III. Reforms That Prosecutors Can Implement In Partnership With Other Law Enforcement Agencies
Prosecutors should also seek to partner with other law enforcement agencies, such as police departments and forensic labs, to implement conviction integrity efforts. Although they may lack the formal authority to control these agencies, this should not discourage reform efforts. Because of the important role that both the police and forensic lab analysts play in assisting prosecutors in investigating and prosecuting crimes, these actors should also be made aware of the importance of conviction integrity reforms and the roles that they can play in decreasing the likelihood that wrongful convictions will occur.
A. Police Departments
Prosecutors and police officers both play important roles in developing and prosecuting criminal cases, and cooperation and communication between the two law enforcement agencies can lessen the likelihood that problems will arise during the course of an investigation and prosecution. Accordingly, DA offices seeking to implement conviction integrity initiatives should seek to partner with their local police departments on the various reforms in order to ensure that police investigative tactics and techniques are not compromising the integrity of a given criminal case.
1. Coordinating Investigations
One important step prosecutors can take is to become involved at an earlier phase of the case, when the police are conducting proactive investigations. This will allow prosecutors to assist the police in avoiding errors, including constitutional errors, before they occur.
Some Roundtable participants cited particularly deep working relationships between prosecutors and police in their jurisdictions. Suffolk County DA Conley noted that, in Massachusetts, the DA has statutory authority to “direct and control” homicide investigations. This authority means that the DA is immediately notified and involved at the inception of the case, and a prosecutor responds to the scene and communicates with homicide detectives conducting the field investigation. Conley noted that the statutory provision has led to increased and extraordinary communication and cooperation between his office and the police. For example, detectives who serve in the Boston Police Homicide Unit do so only by joint agreement between the police commissioner and the DA. In addition, because his office directs and controls homicide investigations and authorizes all arrests of suspects charged with murder, full and frank discussions about case strategy between prosecutors and the police are encouraged and occur with regularity. Given the recent successes in homicide investigations that have been generated by this high level of communication, other units in the Boston Police Department have voluntarily become more communicative and cooperative, including the Sexual Assault and Youth Violence/Gang units.
“DA offices seeking to implement conviction integrity initiatives should seek to partner with their local police departments on the various reforms in order to ensure that police investigative tactics and techniques are not compromising the integrity of a given criminal case.”
J. Scott Thomson, the Camden, New Jersey Police Chief, also advocated for greater cooperation between prosecutors and police. He noted that in New Jersey, each county has a prosecutor who is the chief law enforcement officer of the county and who reports to the State Attorney General (“AG”). While the AG sets policy for uniform application of criminal procedures, the prosecutor has charging authority for his or her jurisdiction. While there was previously a somewhat adversarial relationship over charging decisions in major cases, an unintentional side effect of the economic downturn— the reduction in staff of nearly all of the Camden police department’s homicide unit—forced Thomson to rely more heavily on work done by, and in conjunction with, the Camden County Prosecutor’s Office. This led to a closer working relationship with the prosecutor and his staff. Assistant prosecutors are now regular attendees at Camden Police’s daily “10 am Huddle,” where the preceding day’s major crimes are reviewed. Because of improved communications, Thomson noted that prosecutors are now participants in the investigative decision making process (including obtaining evidence and testimony). This has been beneficial both for the prosecutor’s office and for his detectives. Finally, he noted that this partnership has allowed prosecutors to critique police tactics designed to obtain evidence or make arrests before they become problematic legal issues; this has led to less negative case law, stronger, more prosecutable cases, as well as a greater understanding by officers of the complexities involving charging decisions and the trial process. Ultimately, the actions of those on the front lines are more congruent with case law and the Constitution through this collaborative effort.
Chuck Wexler, Executive Director of the Police Executive Research Forum (“PERF”), also agreed that increased investigative partnerships would produce better criminal cases. He noted that sometimes there is a lack of clarity over who is “in charge of” criminal cases—ADAs or the police—and prosecutors tend to focus on the certainty of convictions, while police are preoccupied with identifying who is responsible for a crime, building a case, and then making an arrest. To the extent that prosecutors and police can work in tandem, with policies and procedures that complement each other’s work, this will improve the quality and integrity of criminal cases, as well as the long-term relationships between the two agencies. Wexler also noted that increased cooperation results in greater trust and sharing of information about investigations as they move forward.
2. Training and Educating Police Officers
In addition to solidifying investigative partnerships between DA offices and police departments, conviction integrity initiatives should also include prosecutor-led training and education of police officers about the legal constraints relating to the investigation and prosecution of criminal cases. Police officers are often privy only to a small slice of the life of a criminal case—from investigation to arrest—and often lack an understanding of the procedural complexities of the pretrial and trial proceedings that follow. Educating officers about a prosecutor’s ethical and disclosure obligations, as well as providing feedback about a case that has proceeded past the arrest phase, can increase officers’ understanding of the importance of their role in securing convictions. Finally, prosecutors should offer training about their ethical and disclosure obligations to ensure that police officers are cognizant of these obligations when investigating a criminal case.
Roundtable participants presented several ideas regarding how prosecutors could train police as part of conviction integrity initiatives, which are discussed in detail in the subsections below.
a. General Training on Pretrial and Trial Processes
Training police regarding how a criminal case proceeds through the courts can help conviction integrity initiatives by better educating police about how their investigative actions play out in the courtroom. This training can range from capitalizing on court events as “educational moments” regarding police tactics (such as court hearings regarding improperly obtained confessions and search-and-seizures) to having police observe direct and cross-examination to see how the legal process critiques and scrutinizes the panoply of police activity.
“… officers are generally not informed of the outcome of hearings in which they are involved, much less whether a judge issues an adverse credibility determination against them … better communication would lessen the perception that, once an arrest is made, the case is “over.”
Roundtable participants uniformly endorsed police training on pretrial and trial processes. For instance, Camden, New Jersey Police Chief J. Scott Thomson noted that very few of his officers have an opportunity to see inside a courtroom and as such lack comprehension of the criminal process that follows the arrest. He suggested training programs that would focus on the trial process, including giving direct testimony and being subject to cross-examination.
Katherine Lemire, Counsel to the Police Commissioner for the City of New York—herself a former prosecutor—echoed Thomson’s comments. She thought officers would benefit from courtroomrelated training, including sitting in on court proceedings to see what cross-examination looks like. She also noted that officers are generally not informed of the outcome of hearings in which they are involved, much less whether a judge issues an adverse credibility determination against them. She suggested that better communication would lessen the perception that, once an arrest is made, the case is “over.”
Darrell Stephens, Executive Director of the Major Cities Chiefs Association, suggested conducting joint “post-mortems” on cases that go poorly and cases that are successful in order to help police officers understand how their actions contributed to both failures and successes. Stephens also emphasized that police departments are willing to make reforms, and that this type of joint review would be useful to promote a “buy in” of the concept of improving the integrity of convictions in a given DA’s office.
Dawn Weber, Chief Deputy District Attorney in the Denver DA’s Office, agreed that training officers on the complexities of the trial process would be useful. She suggested integrating officers into the trial process—especially on motions where prosecutors are defending questionable police tactics—to provide an understanding of how officers’ decisions can affect trial strategy. She also suggested that officers receive a comparative education on the evolution of police procedures, comparing the practices of earlier eras that have now been subject to judicial scrutiny.
b. Educating Police Officers on Brady Obligations
Prosecutors should also work to educate police officers about Brady and Giglio disclosure obligations for two important reasons. First, prosecutors have an obligation to disclose Brady material that is in the possession of law enforcement involved in their cases. However, prosecutors can never disclose what they do not receive in the first place. Second, educating law enforcement about the legal concept and significance of exculpatory information and, more generally, inculcating in them a culture of total disclosure of information can contribute to an office’s larger program of conviction integrity reforms.
Again, Roundtable participants offered several ideas. Katherine Lemire has trained law enforcement on Brady obligations and suggested a collaborative approach between DA offices and their local police departments, including having prosecutors conduct lectures on Brady concepts. Jefferson Parish DA Paul Connick agreed, noting that his office conducted regular training sessions, both in its offices and at police headquarters, to keep the police department abreast of case developments and to emphasize the importance of working with prosecutors so that they do not create unnecessary problems that result in the retrial of cases. Connick also noted that these sessions were not about finger pointing but about having the police officer see the importance of doing things the right way. With that goal in mind, he routinely asks police officers about problems they are encountering in specific cases and seeks feedback on the effectiveness of his presentations.
Branny Vickory, DA for the 8th District of North Carolina, emphasized the need to train younger officers on the need to record their investigations in some form. His experience was that, when preparing officers for trial, they often failed to include information in the case file that would explain or document their decision-making process, not because they were trying to avoid making certain disclosures to defense counsel, but more typically due to the pressure of heavy caseloads and the failure of agencies to stress quality of the investigation over “speed,” i.e., the need to move on to the next investigation. Vickory noted that this practice was not taught during law enforcement training, and he suggested that prosecutors needed to have more direct interaction with junior officers doing the actual case investigations in order to ensure that they were exercising best practices. Finally, Vickory noted the importance of front-end education regarding Brady. In North Carolina, the relevant discovery statutes mandated a form of open file discovery, but law enforcement was often slow to deliver their records to the prosecutor, thus making it hard for DA offices to engage in timely disclosure. As a result, the state legislature enacted harsher sanctions, including making it a felony for a police officer to fail to turn over discovery.21
Kristine Hamann, the Executive Assistant District Attorney of New York’s Special Narcotics Prosecutor’s Office and chair of the Best Practices Committee, also endorsed a collaborative approach to training officers on Brady and other ethical obligations. Working together with New York State’s police agencies, the Best Practices Committee developed discovery, Brady, and Giglio training for police officers. This training can be taught by District Attorneys and the police, either together or separately. The goal of this training is to partner with police agencies, both large and small, to educate them on their ethical obligations and to standardize such training across the state.
c. Providing Feedback on Wrongful Convictions
In the same way that officers should be informed of the results of hearings and trials that flow from their police work, DA offices should also inform police officers about any wrongful convictions that arise out of investigations and arrests they conducted. Just as prosecutors can learn from wrongful convictions, and thereby seek to avoid mistakes or actions that contributed to their development, so can police. Again, the idea is that wrongful convictions should be viewed as a teaching moment for all law enforcement agencies.
At the Roundtable, former Ramsey County DA Susan Gaertner noted that when she launched her office’s post-conviction DNA review of closed cases, she involved the police immediately, meeting with leadership from all the Ramsey County police departments to explain why the DNA review was being conducted and how it would work. As the review progressed, she would also ask the police to get additional information or reinvestigate cases to locate old evidence. Although she did not conduct case-specific post-mortems, she did note that her office’s review project led to two major reforms in Ramsey County: (1) changes to the procedures used for eyewitness identification, and (2) a uniform evidence retention policy. Dawn Weber noted that, during her office’s post-conviction review of DNA in closed cases, her counterpart at the Colorado District Attorney’s Office kept the state police in the loop about cases that could potentially lead to exonerations. Likewise, she was prepared to open lines of communication with the Denver Police Department in the event her post-conviction review of a given case started to raise questions about the validity of the conviction (although to date this had not happened).
3. Videotaping Custodial Interrogations
Another area of reform that DA offices can pursue is the videotaping of custodial interrogations. This practice has gained widespread acceptance across a number of jurisdictions.22 The main effect of videotaping is to make confessions even more powerfully probative. A videotape of a confession typically eviscerates defense arguments of coercion or compulsion and will generally be dispositive evidence on suppression motions. A video is also the most powerful form of confession evidence. Finally, videotaped confessions can protect the police from civil liability while simultaneously operating as a deterrent against inappropriate interrogation practices. Videotaping confessions thus renders confession evidence more reliable and reduces the risk that a conviction will be obtained based on a false confession.
Nearly all of the Roundtable participants endorsed and came from jurisdictions that either videotaped custodial interrogations or were participating in pilot programs designed to test the feasibility of the practice.23 Notably, Roundtable participants’ experience has been that, after initial discomfort or resistance, police departments have accepted this reform because of a view that it actually improved their investigations. Chuck Wexler, Executive Director of PERF, stated that, when the suggestion was made approximately six or seven years ago to start videotaping interrogations, Boston Police Department homicide detectives were initially opposed to it. However, as time went on, they saw how videotaping could help them by eliminating defense arguments of witness coercion and the risk of civil liability. Suffolk County DA Conley agreed with Wexler’s assessment, noting that, while no one wants to be told what to do regarding their investigative procedures, the key to implementing videotaping in the Boston Police Department was having prosecutors explain the reasons for the reform and encouraging implementation; over time, the detectives eventually saw the merits of videotaping and endorsed the practice as well.
Santa Clara County DA Jeff Rosen was one of the majority of participants practicing in a jurisdiction that videotapes custodial interrogations of suspects who have been charged with, or have been suspected of committing, a violent crime (as defined by statute). The police departments in his jurisdiction have created written guidelines for the recording of custodial interrogations, which include the following:
(1) Recordings should be done whenever possible when conducting a custodial interrogation of a suspect who has allegedly committed a qualifying offense (defined by state statute);
(2) Miranda warnings should always be included on every recording of an interrogation;
(3) Officers should fill out a form indicating that they have conducted a recorded custodial interrogation, even if only to note the suspect’s refusal to be recorded. The form will provide useful information to prosecutors in complying with future discovery obligations; and
(4) If it is not possible to record a custodial interrogation due to, inter alia, equipment failure, lack of equipment, or a suspect’s refusal to cooperate unless recordation is suspended, officers should write a report explaining these circumstances. See Appendix C.
The above guidelines mirror recommendations recently made by a number of commissions appointed to study the causes of wrongful convictions.24
4. Eyewitness Identification Reforms
Another major reform area that DA offices should focus on involves eyewitness identification procedures. Eyewitness identification generally involves either a photo array or an in-person lineup administered by the police, often before the prosecutor has become involved in investigating the case. Eyewitness identification is a potentially problematic area, both because there is a growing body of scientific literature questioning its reliability and because it is the largest single contributing factor to wrongful convictions.25
Based on the discussion at the Roundtable, it appears that the “best practice” in this area is for lineups and photo arrays to be conducted double blind and sequentially. In a double blind procedure, the administering officer does not know which person in the lineup or array is the actual suspect. In this way, it is impossible for that officer to influence the witness, deliberately or not. In sequential administration, suspects are presented to the witness one at a time rather than all at once. Some studies have shown sequential administration to mitigate false positive identifications by making identifications less relative and more absolute.
“Roundtable participants’ experience has been that, after initial discomfort or resistance, police departments have accepted [the videotaped confession model] because of a view that it actually improved their investigations.”
That is, witnesses do not feel pressure to pick the person among the whole array who is most similar to the perpetrator, but instead compare each individual in the lineup or array to the actual perpetrator. Many Roundtable participants, including representatives from Santa Clara County, California; Suffolk County, Massachusetts; Dallas County, Texas; and Ramsey County, Minnesota, noted that the police departments in their counties implemented sequential double blind procedures in their jurisdictions and considered this reform to be a best practice.
a. Sequential Double Blind Administration
At the Roundtable, Suffolk County DA Dan Conley described how he convened a Task Force on Eyewitness Evidence (the “Task Force”) for the purpose of reviewing the investigative process for cases in which eyewitness identification was a significant issue and recommending appropriate reforms in the means and manner of investigation. The Task Force, which was co-chaired by Boston Police officials and Suffolk County prosecutors and also included members of the Boston defense bar, made a number of recommendations for improving eyewitness identification procedures, including using sequential double blind procedures to administer in-person line ups and photo arrays.
Santa Clara DA Jeff Rosen and former Ramsey County DA Susan Gaertner also advocated for this reform. Rosen’s predecessor in office had worked with the Santa Clara County police departments to implement these procedures, and he noted that there was no initial resistance to this reform—the police departments were genuinely concerned with ensuring that they were using scientifically sound policies and were not jeopardizing their criminal cases. Gaertner noted that when she sought to implement these reforms in Ramsey County, some police departments were initially resistant based on their belief that the administration would in practice prove unworkable, but she was able to convince them otherwise by rolling out the reforms on a pilot program basis throughout Ramsey County.
Darrell Stephens, Executive Director of the Major Cities Chiefs Association, also supported the use of sequential double blind procedures for in-person lineups and photo arrays because the blinded process was important to avoid any implication of unconscious bias, as well as to remove any defense argument that the identification was somehow faulty or flawed. In addition, both he and North Carolina 8th District DA Branny Vickory addressed the suggestion that smaller police departments would not be able to administer lineups and photo arrays in this fashion. Stephens stated that, when North Carolina changed its law to require sequential, double blind procedures, he observed that smaller counties in the state did not encounter great difficulty in changing their policies. Likewise, Vickory noted that the biggest concern in his jurisdiction was that smaller police departments would be overly burdened. However, he was pleasantly surprised at how well the police were able to adjust.
Ramsey, Suffolk, Santa Clara, and Dallas Counties all have written procedures governing the administration of sequential double blind lineups. While each county’s procedures had slight, nonmaterial variations, they all generally adhere to the following non-exhaustive guidelines:
(1) The lineup or photo array administrator must not be given any information about the identity of the suspect, and the investigating detective is not allowed in the room during the administration of the line-up;
(2) Lineups and photo arrays are to be shown sequentially, not simultaneously;
(3) When assembling a lineup or photo array, the suspect and “fillers” should match the witness’ description of the suspect;
(4) Witnesses should be instructed that (a) it is just as important to clear innocent persons as it is to identify the suspect; (b) the person who committed the crime may or may not be in the line-up; and (c) even if an identification is made, the entire line-up will be shown to them;
(5) The administrator should ask witnesses to describe, in their own words, how confident they are of their identification; and
(6) Lineup and photo array procedures should be documented in writing, including whether identification (or non-identification) was made and the source of all photographs and persons used in the lineup or photo array.
“when North Carolina changed its law to require sequential, double blind procedures . . . smaller counties in the state did not encounter great difficulty in changing their policies.”
See, e.g., Police Chiefs’ Association of Santa Clara County Line-Up Protocol for Law Enforcement, attached as Appendix D.26
Finally, the sequential double blind guidelines described above have been endorsed by a number of national and state commissions that have studied wrongful convictions.27
b. Simultaneous Double-Blind Administration
Police departments in New York State have opted for a slightly different practice. Working with the Best Practices Committee, they have developed new, innovative, and standardized identification procedures. The goal of these procedures is to create fair and neutral processes for eyewitness identifications. Kristine Hamann noted that the Best Practices Committee and its police partners want to be sensitive to the fact that eyewitness identification reforms had to be workable for both the NYPD and the smaller jurisdictions throughout the state.
With these goals in mind, Hamann stated that the Best Practices Committee reached out to smaller jurisdictions and discussed the possible range of reforms with District Attorneys from across New York State, as well as with smaller police departments. Based in part on these conversations and a review of the relevant research, the Sub-Committee recommended the use of simultaneous double-blind or blinded procedures. In general, the administrator will assemble photos in a folder to be presented to the witness. After giving the witness specific instructions to prevent the witness from looking to the administrator for guidance, the administrator will then stand behind the witness while the photographs are being viewed. Hamann also noted that in rural areas with smaller police forces, it was unavoidable that an administrator would sometimes know the identity of the suspect. However, the guidelines for the procedures and training of police officers emphasized that the administrator’s knowledge of the suspect should not inadvertently or purposefully influence the witness.
c. Considerations for Smaller DA Offices
Based on the experience of Roundtable participants, administering sequential double blind lineups and photo arrays has not been as burdensome as initially thought. Indeed, in the case of photo arrays, there will likely be little burden associated with assembling a photo packet of the suspect and fillers. Of course, smaller police departments may have to think creatively to find a true double blind administrator, such as using office or staff personnel, as is done in some police departments that are in DA Branny Vickory’s district. However, if smaller DA offices and police departments are concerned about administrative burdens, they should consider phasing in the procedure through participation in pilot programs in conjunction with larger offices across the state or county, at least insofar as the reforms are applied to photo arrays.
B. Forensic Labs
Reforming the field of forensic science has been the subject of a huge volume of research, writing, and study. However, it was not a primary focus of discussion at the Roundtable, nor is it a focus of this Report. Instead, the Roundtable and this Report focus on reforms that prosecutors can effectuate with the cooperation of forensic labs. Two main possibilities emerge: working with crime labs to develop evidence retention policies and developing policies addressing DNA hits that are found in reinvestigations of closed cases.
1. Evidence Retention Policy
There was general consensus amongst Roundtable participants that DA offices should work with their forensic labs to develop a uniform evidence retention policy for two reasons. First, preservation of evidence would allow inmates the opportunity to seek DNA testing to prove they were wrongfully convicted. Second, evidence retention would provide an opportunity for DA offices to apprehend the right individual in the event a wrongful conviction occurred.
The Roundtable participants agreed on the importance of preserving evidence in order to be able to conduct meaningful post-conviction investigations of DNA-based claims of actual innocence. Chuck Wexler, Executive Director of PERF, noted that one reason Dallas County produced so many exonerations was that its crime lab had preserved a substantial amount of evidence that could later be tested. Russell Wilson, chief of the Dallas CIU, agreed with this observation, noting that Dallas’ crime lab saved roughly 30,000 rape kits with various kinds of DNA evidence, some of which were eventually tested in response to post-conviction DNA requests. Bonnie Sard, chief of the Manhattan CIU, echoed Wexler and Wilson’s observations. She noted that the Manhattan crime lab had a backlog of approximately 17,000 rape kits that were all eventually tested. As a result, her office received very few requests for post-conviction DNA testing.
Former Ramsey County DA Susan Gaertner also emphasized the need for an evidence retention policy. Her office reviewed 116 cases to see whether misidentification was a critical issue and whether DNA or other biological evidence existed that could be tested. After finding 3 cases for potential review, only 1 case could move forward with DNA testing— evidence from the other 2 cases had been disposed of in the ordinary course of cleaning out evidence retention rooms. Shortly thereafter, Gaertner worked to implement the Ramsey County Uniform Evidence Retention Policy.
The Policy includes the following written guidelines for evidence retention, which can serve as a model for DA offices seeking to implement similar reforms:
(1) In uncharged cases involving violent crimes (such as homicides and criminal sexual assault), DNA evidence should be kept permanently;
(2) In charged cases involving violent crimes, evidence should be retained until a defendant’s sentence has expired, unless the prosecutor agrees to an earlier disposition. Where identity of the perpetrator was at issue, the prosecutor may not agree to early destruction without first notifying the defendant and defense counsel to provide them with an opportunity to object;
(3) For trial exhibits held by the clerk of court, the clerk must seek approval from the prosecutor prior to early disposition of the evidence. Exhibits containing fingerprint or DNA evidence cannot be disposed of without first giving notice to the defendant and defense counsel to provide them with an opportunity to object; and
(4) For evidence held by law enforcement, they must seek approval from the prosecutor prior to early disposition of the evidence. Exhibits containing fingerprint or DNA evidence cannot be disposed of without first giving notice to the defendant and defense counsel to provide them with an opportunity to object.28
“… post-conviction DNA testing helps prosecutors fulfill their commitment both to exonerating the wrongfully convicted and to ensuring that the right perpetrator is identified and apprehended.”
2. DNA Hits in Closed Cases
Prosecutors should also work to establish policies regarding post-conviction DNA testing in closed cases. These policies are important for two reasons. First, any CIU that investigates claims of actual innocence will likely encounter requests for postconviction DNA testing. These requests may result in “new” DNA tests suggesting that an individual or individuals other than the defendant were present at the crime scene. This information will obviously be of importance to the prosecutor conducting the investigation, so it is imperative that procedures exist that will allow this information to be communicated to the CIU in a timely fashion. Second, and more importantly, post-conviction DNA testing helps prosecutors fulfill their commitment both to exonerating the wrongfully convicted and to ensuring that the right perpetrator is identified and apprehended. While CIUs should strive to exonerate the innocent, they must also work to identify and prosecute the correct person for the crime.
As requests for post-conviction DNA testing grow, and as DNA testing capabilities become more sophisticated such that previously untestable materials become amenable to testing, it is likely that prosecutors will encounter the following scenario: DNA profiles from more than one individual may sometimes be found at a crime scene. When forensic lab analysts identify these profiles, they will generally enter them into CODIS. Once this occurs, there is a possibility that the “new” profile will be linked to an individual whose identity was unknown at the time of the crime. Thus, it is possible that a previously unknown DNA profile from a closed case will identify an individual who was not actually the suspect charged and convicted of the crime. In these instances, the question of the newly identified individual—and his or her relationship to the crime scene and the crime—may raise questions about whether a DA’s office has convicted the right person.
In order to ensure that its office was committed to both exonerations and convictions of the right people, the Manhattan CIU established a policy that uses CODIS hits in closed cases to determine whether a wrongful conviction has occurred. The policy includes the following guidelines:
(1) The Office of the Chief Medical Examiner directly notifies the Manhattan DA—not the NYPD—of all newly discovered DNA matches, including non-suspect DNA matches;
(2) In pending cases, the prosecutor assigned to the case is made aware of the non-suspect DNA match and will disclose this information to the suspect-defendant in the course of discovery;
(3) In closed cases, the Forensic Sciences/Cold Case Unit (“FSCCU”) will review the case file to understand the significance of the new match, the connection between the new match and the case, and whether the defendant was aware at the time of conviction of this DNA evidence; and
(4) The Office will then decide the proper course of action depending on where on the Brady spectrum the material falls. See Appendix A, Ex. 1.
This Report has provided a list of feasible and effective measures to avoid wrongful convictions that are based on empirical evidence that includes the on-the-ground use of these measures by reformminded prosecutors around the country. A prosecutor’s office that adopts the top ten list of best practices discussed in this Report demonstrates a commitment to the highest ideal that all of our nation’s prosecutors should seek: justice in all cases and convictions with integrity.
1 Atul Gawande, The Checklist Manifesto: How to Get Things Right (2009).
2 Brandon L. Garrett, Convicting The Innocent: Where Criminal Prosecutions Go Wrong (2011).
3 See Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions at 8-10, 29-31 (April 4, 2009), available at http://www.nysba.org/Content/Content-
Folders/TaskForceonWrongfulConvictions/FinalWrongful- ConvictionsReport.pdf (last visited on June 11, 2012); “Criminal Courts Should Provide a Brady Checklist, ABA Says,” available at http://www.abajournal.com/news/article/criminal_
courts_should_provide_a_brady_checklist_aba_says/ (last visited on June 11, 2012); “Report by the Criminal Courts Committee and Criminal Justice Operations Committee Recommending the Adoption of a Brady Checklist,” available at http://www2.nycbar.org/pdf/report/uploads/7_20072170-
ReportrecommendingtheadoptionofBradychecklist.pdf (last visited on June 11, 2012); Department of Justice Memorandum for Department Prosecutors from David W. Ogden, available at http://www.justice.gov/dag/discovery-guidance
. html (last visited on June 11, 2012); California Commission on the Fair Administration of Justice Final Report on Wrongful Convictions at 15-16, available at http://www.ccfaj.org/documents/
CCFAJFinalReport.pdf (last visited on June 11, 2012).
4 Garrett, supra at note 2; Samuel R. Gross & Michael Shaffer, Exonerations in the United States, 1989-2012: Report by the National Registry of Exonerations 40 tbl.13, 43-49 (May 2012), available at http://www.law.umich.edu/special/exoneration/
Documents/exonerations_us_1989_2012_full_report.pdf (last visited on June 11, 2012).
5 See, e.g., State v. Henderson, 208 N.J. 208 (2011); State v. Chen, 208 N.J. 307 (2011). See also State v. Cabagbag, No. SCWC- 30682, 2012 WL 1764064 (Haw. May 17, 2012) (holding that courts are required upon request of defendant to give specific jury instruction evaluating the trustworthiness of eyewitness identification when the identification is central to the case).
6 Garrett, supra at note 2; Gross & Shaffer, supra note 4, at 40 tbl.13, 53-56.
7 See CCFAJ Final Report on Wrongful Convictions at 13-14. Establishing Conviction Integrity Programs In Prosecutors’ Offices
8 See CCFAJ Final Report on Wrongful Convictions at 13-14. California recently passed a law prohibiting prosecutors from seeking convictions based solely on jailhouse informant testimony and requiring the presentation of additional evidence corroborating the informant’s testimony. See Editorial, “Unreliable Witnesses,” Los Angeles Times (Aug. 11, 2011), available at http://articles.latimes.com/2011/aug/11/opinion/
la-ed-informants-20110811 (last visited on January 12, 2012). See also Pennsylvania Report of the Advisory Committee on Wrongful Convictions at 5-6 (September 2011), available at http://www.jsg.legis.state.pa.us/
…/9-15-11%20rpt%20-%20 Wrongful%20Convictions.pdf (last visited on June 11, 2012); Final Report on the New York State Bar Association’s Task Force on Wrongful Convictions at 14, 114-20 (April 4, 2009), available at http://www.nysba.org/Content/ContentFolders/
TaskForceonWrongfulConvictions/FinalWrongfulConvictionsReport. pdf / (last visited on June 11, 2012); Thomas P. Sullivan, “Preventing Wrongful Convictions—A Current Report from Illinois,” 52 Drake L. Rev. 605, 612-13 (2004); ABA Section of Criminal Justice Report to the House of Delegates Regarding the Use of Jailhouse Informant Testimony (February 2005), available at http://meetings.abanet
. org/webupload/commupload/CR209700/relatedresources/ ABAInformant’sRecommendations.pdf (last visited on June 11, 2012); Report of the ABA Criminal Justice Section’s Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process at 66-78 (2006), available at http://apps.americanbar
. org/crimjust/committees/innocencebook.pdf (last visited on June 11, 2012); Hon. Stephen J. Trott, “The Use of a Criminal as a Witness: A Special Problem,” (October 30, 2007), available at http://www.aclu.org/files/pdfs/drugpolicy/informant_
trott_outline.pdf (last visited on June 11, 2012).
9 See Keith A. Findley, Tunnel Vision, in Conviction of the Innocent: Lessons from Psychological Research 316-17 (Brian L. Cutler ed., 2012); Samuel R. Gross & Michael Shaffer, Exonerations in the United States, 1989-2012: Report by the National Registry of Exonerations at 40 tbl.13, 65-66 (May 2012), available at http://www.law.umich.edu/special/exoneration/
Documents/exonerations_us_1989_2012_full_report.pdf (last visited on June 11, 2012). Cf. Dan Simon, In Doubt: The Psychology of the Criminal Justice Process 22-25 (2012).
10 See Gross & Shaffer, supra note 9, at 66.
11 See Findley, supra note 9, at 303-19; Simon, supra note 9, at 22-25.
12 See Findley, supra note 9, at 316.
13 National District Attorneys Association, Prosecution Standards and Commentary, available at http://www.ndaa.org/
14 DA offices should look to relevant state statutes and ethical rules to determine whether their jurisdictions have statutorily defined Brady obligations.
15 See http://www.americanbar.org/groups/profe ... nsibility/
publications/model_rules_of_professional_conduct/ rule_3_8_special_responsibilities_of_a_prosecutor.html (last visited on June 11, 2012).
16 The District of Columbia United States Attorney’s Office engages in a similar practice: It maintains a computerized database, accessible to all prosecutors, which identifies whether any District of Columbia Metropolitan Police Department officer has any issues that must be considered for possible disclosure. This database is called the “Lewis list” after a case decided in the District of Columbia Court of Appeals.
17 This protocol was included as a template for conducting post-conviction DNA reviews in the American Prosecutors Research Institute’s DNA Evidence Policy Considerations for the Prosecutor (September, 2004).
18 See http://www.co.ramsey.mn.us/NR/rdonlyres
CFFF14C4- 0F44-4BD9-9995-0186E9C17085/15111/RamseyCountyEvidenceRetentionPolicy1. pdf (last visited on June 11, 2012).
19 Manhattan CIU Chief Sard noted that, when the Manhattan DA launched its program, she spoke with Dallas County DA Craig Watkins and he advised her that the CIU should seek to investigate cases where the defense version of the case “makes more sense than what the prosecutor presented at trial.” With that broad definition in mind, Sard noted that the CIU looked for red flags in an inmate’s case, and that the red flags did not necessarily need to be “new” evidence so long as the defense theory tended to support a colorable claim of actual innocence.
20 The term “actual innocence” may be statutorily defined in certain jurisdictions. Accordingly, an office should consult relevant statutes to determine whether it operates in a jurisdiction with a statutory definition.
21 See N.C. Gen. Stat. 15A-903(d).
22 See http://www.law.northwestern.edu/wrongfulconvictions/
issues/causesandremedies/falseconfessions/PDDEPTLIST.pdf (updated August 4, 2009) (last visited on June 11, 2012).
23 While the NYPD does not routinely videotape custodial interrogations, Katherine Lemire, Counsel to the Police Commissioner for the State of New York, noted that the NYPD was currently participating in a pilot program exploring the use of this technique.
24 See CCFAJ Final Report at 34-39 (2008), available at http:// http://www.ccfaj.org/documents/CCFAJFinalReport.pdf
(last visited on June 11, 2012); Thomas P. Sullivan, “Preventing Wrongful Convictions—A Current Report From Illinois,” 52 Drake L. Rev. 605, 607-8 (2004); Timothy Cole Advisory Panel on Wrongful Convictions: Report to the Texas Task Force on Indigent Defense at ii, 46-70 (August 2010), available at http:// http://www.txcourts.gov/tidc/pdf/FINALTCAPresearch.pdf
(last visited on June 11, 2012); Final Report on the New York State Bar Association’s Task Force on Wrongful Convictions at 6, 104-112 (April 4, 2009), available at http://www.nysba.org/
Content/ContentFolders/TaskForceonWrongfulConvictions/ FinalWrongfulConvictionsReport.pdf (last visited on June 11, 2012); Report of the ABA Criminal Justice Section’s Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process at 11-23 (2006), available at http://apps.americanbar
. org/crimjust/committees/innocencebook.pdf, (last visited on June 11, 2012); Pennsylvania Report of the Advisory Committee on Wrongful Convictions at 5, 107-27 (September 2011), available at http://jsg.legis.state.pa.us/resources/documents/
ftp/documents/9-15-11%20rpt%20-%20Wrongful%20Convictions. pdf (last visited on June 11, 2012).
25 Garrett, supra note 2.
26 See also Suffolk County Report of the Task Force on Eyewitness Evidence (July 2004), available at http://www
. suffolkdistrictattorney.com/press-office/reports-and-official- correspondance/report-of-the-task-force-on-eyewitness- evidence/ (last visited on June 11, 2012); Ramsey County Resources for Criminal Justice Professionals regarding Eyewitness Identification Procedures, available at http://www
. co.ramsey.mn.us/attorney/SPDNA.htm (last visited on June 11, 2012); Dallas County Police Department Forms Regarding Blind Sequential Photographic Line-Ups (2009), available at http://crimeblog.dallasnews.com/archive ... laspolice-
to-begin-using-s.html (last visited on June 11, 2012).
27 See CCFAJ Final Report at 27-28 (2008), available at http:// http://www.ccfaj.org/documents/CCFAJFinalReport.pdf
(last visited on June 11, 2012); Final Report on the New York State Bar Association’s Task Force on Wrongful Convictions at 10- 12, 45-73 (April 4, 2009), available at http://www.nysba.org/
Content/ContentFolders/TaskForceonWrongfulConvictions/ FinalWrongfulConvictionsReport.pdf (last visited on June 11, 2012); Report of the ABA Criminal Justice Section’s Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process at 23-45 (2006), available at http://apps.americanbar
. org/crimjust/committees/innocencebook.pdf, (last visited on June 11, 2012); Pennsylvania Report of the Advisory Committee on Wrongful Convictions at 5, 21-82 (September 2011), available at http://jsg.legis.state.pa.us/resources/documents/
ftp/documents/9-15-11%20rpt%20-%20Wrongful%20Convictions. pdf (last visited on June 11, 2012).
28 See Ramsey County Resources for Criminal Justice Professionals regarding Eyewitness Identification Procedures, available at http://www.co.ramsey.mn.us/attorney/SPDNA
. htm (last visited on June 11, 2012).