Good Faith Convictions of the Innocent Are Totally Different!
As was expected, the Supreme Court declined to create a heightened standard for judges to use in evaluating the admissibility of eyewitness testimony, despite the overwhelming evidence that it is much less reliable than commonly assumed. The opinion, written by Ginsburg, argued that judges only need to conduct an inquiry into whether an eyewitness ID is reliable if there is actual police misconduct. I have a piece at the Prospect arguing that this doesn’t actually make any sense:
The intent of the police might be relevant to whether officers should be held liable in the case of a wrongful conviction. But if a lineup is so suggestive as to be unreliable, the intent of the police is beside the point. The majority’s decision to limit the judicial exclusion of eyewitness testimony to cases where there has been police misconduct has the virtue of establishing a clear rule. But this rule is not logically related to its asserted purpose of screening out excessively unreliable evidence. To an innocent person sitting in jail because of erroneous eyewitness identification, whether he was actually framed is not the crucial issue. Unreliable evidence doesn’t magically become more reliable because the police officers who produced the identification acted in good faith.
Sotomayor is right — the standard should be whether a lineup or photo array is so suggestive as to be unreliable, and whether an ID resulting from overly suggestive procedures is the result of active rigging or just the good-faith application of bad procedures is in this context neither here nor there. Alas, her dissent was solo.
Meanwhile, Clarence Thomas wishes to emphasize that the due process clause does not actually require any standard of fair police procedures in obtaining eyewitness IDs at all and the Court was wrong to have so decided previously. And, yet, it’s not even his worst opinion this week….
It must be nice for Thomas to feel as secure as he does as one of the Conservative House Nigrah’s, so that HE will never have to worry about the police using procedures that are unfair on his tender hide.
What an unmitigated asshole!
The argument that intentions or motivations matter more than actual actions and results seems to dominate modern day moral discourse. It is okay to imprison millions of innocent people as long as you didn’t mean it. Usually this argument comes from the left to defend things like Stalin’s national deportations. The claim being he did not mean for a quarter of them to die from malnutrition, disease, and exposure in their first five years of exile. But, given its success in such cases it should not surprise me to see it adopted by a ‘conservative’ supreme court in the US to justify imprisoning innocent people.
Has this argument been made about Stalin since 1955?
Aleksandr Statiev made the argument that the deportations were not genocide because their motive was not to kill the population in Journal of Genocide Research in 2009.
That’s not an argument coming from “the left”. That’s an argument coming from some obscure asshole nobody but other obscure assholes has ever heard of.
Also, that’s not an argument that Stalin wasn’t morally culpable, it’s an argument that it doesn’t count as “genocide”, which has always had a legalistic definition.
Right. His murder of political enemies wasn’t “genocide” but that doesn’t mean it wasn’t evil.
How are Volga German children political enemies?
Statiev in point of fact argues that there was no intent to kill anybody during the national deportations that wiped out a third of the Chechens in 1944-1948. The Soviet government was well aware that tens of thousands of the deportees would die if they sent them to Kazakhstan and Kyrgyzstan under the existing conditions. They did it anyways. To me that is intent to kill a part of the population. To Statiev and other sophists unless your sole goal is to kill the population then the deaths are unintentional and there is no legal or moral culpability for the deaths. They were just unfortunate accidents due to war time shortages. I find this position to be completely morally indefensible. The Stalin regime knew what it was doing and knew the deportations would kill large numbers of people. To me that is qualifies as intent to kill them. I am almost part of a very small number of historians in the English speaking world to disagree with the Statiev position.
Usually this argument comes from the left to defend things like Stalin’s national deportations.
Where can I read the left making this argument?
Try Grover Furr for starters. He also argues that all the deported men were active Nazi collaborators.
Damn it. Now I’m going to have to take my Aleksandr Statiev and Grover Furr posters down.
Better cancel that subscription to the Journal of Genocide Research while you’re at it.
No, don’t do that they publish my stuff too. In fact in the same issue.
Grover Furr, huh? He’s so cute on Sesame Street, too. Damn!
Yes, leftist defenses of Stalin pervade modern discourse, especially among American academics. I assume everyone remembers my multi-post series about how he was particularly right to start systematically killing doctors.
Of course Zizek and his followers never existed. But, in the field of Soviet history there are lots of US based historians who claim mitigation for Stalin’s crimes on the basis of motivation not results. For instance Barbara Green and Mark Tauger regarding the Ukrainian Famine of 1932-33. Or see Statiev with regards to deportations or Wheatcroft about deaths in the GULag camps. All of them claim that because the deaths were unintended that they were not murder. As Arseny Roginsky of Memorial has noted in current discourse on Stalin you have victims (i.e. dead people), but no perpetrators. Wheatcroft calls working people to death in the GULag involuntary manslaughter even though he claims the deaths of Jews under the same conditions in places like Mauthausen were murder and genocide.
All of them claim that because the deaths were unintended that they were not murder.
Is it not, in fact, true that absent intent to kill it isn’t murder? Certainly Wikipedia tells me that:
But wikipedia defines malice as including “Reckless indifference to an unjustifiably high risk to human life (sometimes described as an “abandoned and malignant heart”)”
Imprisoning however many million people and not giving enough of a fuck to figure out whether the conditions you’ve put them in will kill them probably qualifies.
Bombing the fuck out of them in a shock-and-awe campaign on the way into invading their country, however, does NOT qualify.
Remember, it’s not what is done that counts, but who does it.
Except that very few western scholars accept this with regards to the USSR under Stalin. They use a definition of intent totally different from Anglo-American law. They define intent as the primary and sole motive rather than the inevitable consequences of particular actions. If you deport hundreds of thousands of women and children in the middle of war time to frozen tundra with very little food or shelter then a large minority of them will die. Everybody knows this and if you undertake such a deportation you are in fact condemning tens of thousands of people to death. Claiming that there is no intent here is sophistry and that is exactly what many western scholars of the USSR like Statiev (Canadian), Wheatcroft (British living in Australia), Tauger (American) in fact do. They claim that the deaths from deportation and in the GULag, not to mention the 32-33 famine are essentially accidental and that the Stalin regime has no real moral culpability for these deaths. If somebody did this with regards to similar deaths of Jews in Nazi labor camps or ghettos they would correctly be treated like David Irving. But, it is the orthodox interpretation in Soviet history in the US.
Yep. That is why I, as an actual socialist, routinely cite him as comparable to Hitler. As someone said upthread, I do not think that anyone of significance on the left has defended Stalin since the 50s.
Better trolls please.
Better fewer. But better.
V.I. Lenin, “On the Troll Question”, 1921
FTW
Seconded.
Seconded.
Nicely done.
I used to be a liberal, but ever since an internet crank told me that liberals still defend Stalin, I now support all policies advocated by the Club for Growth.
Manju?
I’ve seen arguments like this mostly in the context of pushing back against right-wing arguments that Stalin was worse than Hitler so we should be more afraid of socialists than fascists, etc. In other words, it’s not OK, but a move in the “who’s the greatest monster of all time” game.
Papa oo Mao Mao.
Hi Yo Silver, Away!
Ward Churchill?
Actually Ward Churchill is very anti-Stalinist in his book _A Little Matter of Genocide_. He is also anti-American, but his condemnation of the USSR under Stalin at least in that book is far stronger than most American academics. He in fact criticizes D. Lipstadt for minimizing the Ukrainian famine and other crimes by Stalin in that particular work.
Scott, I’m not up on the SC but it seems that Sotomayor is shaping to be pretty good – yes?
Yes, it was an excellent pick.
The only thing that really surprised me about how this one shook out was that Ginsburg voted with the majority (and wrote the majority opinion) rather than dissenting with Sotomayor.
Any thoughts about this, Scott? (I apologize if you address it in your Prospect piece, which I haven’t read yet…feel free just to send me there if you do).
Ginsburg, while better than Breyer, is often pretty cautious in civil liberties cases.
Evidence. The Supreme Court keeps using that word. I do not think it means what they think it means.
For the conservative bloc, that would apply to a lot of words, like “speech” and “person.”
It’s like the “good faith” exception to the exclusionary rule.
No, it’s not. Evidence can violate the exclusionary rule and still be reliable. Evidence from a suggestive lineup is, on the other hand, inherently unreliable even if the lineup is conducted in good faith. The exclusionary rule is a rule directed at getting the police to behave, not at the reliability of evidence, and if the police genuinely act in good faith then the reason for the exclusionary rule isn’t there. The problem with the good faith exception to the exclusionary rule is that violations that are claimed to be in good faith pretty much never are.
Well, I guess I was too cryptic and should have made my original comment, which was on fncked up reasoning behind modern SCOTUS jurisprudence. Thus, this decision misses the point entirely, and by a wide margin as Scott notes and thus the reasoning itself is fncked.
Yes modern SCOTUS jurisprudence seems to think that the reason for the exclusionary rule is to get “the police to behave,” but that too misses the point entirely. The true reason for the exclusionary rule is (or at least should be) to vindicate the constitutional rights of the accused. That is, “this evidence was gathered in violation of your constitutional rights, and therefore it can’t be used to deprive you of your liberty,” and not some stupid bullsh1t about deterring police misconduct, which amounts to “sure, we know this evidence was collected in violation of your constitutional rights, but we’re going to use it to convict you anyway.”
It’s been quite awhile since I read the actual opinions, but I believe they were based on discouraging police misconduct.
I don’t disagree, I’m just saying those opinions completely miss the point.
the standard should be whether a lineup or photo array is so suggestive as to be unreliable, and whether an ID resulting from overly suggestive procedures is the result of active rigging or just the good-faith application of bad procedures is in this context neither here nor there
I don’t think this really fits the case, in which the victim happened to see the accused out a window, talking to a police officer in the parking lot. In other words, there wasn’t any attempt at an identification procedure at all. I don’t think the majority is at all saying that there is some kind of “unduly suggestive but in good faith” rule for lineups and photo arrays.
Right. This wasn’t a lineup case (and every lineup I’ve ever heard of would involve police action which would compel a hearing about the possible suggestive nature of the lineup). The defense here asked the court to treat eyewitness evidence as different from all other types of evidence and mandate a hearing even if there was no identification procedure at all. Here the witness saw the alleged perp talking to a cop and identified him. The defense wanted a hearing about whether a witness seeing a perp talk to a cop is, by that fact alone, unduly suggestive and a result that would throw out any such identification (a highly suspect result). As I said before, this was a terrible case to create groundbreaking law on the subject of all eyewitness identifications.
Yeah, the issue is whether we are going to have the judge screen all eyewitness testimony for suggestiveness, even if the police aren’t involved at all. An example from one of my cases–the victim sees my client on TV, doing a perp walk for an unrelated crime. She calls the police and tells them, “that’s the man who robbed me!”
Absent suggestiveness, there should just be a hard-and-fast rule that eyewitness identification by a stranger is, absent extraordinary circumstances, never sufficient evidence to secure a conviction.
So, in your case, if they find the accused in possession of stolen property or trace stolen property to him then the eyewitness identification should be allowed as corroborating evidence. If all they have is the Identification then the case should not be allowed to go to trial, because the identification is inherently insufficiently reliable to establish proof beyond a reasonable doubt.
Seconded.
I can’t think of better facts to ensure that a majority wouldn’t create a new rule limiting eyewitness rule than these. Maybe if the suspect was also videotaped?
I’ve often wondered how much our criminal procedure is shaped by every defendant fully litigating their claim, instead of the defense bar as a whole finding the best claims to present their case to the Supreme Court. Compare this case to how the NAACP or the gay rights movement litigates their issues. They find the best, most compelling facts to bring forward, cases that make the Court look ludicrous for not supporting.
Here? You’ve got someone spontaneously pointing out the defendant and saying, “That’s the guy.” You might as well ask the Court to exclude in-court identifications.
But as Sotomayor says, it’s entirely possible if not likely that this conviction would be determined to be consistent with due process under the standard she advocated. The crucial question is what standard should be used going forward, not whether this particular ID was bad.
Why should they issue dicta? They decided any standard wouldn’t apply in this case. There won’t be any judicial pre-review of the reliability of the identification if the police don’t arrange the identification. The police didn’t arrange the identification of the defendant.
Like I posted above, this is a very unsympathetic case for creating a new procedural rule. The courts are extremely unlikely to simply say that every time the prosecution wants to introduction a witness ID the Court has to hold a pre-trial evidentiary hearing. That’s what TRIALS are about – did the witness actually see the defendant? Watch My Cousin Vinny again.
Watch My Cousin Vinny again.
Yes, that silly Sotomayor, thinking that the question of whether juries can consistently evaluate the reliability of eyewitness IDs should be determined by social scientific evidence rather than Joe Pesci movies.
You should watch it. Then you’d know why, to a lawyer, this decision is not a problem.
For evidence that is unreliable there’s ALREADY a process to keep it out. You:
1. File a Motion in Limine.
2. Show that under Rule 352 (or it’s equivalent) its probative value is outweighed by its prejudicial impact.
If you CAN’T make that showing, then you introduce evidence at trial to prove that the evidence isn’t reliable enough to sustain a conviction. Just like in My Cousin Vinny. Which, by the way, is used in many law schools to show how the rules of evidence work and the difference between legal and factual arguments.
Or you can be sarcastic and argue that the Court should have the 4th Amendment create a standard for SOMETHING THAT ALREADY EXISTS.
“It is okay to imprison millions of innocent people as long as you didn’t mean it.”
How in the world do you get this from this opinion?!
All it says is the ID is admissible. All types of evidence is admissible but still challengeable. And of course any defense attorney (as was done here) would be free to attack its reliability and put on evidence of the unreliability of eyewitness, etc. etc. The jury was then free to weigh the evidence and believe that the man caught with the box of stolen property and a baseball bat was in fact the man who broke into the vehicles in question. There is nothing here to suggest the innocence of the defendant.
That is why we have a jury.
The worst kind of evidence is evidence that juries find convincing, but that is actually unreliable. For that reason, sincere eyewitness testimony is actually worse than jail house snitches or coerced confessions. It sounds so right, but is actually so wrong. Cross-examination doesn’t help.
This.
Ridiculous.
This assumes the jury relied solely on the identification, rather than:
“Officer Nicole Clay responded to the call. Upon arriving at the parking lot, Clay heard what “sounded like a metal bat hitting the ground.” App. 37a–38a. She then saw petitioner Barion Perry standing between two cars. Perry walked toward Clay, holding two car-stereo amplifiers in his hands. A metal bat lay on the ground behind him. Clay asked Perry where the amplifiers came from. “[I] found them on the ground,” Perry responded. Id., at 39a.”
Geez. Maybe they didn’t believe the defendant found the two stolen stereos in his hands.
I’m as liberal as the next, but an attack on this opinion strains logic. The issue is simply one of admissibility. The jury gets to decide what weight to put on the evidence after it is admitted, attacked in cross, and where the defendant is free to admit evidence of the unreliability of eyewitness identifications, those myriad studies, etc., and THE JURY gets to decide what weight to put on the identification. Disallowing them from hearing the evidence at all, without any misconduct by the police, is unsupported. Thus, 8-1. I guess your theory is that Ginsburg, Kennedy, Breyer, and Kagan are idiots, but only in this instance.
Again, I’m not arguing about whether the conviction in this case is valid. The argument is about what rule to apply going forward, and the rule chosen by the court is 1)illogical and 2)will result in innocent people being unecessarily convicted.
And I emphasize again, Scott is misreading the opinion. It’s not a matter of “without any misconduct by the police”, or of “good faith” conduct by the police. There was no police-run identification procedure at all.
And I emphasize again that you’re focusing on the facts of this case rather than the question of what rule should apply in future cases.
Scott, under present law, unchanged by this opinion, if a police-conducted identification procedure is unduly suggestive, it does not matter whether the police acted in good faith.
But juries, not judges, will make this determination despite clear evidence that juries overrate the reliability of eyewitness testimony. RBG’s opinion argues that judges should make the determination only in cases of police misconduct, which is irrational and narrower than the standard that was already being applied in four circuits.
That’s right, but you throw a red herring in there when you start talking about police good or bad faith. It’s “misconduct” only in the sense that they did it wrong.
The worst kind of evidence is evidence that juries find convincing, but that is actually unreliable. For that reason, sincere eyewitness testimony is actually worse than jail house snitches or coerced confessions. It sounds so right, but is actually so wrong. Cross-examination doesn’t help.
This is the key. As I say in the article, RBG’s argument seems superficially persuasive, but crumbles on inspection. The issue is not the absolute reliability of IDs but whether juries systematically tend to overrate the reliabuility of eyewitness IDs.
That’s NOT the issue. At least, that’s only PART of the issue.
The issue (even as Sotamayor frames it) is when judges should review an ID for whether it was obtained through impermissibly suggestive means. Frankly, I can’t figure out how law enforcement can “obtain” an ID if they aren’t involved in it.
The reliability of the evidence? That’s IRRELEVANT unless the ID was, somehow SUGGESTED to the witness.
If you are suggesting that the 4th Amendment requires the exclusion of “unreliable” evidence, than argue it. But I’m not sure where that comes from. “Unreliability” is what we test at trial. So long as the evidence is reliable enough to hold the defendant to answer, we have a trial.
The issue (even as Sotamayor frames it) is when judges should review an ID for whether it was obtained through impermissibly suggestive means. Frankly, I can’t figure out how law enforcement can “obtain” an ID if they aren’t involved in it.
To state the obvious, “police involvement” does not inevitably lead to “suggestiveness.” See the New Jersey decision; if you have a photo array with lots of options selected by an officer who doesn’t know who the suspect is, there’s police involvement but it’s not suggestive.
You’re arguing for the inverse. You can have police involvement without suggestiveness: you can’t have suggestiveness without police involvement.
How do the police “suggest” the right ID when a witness sees the defendant rob a liquor store? How do the police “suggest” the right ID when a victim is raped? The whole idea is ludicrous.
The clear rule part is fairly important. How does one know when a procedure is “overly suggestive”?
If the witness isn’t told that the perpetrator may not be in the lineup/photo array/photo series, it’s overly suggestive.
If the person conducting the lineup or showing the photos knows who the suspect is it’s overly suggestive.
Obviously there are other ways an eyewitness identification can be unreliable, but these are exceedingly common and exceedingly easy to fix. They continue to be problems because the police and prosecutors want to continue to use unduly suggestive and unreliable identifications to secure conviction.
anything that tends to focus the attention of the witness on a particular suspect is suggestive. only one guy in the lineup in a jail uniform. the witness said the perpetrator had a beard, and only one beard in the lineup. one photo in the array is in a different format than the rest. etc.
The Supreme Court of Canada actually decided that a lineup in which only the accused was aboriginal/native (all the others were white) was not negligent: http://scc.lexum.org/en/2007/2007scc41/2007scc41.html
These examples raise another couple of questions. The opinion reads:
Why wouldn’t procedures like the ones you three have mentioned, that seem so wildly inappropriate, not qualify as “improper law enforcement activity”?
And is it particularly difficult to prove unreliability as it pertains to witness IDs?
Some things which can be easily proven in the abstract can be very difficult to prove to people.
Adversarial process and jury common sense may be good at sniffing out some forms of unreliability, but they aren’t good at dealing with flawed eyewitness identification (or badly-validated forensic “science” either).