When the State of Florida is mentioned on a law blog, it’s usually because something monumentally stupid happened there, and we can all take comfort in knowing that wherever we are, it’s not Florida. Yet, the Supreme Court of Florida has unanimously approved changes to their jury instruction on eyewitness identifications that’s not only worthy of note, but remarkably progressive for a state where its citizens can’t figure how to vote for the candidate of their choice.

From Bill Kaczor of the Associated Press :

Trial judges are being required by the Florida Supreme Court to instruct jurors on factors such as race and familiarity that should be considered when evaluating the accuracy of eyewitness identifications, the leading cause of wrongful convictions.

Judges will be required to tell jurors to consider whether witnesses are of the same race or ethnic group as those they are identifying, how familiar they are with people they are identifying and whether they relied solely on their own recollection or have been influenced in some way.

Another factor is the capacity and opportunity of a witness to observe a suspect including length of time, lighting and distance. Jurors also will be told to consider how much time has gone by since an event before identifications are made and any inconsistencies by witnesses.

Despite my less-than-Herculean efforts, I was unable to find the actual pattern jury instruction that the court approved.  The good news, according to the story, is that prosecutors opposed the changes, arguing that the court shouldn’t be doing the defense lawyer’s job by telling the jury that their very best evidence isn’t absolutely reliable, as most jurors believe. Whenever prosecutors oppose something, it’s generally a good sign.

The bad news is that, while changing from the old regimen which plays to the “common sense” understanding that eyewitness identification is about as good as it gets, the new instructions fall far short of what they should be.

The Innocence Project of Florida, which has helped free wrongly convicted inmates through DNA testing, contended in comments filed with the high court that the instruction fails to reflect scientific understanding of how to properly asses the reliability of eyewitness identifications. It had urged the justices to ask for a more robust rule or appoint a special master to hear evidence on how it could be strengthened.

The group wrote that the instruction neither warns “the jury of the dangers inherent in eyewitness evidence” nor does it “provide any comprehensive guidance on how jurors weigh certain factors.”

In a curious response to this criticism, the justices wrote that they weren’t “expressing an opinion on the instruction’s correctness.”  One would think that before changing jury instructions, that’s exactly what they would do, assure that the instructions are correct.  Why would a court change jury instructions from the old incorrect one to a new incorrect one?  Oops, I forgot. This is Florida.

It’s long been known, and empirically proven, that eyewitness identifications are not only overwhelming persuasive to jurors, but fraught with error. That nothing has been done to bring the law in line with the science of identifications is a scandal. It’s not good enough to argue that the law moves slowly, methodically, as it adapts to change in our grasp of how the human mind works, or the limits of scientific certainty.  Judges have a nasty habit of accepting the validity of methods used to prove guilt despite a shocking lack of evidence sufficient to satisfy scientific method, and once accepted, it moves from courtroom to courtroom around the nation with a speed that makes one’s head spin.  Dog sniff, anyone?

Yet, when science (real science, like that stuff they do at the National Academies of it, as opposed to the American Society of Duct Tape Identifiers, a wholly-owned subsidiary of the United State Association of Dog Handlers) disproves the validity of a method that has been found instrumental in achieving convictions, it takes decades before anyone acknowledges they may have put thousands of nice people in prison for crimes they didn’t commit.

Some reformers will applaud the fact that Florida has modified its jury instructions to recognize that maybe, just maybe, eyewitness IDs aren’t as perfect as we’ve been led to believe.  Others will note that once a change occurs, another change is often decades away, so that a modest change, perhaps an inadequate change, will be a little better than what existed perviously, but fail to adequately address the problem.  And lawyers will be faced with these modest, inadequate changes, when other states finally get off the dime and modify their jury instructions to conform with scientific reality.  They’re a bit ahead for the moment, but quickly fall behind later.

While there are other initiatives being made to correct pattern jury instructions, there remains a disturbing lack of concern for those innocent defendants who will be convicted by misidentification while committees of judges and lawyers fight over the language, battle over whether it’s too favorable to the prosecution or the defense and try to figure out what exactly the empirical studies show.  Lawyers and judges are notoriously bad at understanding scientific method, which explains a lot about what goes wrong with the law.

So is it better than Florida moves forward to change its instructions, even if they fall significantly short of what good eyewitness ID instructions should be?  Or would it be better to spend a couple more years arguing over each word, while innocent people continue to get convicted under the old, failed instructions?

It’s a tough question to answer, though if I was a defendant headed to prison because of misidentification, I know where I would come out.  This may fall far short of a cure for the disease of misidentificsation, but at the least it’s move toward correcting it, and an opportunity for lawyers to argue the point in summation, where before they were precluded for lack of evidence. But it’s hard to say when, or if, the law will ever get this right.

H/T John Burgess