Recent legislation is changing how Louisiana’s legal system handles eyewitness testimony, the executive director of Innocence Project New Orleans said Monday.
Jee Park told the Baton Rouge Press Club a law that went into effect this year requires every law enforcement agency in the state to have a written policy for eyewitness statements that follows best practices. One of the requirements is that, when presenting an eyewitness with photos of possible suspects, the witness shouldn’t be told investigators have identified a suspect.
When witnesses believe law enforcement officers have identified the perpetrator, they often feel pressured to pick the “right” person, which can lead to mistakes, Park said. Instead, investigators should stress the criminal may not be among the people presented.
Also, the officer who is meeting with the eyewitness should not be the lead investigator and should not know if there is a primary suspect. Otherwise, that officer might use verbal or nonverbal cues, even inadvertently, that lead the witness to pick a certain photo, Park said.
If a witness does make an identification, law enforcement should be careful to record how confident the witness is with the identification, Park said. In some cases, a witness who wasn't certain initially will convince themselves they are 100 percent sure by the time of the trial.
Before this year, Louisiana was one of only two states, along with Nebraska, that didn’t allow experts to testify about the many factors that can affect the accuracy of eyewitness testimony, she said. Lawmakers changed that law during this year’s session.
For example, many people believe that witnesses to a traumatic event, such as an armed robbery or rape, will be able to recall details of that experience because of the traumatic nature of the event.
“That’s actually not true,” Park said. In fact, she said, if confronted with a weapon, people often won’t be able to accurately recall their assailant’s face because at the time they were focused on the weapon.
Research also has called into question the practice of creating composite drawings or images made up of different features, she said.
“Studies have shown we don’t take faces in piecemeal by how their nose looks or how their eyes look,” Park said. “We take faces in holistically.”
Under the new law, a judge can allow an expert to tell jurors about relevant psychological factors that might have affected eyewitness testimony.
Innocence Project New Orleans would like for Louisiana to better compensate wrongfully convicted prisoners. Existing law allows for up to $80,000 upfront and up to $25,000 per year for 10 years, no matter how long someone was wrongfully imprisoned. Florida allows for up to $2 million to be paid, while Kansas allows $60,000 per year for every year in prison, Park said.
In Louisiana, the only way to get a conviction overturned is if there has been a constitutional violation, such as a lack of due process or adequate representation, Park added when asked about other changes she would like to see.
IPNO has helped to exonerate people simply because there were better ways to scrutinize evidence than was available at the time of the trial, which they were only able to use with the cooperation of the relevant district attorneys. Not every district attorney is cooperative.
Other states allow for a “freestanding innocence claim pathway” to getting convictions reviewed, Park said.
“You don’t need to have a constitutional legal hook for it,” she said. “It can be just new evidence that comes to light. That should be enough to get a judge or a prosecutor to reconsider the evidence.”