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Excerpt from ACTUAL INNOCENCE, by Barry Scheck, Peter Neufeld, Jim Dwyer

APPENDIX I

A Short List of Reforms to Protect the Innocent

DNA TESTING

Pass statutes on the state and federal level modeled after legislation in New York and Illinois that allow post conviction DNA testing if it could establish a reasonable probability that inmate was wrongfully convicted. Until these laws are passed, follow the 1999 Justice Department report for Post Conviction DNA Testing Recommendations for Handling Requests. DNA testing should be done within seven to fourteen days of a crime to make sure innocent suspects are not incarcerated and to improve the chances of catching the guilty. Do DNA tests on unsolved crimes, including more than 100,000 untested rape kits.

MISTAKEN EYEWITNESS IDENTIFICATION

Implement the recommendations from the 1999 National Institute of Justice report Eyewitness Evidence: A Guide for Law Enforcement.

These measures all can be implemented by changes in police policies, legislation is not necessary.
* All lineups, photo spreads, and other identification processes should be videotaped.
* An independent, trained identification examiner should run the lineups and photo spreads. The examiner should not know the suspect - avoiding the possibility of hints or reactions that would steer the witness.
* Witnesses should be always instructed prior to viewing that the actual perpetrator may not be in the lineup or photo spread.
* Lineups and photo spreads should use the sequential presentation method rather that the simultaneous presentation method. With the sequential procedure, witnesses must decide on each person before seeing the next one. This prevents relative judgments and makes witnesses "dig deeper" to make the determination, and studies show such sequential presentations are more reliable.
* Show-ups should be used only in rare occasions, such as when the person was detained near the scene of the crime and the witness can be shown the suspect within sixty minutes (or less) of the offense. Beyond this, proper lineups or photo spreads (using fillers) should be conducted.
* The witness should be asked to rate his or her certainty at the time of the identification.
* Police and prosecutors should be trained about the risks of providing corroborating details that may disguise doubts a witness may hold.

FALSE CONFESSIONS

One simple rule: Videotape, or at least audiotape, all interrogations so there is an objective record. Alaska has such legislation, and it has long been the rule in the United Kingdom.

JAILHOUSE SNITCHES AND INFORMANTS

Following the lead of Canada's Guy Paul Morin Commission recommendations, jurisdictions should set up a high-level screening committee of prosecutors to vet the jailhouse snitch/informant's testimony and all the attendant circumstances before permitting it to be used at trial. There are fourteen factors that must be considered, including:
* Can the statement be confirmed by extrinsic evidence, i.e., not by another snitch?
* Does it contain details or leads to the discovery of evidence known only to the perpetrator?
* Does the statement contain details that could reasonably be accessed by the in-custody informer, other that through inculpatory statements by the accused - e.g., press accounts or legal pleadings:
* What is the snitch/informer's general character - e.g., criminal record or other disreputable or dishonest conduct known to the authorities?
* Is the snitch/informer a recidivist snitch/informer? Trial judges should presume that a jailhouse informant's testimony is unreliable and require the prosecutor to overcome that presumption before a jury can hear the evidence. All deals with snitch/informants must be in writing and all communications between the snitch and the police or prosecutor should be videotaped or audiotaped.

FORENSIC FRAUD

Forensic scientists should formally agree, as standard practice, that crime laboratories function as an independent third force within the criminal justice system, unbeholden to prosecutors or defense lawyers, operated by professionals who will not misrepresent or slant data for either side. Crime laboratory budgets should be independent from the police, and police officials should not be able to exercise supervisory responsibility over the scientists. Complete discovery of underlying data from forensic tests should be provided in criminal cases. Reports from forensic tests should be comprehensible explanations of the work performed, not conclusory assertions, and must describe all potentially exculpatory inferences that could be drawn from the results. There should be whistle-blower protection for forensic scientists in government who question the reliability of work, and experienced ombudspersons who can be called in to mediate disputes between scientists. State and local governments should establish an independent inspector general- type lawyer who is authorized to investigate allegations of misconduct in crime laboratories the same way that Michael Bromwich investigated the FBI laboratory. First-rate postgraduate forensic science programs should be established in leading American universities; they are desperately needed, and there are plenty of jobs in the field for highly qualified personnel. Law schools and medical schools should become active sponsors of these programs.

JUNK SCIENCE, SLOPPY SCIENCE

The underlying scientific basis for many forensic tests must be objectively re-evaluated under the standards enunciated in recent Supreme Court decisions designed to keep junk science out of court. Microscopic hair-comparison evidence should be abandoned. Instead, mitochondrial DNA testing of hairs should be conducted in any hair evaluation involving a matter of importance. Like medical labs, all the disciplines in crime labs should be subjected to regulatory oversight and should meet standards of professional organizations. States should create agencies modeled after New York's Forensic Science Review Commission - an independent panel composed of scientists, prosecutors, defense counsel, crime lab directors, police, and judges - that have real authority to provide effective regulation of laboratories. All crime laboratories must be accredited. This is not a panacea but a good first step. Accreditation should involve rigorous quality-control and quality- assurance review, periodic inspection, and spot checking of technicians' data. Laboratories must submit to a rigorous proficiency-testing program, including blind proficiency testing, in which samples would be sent in and analyzed as thought they were part of an ordinary case. Labs should be rated on their ability to come up with valid results. In courts, the scientists should provide, as a matter of course, information about "controls" and whether they failed; and what the error rate is for a procedure. Defense lawyers should have all material scientific evidence independently scrutinized, if not re-tested, by a competent expert. Public defenders and court-appointed lawyers must have funds to retain qualified independent experts. Every public defender's office should have at least one lawyer who acts as a full time forensic science specialist, helping other lawyers on their cases.

BAD PROSECUTORS, BAD COPS

Create specialized, blue ribbon disciplinary committees to deal exclusively with misconduct by criminal defense attorneys and prosecutors. Enhance federal involvement in prosecution of misconduct by state police officers.

BAD DEFENSE LAWYERS

Fees for court-appointed lawyers must be raised to a level that will attract competent lawyers to take cases. Public defender salaries should be the same as prosecutors in each jurisdiction to ensure adequate pay levels. Public defender caseloads should not exceed the generally accepted standards of the National Legal Aid and Defenders Association. Ethical complaints should be filed with the state bar when lawyers are forced to proceed with too many cases. To ensure high-quality defense services for the poor, there must be performance standards enforced in every jurisdiction - standards that apply both to defender organizations and to individual court-appointed counsel. The standards serve three purposes: education a skeptical public about what it takes to provided capable lawyers, promoting an understanding of why greater funding is essential, and providing notice to the lawyers themselves of what is expected. Federal money to assist defense services should be roughly comparable to prosecutorial funding.

COMPENSATION AND VICTIMS

Victim services experts should be assigned to assist victims whose mistaken identification testimony turns out to have convicted an innocent defendant. Each state should pass no-fault compensation statures to provide decent relief to those who can prove they were wrongly convicted by clear and convincing evidence. New York's no-fault stature, which permits recovery for past and future pain and suffering and lost wages, should be the model.

THE DEATH PENALTY

At the very least, follow the American Bar Association recommendations that call for a moratorium on the death penalty and other affirmative reforms, including adequate compensation and resources for death penalty counsel.

INNOCENCE COMMISSIONS

From state and federal institutions modeled after the Criminal Case Review Commission in the United Kingdom to investigate wrongful convictions. Require the official collection and reporting of data on cases where newly discovered evidence of innocence is the basis for overturning a conviction. Create and fund Innocence Projects at law schools that will represent clients in DNA and non-DNA cases. Fund teaching and research on wrongful convictions, causes, and remedies.

AN INNOCENCE NETWORK AT LAW SCHOOLS