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June 1, 2017
Eyewitness identification reform bill passes

Another requiring law enforcement to record interrogations dies

By Jan Pudlow
Senior Editor

Two bills close to the heart of Seth Miller, executive director of the Innocence Project of Florida, met opposite fates at the end of the legislative session.

Quote Passing both the House and Senate with only one “no” vote was CS/SB 312, the Eyewitness Identification Reform Act, sponsored by Sen. Dennis Baxley, R-Ocala, and its companion HB 643, sponsored by Rep. Gayle Harrell, R-Stuart.

“We are thrilled the Florida Legislature has passed important eye witness identification reforms to require best practices that we know prevent misidentifications and wrongful convictions,” Miller said. “We’ve been working on it for six years. But it was well worth the effort to be able to pass it this year.”

But Miller was disappointed that bills that would require law enforcement to record custodial interrogations of suspects — SB 296, sponsored by Sen. Randolph Bracy, D-Ocoee, chair of the Senate Criminal Justice Committee, and the identical HB 453 by Rep. Kamia Brown, D-Ocoee — didn’t make it to a floor vote.

Though SB 296 “Statements Made by a Criminal Defendant” unanimously passed the Senate Criminal Justice Committee on February 21, the companion bill was never heard in the House. SB 296 was indefinitely postponed and withdrawn from consideration in the session’s last days, on May 5, and died in the Judiciary Committee on May 8.

“While we were hopeful to pass mandatory recording by law enforcement, we look forward to working with all criminal justice stakeholders to come up with a consensus bill that could make it through the Legislature next year,” Miller said.

In its final report in June 2012, the Florida Innocence Commission, appointed by then-Chief Justice Charles Canady, found that 25 percent of wrongful convictions in Florida involved false confessions and that “the most commonly advocated method to reduce false confessions is to require that confessions be electronically recorded.”

One Florida case cited for the need for a change in the law is the 1983 case of Anthony Caravella, a 15-year-old boy with an IQ of 67. He spent 26 years in prison until DNA testing proved his innocence for the rape and stabbing death of a 58-year-old woman. Over a five-day period, Caravella gave inconsistent statements that contradicted physical evidence in the case, and eventually he confessed. Law enforcement only recorded Caravella’s confession, not the abusive interrogation leading up to it.

Michelle Feldman, a state policy advocate for the national Innocence Project, testified at committee meetings that electronically recording interrogations could be accomplished with a mere $30 investment in a digital recorder.

Miller said during committee testimony that the bill doesn’t tell law enforcement how to conduct interrogations, but “only requires them to turn on the machine and record the entirety of the interrogation,” which helps everyone involved in the case find the truth.

The passage of the Eyewitness Identification Reform Act will require state, county, municipal, or other law-enforcement agencies that conduct lineups to ensure a fairer process.

Of 349 DNA exonerations nationwide, Feldman said, 71 percent involved eyewitness misidentification, and the real perpetrators identified in those crimes went on to be convicted of 100 additional violent crimes, including 64 rapes and 17 murders.

During committee debates, Baxley explained that he took recommendations from the Florida Innocence Commission and crafted uniform procedures. In 2010, the commission studied how unreliable eyewitness identification can be, the psychological reasons why witnesses seem so certain even when they’re wrong, and reforms other states have taken in the way law enforcement conducts photo or live lineups.

“It will require eyewitnesses to acknowledge their instructions about the lineup procedure, and they will be told that the investigation will continue, and that the individual may or may not be there,” Baxley explained.

An individual not involved in the case, called a “blind administrator,” who is not seeking a specific outcome, will administer the lineup, so the person does not either inadvertently or purposely give cues about which photo or person the witness should pick.

[Revised: 12-13-2017]