Up   |  May 27, 2012

The reasons behind wrongful convictions

Up w/ Chris Hayes panelists Liliana Segura, associate editor of The Nation magazine; Michael Brendan Dougherty, politics editor of BusinessInsider.com; New York Daily News columnist John McWhorter; and Barry Scheck, co-director of the Innocence Project, talk about why witnesses sometimes wrongly identify perpetrators, and how those errors contribute to false convictions.

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This content comes from a Full-Text Transcript of the program.

HAYES: Barry Scheck of the Innocence Project . Before break, I asked you one of the things that crops up a lot in exoneration in false convictions is unreliable eyewitness testimony and you talked about reforms. Why does eye witness testimony, why does it seem to play a factor so often in these exonerations? And what can be done about it?

SCHECK: Well, first of all, you noted before we broke, Brandon Moon .

HAYES: Yes.

SCHECK: He was my client, we should say on Memorial Day that Brandon was four years in the United States Air Force before he went to school at the University of El Paso and was wrongfully identified and wrongfully convicted. A few things about Brandon 's case that illustrates the problem. They used eye witness identification techniques that were going to maximize the chances of error in that case, and we now know -- and the New Jersey Supreme Court has just decided a landmark decision on this, Henderson , that recognizes this 30 years of social science , in new ways that if you administer eye witness identification methods, you dramatically reduce the number of errors without reducing correct identification. Simple things like first of all, you might be shocked, but a key to science, the person who administers the photo array of the line-up should be blinded. Should not know the identity of the suspect, because we all know the observer bias effects that happen. You should give a warning to the witness, the real perpetrator may not in photo array of the lineup. For 25 years, we've known that dramatically reduces errors, without reducing the correct identification.

HAYES: You don't have to come up with an answer.

SCHECK: Right, because people will naturally guess. There are a number of other things we know about that and things you can say to juries about the effects of cross-racial identification, which are profound. And --

HAYES: Explain that.

SCHECK: Well, we -- it's well known that certainly majorities, race, people, this country would be Caucasian , are very bad at identifying people of another race, blacks and it works the opposite way in other countries where blacks are the majority. It works --

HAYES: That's interesting.

SCHECK: There's some, neuroscience can explain this, by the way. But that is a known and clear effect. And you see it reflected in the data.

So eyewitness identification is an area where if we implement reforms, which by the way, we just got in Texas . We have in Ohio and I hope the New York state legislature before it adjourns this year. We've had this bill now, that is recommended by the criminal justice council, that's the courts, Judge Lipmann and everybody else, finally gets it. It's very hard to get this legislation sometimes in New York as opposed to, I don't know, Ohio and Texas . Why am I having these problems?

HAYES: You report a lot on this. Do you great reporting on this. Do you think there's an appetite for these kinds of reforms?

SEGURA: I do. But I think a huge piece of this and what's so revealing about this exoneration database is also the role of misconduct. There's error and then there's the misconduct, whether it's police misconduct , prosecutorial misconduct and the lack of incentive to go back and revisit errors and their implications. The fact that these are political positions, and people build their careers on these prosecutions I mean, has a huge role to play.

SCHECK: There's a few things, we're talking about science, right? And error reduction. And a very simple thing. If you have an error that's a total system failure, what you should go back and do in any institution, in any business, is an audit. You would say, OK, here's a cop --

HAYES: The plane crashed, why did it crash?

SCHECK: Tell the truth. Exactly, you ask what went wrong, how can we fix it . You do a root cause analysis. So, we do not do audits of cops who bring about, who lie, right? We do not look at district attorney who is do misconduct. We do not systematically audit defense lawyers who are completely incompetent and don't do the job. We don't take that kind of approach. Now, we've been recommending that, we're looking at conviction integrity units, where we work with our colleagues and district attorneys offices to do that kind of auditing. But it's not done. We brought it to crime labs. Brandon Moon -- not only bad eye witness procedures, but the serology in this case was -- because we were doing serology on the semen there -- was completely screwed up. We demonstrated after Brandon was exonerated with DNA , we got a forensic science commission passed in Texas . They have now conducted an examination of the Brandon Moon case and saw that the lab was analyzing the semen improperly and now going back and trying to audit old cases. So we've been doing this in jurisdictions across the country. And this Innocence Movement is spreading.

HAYES: Barry Scheck , director of the Innocence Project , thanks so much for joining us today.

SCHECK: My pleasure.

HAYES: Come back soon. What we should know for the week ahead, right after this.