Oklahoma Criminal Defense Blog

New Jersey’s Supreme Court has recently ordered an overhaul in the procedures judges and juries use to treat evidence from a police lineup.  Police have always resisted encroachment on their own rules for lineups.

The Court recognized decades of research that shows the traditional procedures used for lineups have problems.  The result has been that innocent people convicted and sent to prison.   The problem has been that police, often unconsciously, give subtle hints as to which person the witness should identify.  These hints never show up in any record, so they cannot be questioned.  Both the police and the crime witness even deny that such hints exist, yet they do exist, and they have influenced the identifications of suspects in court. When that identification is the sole or strongest evidence of a suspect’s guilt, the flawed identification can be the basis for the conviction of an innocent person.

Finally there are consequences for police who refuse or fail to follow proper procedures. Courts have always been reluctant before to sanction such careless or deliberate conduct by the police.  New Jersey is one of the fifty states, but there are more than 16,000 law enforcement agencies in the country that deal with suspect identification.  Many remain skeptical about the research that faults their present procedures.  Many resent the suggestion that they could be having an affect on the accuracy of the responses of witnesses in the identification.  This resentment is no less because, research shows, the influence is unintentional.

Most police identifications are conducted the same way they have been for years and years.  Most use photos rather than an array of actual persons because photos are much easier to assemble.  The standard requirement is that all the suspect photos are supposed to be of similar race, facial hair, age so as not to make one of them obviously prominent.

More than 2,000 scientific studies have shown problems with witness accounts.  Add to that at least 190 people who were convicted by eyewitness testimony and later proved to be wrongly convicted by that gold standard of science, DNA evidence.   Those who have studied the field estimate that there are about 75,000 witness identifications each year, and some studies suggest about a third are incorrect.

Larger police departments are taking the lead in adopting the new procedures which the the New Jersey court has mandated in its jurisdiction.  In Dallas, elaborate precautions are taken to keep out any taint that might cause a question later in the courtroom or on appeal.  Witnesses are sent to a special unit of the police department that is dedicated to lineups and the detectives there have no other relationship to the case or the witnesses.  The witnesses are read instructions and shown the photos by specially trained police officers.  The photos are shown one at a time, rather than all at once.  At each photo, the witness is asked to indicate how confident he or she is about their reaction to that photo.  The entire process is recorded by videotape in case any questions later arise during the judicial process about what happened in that identification.

Naturally, the police in Dallas resented new procedures at first.  They felt their integrity was being challenged.  But after thorough training that included explanations of memory functions and the psychology behind the dynamics, the procedures began to gain some believers in the police department.   Veteran detectives notices over the years that during lineups that police gave small facial cues when a witness picked a suspect the police had in mind.

Police departments rarely make any changes until wrongful convictions become an issue, and there have been many DNA exonerations of death row inmates from convictions in Dallas.

Denver Police Department is another one that has adopted some of the new procedures about six years ago.  When they really looked at the procedures they were using, they concluded their practices were suggestive.  They have found that the new procedures help, rather than hurt, their investigations.  Only 15 miles away in Aurora, Colorado, police are doing things the same old way.  Specifics may be hard to come by since there are is no written policy on lineups.  They do not follow the National Justice Institute guidelines because state law does not require them to do so.  Ordinarily, the investigating officer in the case conducts the lineup, and it is important to him to see that the witnesses are careful in their identifications.  However, no particular consistent steps are taken to prevent influencing the identification.

For years judges have disallowed evidence of studies that explained these problems in lineups, so the juries never heard any evidence that offered the least question to the emotionally powerful testimony of an eyewitness.  The juries never got a chance to see anything behind that testimony, what did or might have suggested or tainted that testimony that was now so positive and unshakable in the courtroom.

A recent study has put some values on the criminal justice system in Oklahoma.  The system is expensive and not very effective, consultants from the nonprofit Council of State Governments’ Justice System have urged in their preliminary report.

House of Representatives Speaker Kris Steele has moderated a presentation in three cities to date, Lawton, Enid and, most recently, Muskogee.  The study is based on what it says is the data, and is aimed to reduce state spending in corrections so the savings can be reinvested in new ways to decrease crime and strengthen neighborhoods.  The presentation is being made by a team of experts who are part of the Council’s Reinvestment program and claims to have helped a dozen states, including Kansas and Texas, redesign their corrections systems.

Speaker Steele remarked that Oklahoma has increased spending on corrections by 41 percent, yet violent crime has remained unchanged.  He said, “at least 36 other states have seen decreases in violent crime during this same period.”

The project director of the Reinvestment program, Marshall Clement, said his team had focused on the major areas: Oklahoma has crime rates that are unchanged or are rising, unlike the rates in the national trends; a high percentage of inmates in Oklahoma are being released without supervision; and the incarceration population in Oklahoma is increasing at a rate that is unsustainable.  The rates for murder over the last decade has declined 13 percent nationally, yet has remained unchanged in Oklahoma.  During the same period, the rates for robberies has declined 18 percent nationally while increasing at the rate of 15 percent in Oklahoma.
What has caused these results?   A tight cause and effect is hard to show in all cases of population behavior.  Clement opined that perhaps the decline was influenced by the decline in the number of police per capita, at least in Tulsa and Oklahoma City.  He noted that the police force in Norman had increased by 18 percent with adjustment for population increase while witnessing a 48 percent decrease in violent crime.  Of course, the only certainty from much of this statistic-quoting is a headache. George Berkeley reminds us that finding effect from cause can be nothing but speculation.

One of the interest the program pointed out does merit looking at.  Many inmates prefer to serve a little more of their sentences before obtaining full release from their sentence rather than getting out earlier under parole and all the supervision requirement of parole.  The federal system requires supervision under “supervised release” after every completion of every sentence.  You would expect their recidivism rates to be better, just from that.   But the federal system seems to have an inexhaustible supply of money to fund their programs.  And one of the objections made by Oklahoma inmates to accepting to the supervision of parole, so it is reported, is the cost of supervision.  That is understandable because the $100 per month charge for this and other such charges can add up for someone who is barely earning enough to pay his expenses and the court costs that are still waiting to be paid.

The federal probation officers actively and successfully assist in getting their charges jobs and charge fees according to the income that inmate is earning.  That system is designed for the inmate to succeed, unlike the state system that tends to dump a pile of rules and regulations on a few overworked parole officers who can barely keep up, much less help their parolees meet the extra challenges of re-entering society, given all the challenges they face.

Inescapable in the discussion of exploding prison populations was the issue of 85 percent rule that requires those sentenced for certain crimes to serve 85 percent of their sentence.  Oklahoma is going to need an additional 3,000 beds in the next few years, just to hold the increase in inmates that results from the 85 percent rule.

More Americans than ever before are seeking jobs as they are released from prison.  As public awareness grows that prisons are too crowded and stiffer sentences and increased enforcement of nonviolent crimes is costing the taxpayers too much, those being released carry their criminal histories in their search for jobs.

Nearly 65 million Americans have criminal records of an arrest or conviction, according to the National Law Project.   Many of them have left their criminal pasts behind them and others were convicted of minor crimes or of crimes that appear to have little relevance to the jobs they seek.

In the old days, employers had to search court records physically to do a background search of prospective employees.  Now, it’s easy via the Internet and the many vendors who offer screening and background checks at an affordable price.  Any job applicant can now be searched quickly and, unlike the old days, nationally.

Almost 90 percent of companies surveyed last year by the Society for Human Resources Management reported they conducted criminal background checks on some or all their job candidates.  This has made finding employment extremely difficult for millions.

Government guidelines demand that employers take into account the severity of the offense in question, the length of time that has passed since the offense and its relevance to job in question.   However. workers’ advocates claim many companies screen out anyone who has a hint of criminal activity in his or her background.  Sometimes a record of an arrest alone, with no conviction, is enough to be denied a job.

Employers say they are in a dilemma.  They say they can be sued if they fail to screen an employee who later harms someone.  And some regulations, such as in the securities industry, require only those with clean records be employed.    Employers want to be able to choose employees who, when all other things equal between candidates and when applicants are plentiful and jobs scarce, have no legal issues in their past.

There is no federal law that prohibits discrimination against someone with a criminal record, but the Equal Employment Opportunity Commission has set guidelines on how employers can use these records.  Since African-Americans, Hispanics and other minorities have higher rates of criminal convictions, a broad-brush policy that screens out anyone with a criminal history would necessarily discriminate against these groups and would be unlawful under Title VII of the Civil Rights Act of 1964.

The E.E.O.C. has filed several lawsuits involving background checks.  There are about 7 of them pending under Title VII now, but one brought against an employment agency named Peoplemark was dismissed by the court because the E.E.O.C. could not prove by expert testimony that the defendant has committed discrimination.  Private civil lawsuits have been lodged under the Fair Credit Reporting Act on the basis that employers must notify applicants rejected based on a consumer reporting agency criminal background check.  At least three of these have been settled, presumably with some payment resulting to the plaintiffs.

All kinds of companies have been sued over criminal background checks, including screening companies, transportation companies, a consulting firm, and even the Census Bureau.  The attorney general of the State of New York, where state law about background checks is stricter than the federal laws, has settled with some companies after investigating them for violations. The companies include Radio Shack ands ChoicePoint.

It is understandable why employers have been afraid to hire those with criminal records in light of past statistics that showed a third of those released from prison were returned within three years.  More recent studies of recidivism, however, are showing a change in trends.  Studies called “redemption research” have found the risk that a previous offender will be arrested again decreases substantially as time goes on and eventually it becomes no different from someone else of the same age with no criminal record.  For first time offenders, this point of redemption occurs between 7 and 10 years after the conviction, although it occurs a lot earlier for older first offenders.  It takes longer, sometimes significantly longer, for certain crimes and for multiple convictions.