taken with a grain of salt. But not every state is so explicit. Without those wary-sounding juror instructions, many jurors in other states may think, as Sinunu-Towery once did, that the "best evidence in the world was having someone stand up in court and shout 'there's the guy that did it!'" In reality, she says, that could well be the least reliable evidence of the trial.

Some jurisdictions are taking action, while others are resisting. Santa Clara County, where Sinunu-Towery works, is one of the leaders in implementing best practices (the county will soon begin videotaping all lineups, for example). But California, under pressure from police groups who don't appreciate lawmakers telling them how to do their job, has blocked some legislative attempts to regulate the eyewitness process more heavily. Florida has been similarly reluctant. In August, New Jersey's Supreme Court ruled that eyewitness identification is routinely flawed, opening the door to statewide reform. Georgia, for its part, instituted reforms in 2008 that were at least partially in response to the already-brewing controversies surrounding the Troy Davis case. But even those, as the Pew Center on the States' online publication Stateline.org points out, were not mandatory.

Activists argue that should be uniform protocols throughout the country for how police handle witnesses and what juries are told about eyewitness reliability. It's something both sides can agree on (for the most part), and would provide an extra insurance policy against convicting the innocent. And, for Davis' family and supporters, it would be a sign of progress, reform and redemption — that perhaps his death was not in vain.

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