Reforms with Broad Support and Proven Success
The Innocence Project of Florida works with people from across the criminal justice system – including prosecutors, victims, law enforcement agencies and defense advocates – to enact meaningful reform. Improving fairness and accuracy in the criminal justice system benefits all segments of society. Victims and their families can see justice; prosecutors and police can have the tools to do their jobs well; the public can have more confidence in the system; and innocent people and their families can avoid the tragedy of wrongful convictions.
The Innocence Project’s priorities for reforming the criminal justice system reflect the lessons that have been learned from DNA exonerations over the last 15 years. These priorities also reflect the need to address fundamental shortcomings in the criminal justice system while implementing specific reforms to law enforcement procedures. All of the reforms that the Innocence Project and its partners advocate have been proven to increase the accuracy of the criminal justice system, often through decades of scientific research.
The reforms that can address and prevent wrongful convictions include:
1. Eyewitness ID Reform
Time For Reform
Several easy-to-implement procedures have been proven to significantly decrease the number of misidentifications. However, acceptance of these changes has been slow. The Innocence Project recommends that all jurisdictions immediately adopt the following policies:
Blind Administration: Research and experience have shown that the risk of misidentification is sharply reduced if the police officer administering a photo or live lineup is not aware of who the suspect is.
Lineup composition: “Fillers” (the non-suspects included in a lineup) should resemble the eyewitness’ description of the perpetrator. The suspect should not stand out (for example, he should not be the only member of his race in the lineup or the only one with facial hair). Eyewitnesses should not view multiple lineups with the same suspect.
Instructions: The person viewing a lineup should be told that the perpetrator may not be in the lineup and that the investigation will continue regardless of the lineup result. They should also be told not to look to the administrator for guidance.
Confidence statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, articulating his the level of confidence in the identification.
Recording: Identification procedures should be videotaped whenever possible – this protects innocent suspects from any misconduct by the lineup administrator, and it helps the prosecution by showing a jury that the procedure was legitimate.
Jurisdictions should also consider adopting sequential presentation of lineups: Research has shown that presenting lineup members one-by-one (sequential), rather than all at once (simultaneous), decreases the rate at which innocent people are identified. Research has also demonstrated that when viewing several subjects at once, witnesses tend to choose the person who looks the most like – but may not actually be – the perpetrator.
Click here for a more thorough discussion of why the Innocence Project separately supports sequential presentations.
From the Innocence Project:
The following reforms form the basis of the Innocence Project’s eyewitness identification reform package:
The “Double-blind” Procedure/Use of a Blind Administrator: A “double-blind” lineup is one in which neither the administrator nor the eyewitness knows who the suspect is. This prevents the administrator of the lineup from providing inadvertent or intentional verbal or nonverbal cues to influence the eyewitness to pick the suspect.
Instructions: “Instructions” are a series of statements issued by the lineup administrator to the eyewitness that deter the eyewitness from feeling compelled to make a selection. They also prevent the eyewitness from looking to the lineup administrator for feedback during the identification procedure. One of the recommended instructions includes the directive that the suspect may or may not be present in the lineup.
Composing the Lineup: Suspect photographs should be selected that do not bring unreasonable attention to him. Non-suspect photographs and/or live lineup members (fillers) should be selected based on their resemblance to the description provided by the eyewitness – as opposed to their resemblance to the police suspect. Note, however, that within this requirement, the suspect should not unduly stand out from among the other fillers.
Confidence Statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, that articulates the level of confidence he or she has in the identification made.
The Lineup Procedure Should Be Documented: Ideally, the lineup procedure should be electronically recorded. If this is impracticable, an audio or written record should be made.
In October of 2014, the National Academy of Sciences (NAS), the nation’s premier scientific entity, issued a groundbreaking report settling many long-debated areas of police practice. The report identified a set of scientifically-supported reform procedures, which have been promoted by the Innocence Project since the inception of its work in this area of police practice.
Photo and live lineups conducted by law enforcement agencies must be conducted using blind/blinded administration and witnesses must be given proper instructions before viewing a lineup. Noncompliance with these requirements is admissible in support of a claim of eyewitness misidentification and if the identification evidence is presented at trial, the jury shall be instructed to consider evidence of noncompliance in determining the reliability of an identification. This became effective in 2017.
Benefits Of Recording Interrogations
The electronic recording of interrogations, from the reading of Miranda rights onward, is the single best reform available to stem the tide of false confessions.
For the recording of interrogations to be effective, the entire custodial interrogation must be recorded. This record will improve the credibility and reliability of authentic confessions, while protecting the rights of innocent suspects.
In some false confession cases, details of the crime are inadvertently communicated to a suspect by police during questioning. Later, when a suspect knows these details, the police take the knowledge as evidence of guilt. Often, threats or promises are made to the suspect off camera and then the camera is turned on for a false confession. Without an objective record of the custodial interrogation, it is difficult to gauge the reliability of the confession.
For law enforcement agencies, recording interrogations can prevent disputes about how a suspect was treated, create a clear record of a suspect’s statements and increase public confidence in the criminal justice system. Recording interrogations can also deter officers from using illegal tactics to secure a confession.
From the Innocence Project - Benefits for Both Parties
Electronic Recording of Interrogations helps the innocent by:
Creating a record of the entire interrogation, including the interaction leading up to the confession;
Ensuring that the suspect’s rights are protected in the interrogation process; and
Creating a deterrent against improper or coercive techniques that might be employed absent the presence of a recording device.
Electronic Recording of Interrogations assists law enforcement by:
Preventing disputes about how an officer conducted himself or treated a suspect;
Creating a record of statements made by the suspect, making it difficult for a defendant to change an account of events originally provided to law enforcement;
Permitting officers to concentrate on the interview, rather than being distracted by copious note-taking during the course of the interrogation;
Capturing subtle details that may be lost if unrecorded, which help law enforcement better investigate the crime;
Enhancing public confidence in law enforcement, while reducing the number of citizen complaints against the police.
A Reform That Has Proven Successful
More than 800 jurisdictions nationwide regularly record police interrogations. A 2004 study conducted by Illinois officials of 200 locations that implemented this reform found that police departments overwhelmingly embrace the measure as good law enforcement whose time has come.
The Supreme Courts of Alaska and Minnesota have declared that, under their state constitutions, defendants are entitled as a matter of due process to have their custodial interrogations recorded.
In 2003, Illinois became the first state to require by law that all police interrogations of suspects in homicide cases must be recorded.
Police departments in Broward County (Florida) and Santa Clara County (California), among others, have begun to record interrogations without a law requiring them. Proactive policies like these have been adopted because the practice benefits police and prosecutors as well as innocent suspects.
Without a state law, individual agencies and officers can choose whether or not to record. The result is a hodgepodge of practices across the state, and protections that vary based on where a Floridian is arrested.
Nationally, 24 states and all federal law enforcement agencies require recording of suspect interrogations. In Florida, many jurisdictions have implemented the practice on their own. Broward County began recording interrogations over a decade ago, in the wake of several false confession cases. The Miami-Dade Police Department announced in 2014 that it would videotape interviews in homicide investigations.
IPF Executive Director Seth Miller and Innocence Project Legislative Strategist Michelle Feldman recently published an op-ed addressing the issue of recording interrogations.
3. Access to Post-Conviction DNA Testing
Despite the widespread acceptance of DNA testing as a powerful and reliable form of forensic evidence that can conclusively reveal guilt or innocence, many prisoners do not have the legal means to secure testing on evidence in their case.
Barriers To The Truth
Forty-nine states have some form of law permitting inmates access to DNA testing. The other three states have no law granting such access. Oklahoma has no law granting such access.
Even in many of the states that grant access to DNA testing, the laws are limited in scope and substance. Motions for testing are often denied, even when a DNA test would undoubtedly confirm guilt or prove innocence and an inmate offers to pay for testing.
Federal Incentives For Granting Access To DNA Testing
Federal law, the 2004 Justice For All Act, grants access to DNA testing for federal inmates claiming innocence and also allocates various justice-related funding to any state that grants DNA testing access to inmates claiming innocence. To meet the requirements of the federal law, states should pass or strengthen laws granting access to DNA testing.
Anyone found guilty of committing a felony after a trial may apply for post-conviction DNA testing at any time. Those who entered a guilty plea or nolo contendre to a felony prior to July 1, 2006 may also apply. Where a defendant pled guilty or nolo contendere after July 1, 2006, state statute permits such a defendant to petition under certain limited circumstances. Effective: 2001; Amended most recently: 2006.
Clear And Comprehensive Laws Can Ensure Justice
Some states have passed statutes that include barriers to testing that are insurmountable for most prisoners. These include restrictions against inmates who pled guilty or whose lawyers failed to request DNA testing at trial. In many cases, the questionable evidence used to convict a defendant at trial – like eyewitness identification or snitch testimony – is used by judges as grounds to deny a DNA test. These barriers keep innocent people from securing DNA tests that could prove their innocence.
An effective post-conviction DNA access statute must:
Allow testing in cases where DNA testing can establish innocence – including cases where the inmate pled guilty
Not include a “sunset provision” or expiration date for post-conviction DNA access
Require states to preserve and account for biological evidence
Eliminate procedural bars to DNA testing (allow people to appeal orders denying DNA testing; explicitly exempt DNA-related motions from the restrictions that govern other post-conviction cases; mandate full, fair and prompt proceedings once a motion seeking testing is filed)
Avoid creating an unfunded mandate, and instead provide the money to back up the new statute
Provide flexibility in where and how DNA testing is conducted
For more on this issue, view the Innocence Project’s DNA access facts or review Florida's legislation on post-conviction DNA access.
4. Conviction Integrity Units & Prosecutorial Accountability
"A Conviction Integrity Unit (CIU) is a division of a prosecutorial office that works to prevent, identify, and remedy false convictions." Conviction Integrity Units are a response to calls for prosecutorial reform.
A report by the National Registry of Exonerations that reviewed 33 Conviction Integrity Units that existed at the end of 2017, that discusses the impact of both CIUs and Innocence Organizations on exonerations, Conviction Integrity Units have been involved in 269 exonerations through 2017.
Although this sounds like a significant amount, there are over 2,300 prosecutor's offices in the U.S., meaning 98.5 percent are still without CIUs. The existence of a CIU also does not guarantee that they are working effectively to exonerate individuals who have been wrongfully convicted.
For example, "Los Angeles County is the biggest county in the nation, yet in three years, its office has exonerated exactly two people, according to its report."
Read the Innocence Project's full recommendations for CIU best practices.
There are currently two CIU's in Florida, one in the 4th judicial circuit, and one that recently opened in the 9th judicial circuit.
Prosecutorial Oversight & Accountability
While most prosecutors respect their ethical and legal obligations, far too many innocent people have been wrongly convicted as a result of prosecutorial misconduct.
A survey conducted by the Innocence Project and the Veritas Initiative looked at five diverse states over a five-year period and identified 660 cases in which courts found prosecutorial misconduct. Of these, only one prosecutor was disciplined.
Regardless of the extent of a prosecutorial error or misconduct—from the simplest mistakes to intentional withholding of evidence that is favorable to the defendant—these actions undermine accuracy in criminal trials and threaten to create wrongful convictions at unacceptably high rates.
There are numerous opportunities to improve prosecutorial oversight and accountability through the creation of independent oversight entities as New York has just done with groundbreaking legislation. Seizing these opportunities would improve the quality of not only prosecutorial conduct but also the criminal justice system overall.
5. Preservation of Evidence
Preserving DNA evidence preserves the ability to prove innocence.
Despite laws enabling inmates to seek DNA testing in many states, performing a test is often impossible years after a conviction because the evidence has been lost, destroyed or contaminated due to improper storage.
The Innocence Project recommends that all physical evidence in all criminal cases be properly maintained as long as the defendant is incarcerated, under supervision or in civil litigation. Laws and policies on proper evidence preservation help police and prosecutors solve cold cases, and they give inmates a chance – often the only real chance – to prove their innocence.
Solving Cold Cases
There are thousands of unsolved cases in the United States, and many of these involve physical or biological evidence that could one day be matched to a perpetrator. DNA evidence has helped police solve hundreds of cold cases in recent years, and will continue to do so as law enforcement agencies improve the way they store and catalogue evidence.
An Innocent Inmate's Last Hope
In some cases, evidence has been lost or destroyed prior to trial. Whenever a case goes to trial without sufficient evidence, the chances are greatly increased that an innocent person will be convicted or that a guilty person will be acquitted. When evidence is destroyed, justice is not served.
Criminal appeals after a conviction are a difficult road, even for the innocent. The resources of the justice system are stacked against the inmate, and once a conviction is secured there is no longer a presumption of innocence.
In cases with DNA evidence, this process can take years and can hit roadblocks at any stage. Appeals are even more difficult in cases without any evidence to test because they become a web of witness statements and costly investigations.
State statute requires the automatic preservation of any physical evidence related to the conviction of an individual for a felony offense. The evidence must be preserved for the length of their sentence, or 60 days after the execution of a sentence (when the death penalty is imposed). Effective: 2001; Amended most recently: 2006.
Florida's statute meets the best practices standards outlined by the NIST Technical Working Group on Biological Evidence Preservation.
6. Crime Lab Oversight
Forensic science errors – both inadvertent and calculated – are a leading cause of wrongful convictions.
Despite several lab scandals across the country in recent years which show that innocent people were convicted because of crime lab errors, and notwithstanding the important efforts undertaken by some accrediting entities to address this issue, states have historically done little to investigate or remedy these problems and ensure the integrity of forensic evidence.
The 2004 Justice For All Act, which was passed by Congress and signed into law by President Bush, requires states seeking federal funding for crime labs to have an appropriate process to conduct independent, external investigations into allegations of negligence or misconduct affecting forensic results. Still, a number of states lack the independence and/or process necessary to ensure the integrity of results from forensic crime labs.
Reports Supporting Reform
The first major scientific institution to investigate this problem across the board was the National Academy of Sciences (NAS) in its report, Strengthening Forensic Science in the United States: A Path Forward, released in 2009. This report noted that “imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence.” It also found that some forensic techniques, particularly those that deal with comparing patterns or features (such as tire tread impressions, bite marks, fiber, or hair), have not been subjected to sufficient scientific evaluation, and noted that the scientific basis for arson investigations should be strengthened.
The same concerns were reiterated and expanded upon in the 2016 report, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, by the President’s Council of Advisors on Science and Technology (PCAST). This report examined the research underlying specific forensic feature comparison disciplines, evaluated their accuracy and reliability, and made recommendations to various federal agencies to strengthen these disciplines. Among the recommendations was the need for better resources to support judicial training given the changing landscape in the evaluation of forensic evidence and state of validation of various forensic techniques.
Fixing Labs Today With Proper Oversight
The Innocence Project supports the forensic community in its ongoing fight for the funding it deserves as caseloads grow and the public becomes more demanding. Crime victims, police, prosecutors and courts all gain from an efficient system that minimizes errors and focuses resources on the punishment of the guilty. The following recommendations, developed by the Innocence Project during years of research and experience, can substantively address laboratory fraud and error:
Create an accreditation system: All laboratories testing forensic evidence for use in courtrooms must be reviewed regularly by an external agency. All technicians should be licensed.
Form oversight commissions: Independent panels should be created in each state to review the forensic methods that are accepted in state courtrooms and to investigate allegations of misconduct, negligence or error in labs.
Enforce requirements that are already in place: Many states receive federal grant money under the Paul Coverdell Forensic Science Improvement Grant program. This grant money comes with the requirement that the state conduct independent investigations into any allegations of misconduct. Many states have accepted the grants but have not complied with this requirement.
For more information on the long history of crime lab negligence and scandal in the U.S., visit the Innocence Project’s Forensic Science Misconduct section.
7. Lack Of Reform Commissions
Despite the number of DNA exonerations in the United States, very few investigative bodies – sometimes called “Innocence Commissions” – have been formed to investigate and understand the circumstances that lead to wrongful convictions.
The Innocence Project of Florida encourages institutional actors in the State of Florida to create broad-based criminal justice reform commissions to study wrongful convictions and advocate for changes in the system.
Commissions in several states have already begun to recommend and help implement improvements in investigations, lab operations, defense, prosecution and judicial review necessary to help ensure the integrity of the criminal process.
Bringing Everyone to the Table
Effective commissions include experts from all parts of the criminal justice system — including crime victims and concerned members of the public. These varied perspectives, combined with public and official support, can lead to true, lasting reforms.
Successful Commissions Already at Work
The 30-member North Carolina Actual Innocence Commission was created by the state’s Chief Justice in 2002. The commission has focused on the causes of wrongful conviction and is considered a national model for effectiveness and reform.
In Pennsylvania, where nine men have been proven innocent by DNA testing in recent years, the state Senate created an Innocence Commission in 2006.
California, Connecticut and Wisconsin have also created commissions to study the causes of wrongful conviction, and in 2003, the Illinois legislature passed into law 85 recommendations made by a special commission created there to study capital punishment and create safeguards against all wrongful convictions.
Florida Legislature established an Innocence Commission for the state for two years beginning in July 2010 and ending in 2012.
The Commission published a report in 2012 of their findings and recommendations for the State.