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DA Mollen's Testimony to NYSBA Task Force on Wrongful Convictions
I would like to thank both the New York State Bar Association and the New York State District Attorneys’ Association for their work on this important subject. First and foremost, there is universal agreement among all participants in the criminal justice system – judges, prosecutors, defense lawyers, defendants, victims and witnesses – that the central purposes of our system are to convict the guilty and to protect the innocent. Certainly no prosecutor I know would ever want to be party to convicting an innocent person.
But of course no human system is absolutely free from error. Our criminal justice system has created a structure of constitutional principles, including the requirement that guilt must be established beyond a reasonable doubt, and rules of evidence, that allocate the risk of error to be borne by the accused as compared to the People. Ben Franklin’s famous description in 1785 perhaps best describes this system:
“That it is better 100 guilty Persons should escape than that one Person should Suffer, is a maxim that has been long and generally approved."1
In my experience, our system works in accordance with this maxim. Given the number of cases handled by the criminal justice system each year, wrongful convictions are extremely rare. For instance, I have been District Attorney in Broome County since 1987. During those years approximately 12,000 felony convictions have occurred in Broome County Court. To my knowledge, not a single one of those 12,000 cases was a wrongful conviction. This is true even though our county was one of those that suffered through the Troop C evidence tampering scandal, where several police officers were actually fabricating false fingerprint evidence. As wrenching as that experience was, subsequent investigations of those cases produced no exonerations in Broome County of convicted persons. Quite simply, handling approximately 12,000 cases without a single error is an indication that wrongful convictions are rare. Furthermore, it must be remembered that it is also an injustice when a guilty person goes unpunished. Though I know of no case in Broome County where an innocent person stands convicted, I know of many where guilty persons have escaped justice, many for violent crimes that have left victims scarred and disillusioned for life. Our constitutional system, as described by Franklin, requires some of this injustice. But we should not forget when considering changes to our system that injustice can occur not only when innocent accused persons are convicted but also when innocent victims of crime are left unprotected and unvindicated by a process that forgets their interests. Citizens will lose faith in our system of justice if we are convicting innocent people. But they will lose faith just as surely and quickly if innocent victims don’t believe we can rationally bring the guilty to justice.I know you have asked me to testify because of our experience in Broome County with videotaping suspect interviews in major felony cases. All police agencies working in Broome County now do covert start-to-finish videotaping in such cases. We began doing videotaping of suspect interviews in 1993. Not all agencies began with start-to-finish taping, but now that is the system in place for all agencies. Our experience has been very positive. Before speaking of our experience with taping, however, I want to comment on your committee’s draft proposals regarding eyewitness identification evidence.
In Broome County, investigators in the District Attorney’s Office conduct all lineups. We have four investigators, and they conduct 20 to 25 lineups a year. Police agencies conduct many photographic identification procedures during the course of investigations. I could not say exactly how many. Our office follows many of the procedures recommended in your draft report. Each witness is required to read written instructions before viewing the lineup. The instructions state that the perpetrator may or may not be in the lineup, that there may be multiple lineups, that the witness should not feel obligated to pick anyone, and that if the witness does recognize someone, the witness should explain how certain the witness is of the identification. The witness’ viewing of the lineup is audio-taped by the investigator conducting the lineup, from start-to-finish. The lineup is photographed, and the physical characteristics of all the participants are noted in writing.
I would fiercely oppose two of the Bar Association Committee’s recommendations. First, we cannot do live double-blind lineups. The double-blind process could be implemented if photographic identifications were admissible, as they are in most other states. In a county of our size, the problem with double-blind lineups is practical. Our investigators dedicate very many hours to the task of finding voluntary lineup stand-ins who are roughly similar in appearance to the suspect. Keeping in mind that the suspect may have altered his/her appearance since the time of the crime, these investigators all need to know the suspect’s current physical appearance when searching through the jail facility or the community for four or five persons who both look roughly like the suspect and who are willing to participate in a lineup. Furthermore, if suspects learn that the investigator conducting the in-person lineup must be ignorant of the suspect’s identity when conducting the lineup, you can be sure that it will not be long before suspects learn to foil a long-scheduled lineup by identifying himself/herself as the suspect to the investigator, thus requiring a delay in the lineup and possible problems with stand-in availability.
More importantly, it would be absolutely wrong to require that witnesses viewing a lineup be videotaped. An audiotape of the lineup process more than adequately addresses the concerns about influence by the person conducting the lineup or accurately capturing the nature of identification by the witness. Many lineup procedures involve crimes of violence and/or gang violence. Witness intimidation and protection has been a fast-growing problem in our community. Requiring that police photograph or videotape witnesses and then give those images to perpetrators of violent and/or gang related crimes, would in my view be unconscionable. It is now often very difficult to persuade witnesses in such cases to voluntarily participate in viewing a lineup. If they were told that their photographic image was going to be taken and then given to the accused in such cases, witnesses would be very unlikely to cooperate or to subject themselves to the danger posed by allowing gang associates in particular to have their video or photographic image.
As for videotaping, Broome County’s experience has been very positive. Of course Broome County is a medium-sized upstate community. Our police agencies make between 1500 to 1700 felony arrests per year. We have a limited number of police facilities and a limited number of major felony cases. I cannot imagine how difficult our videotaping protocols would be to implement in a busy metropolitan location, with the much different volume and facility issues. But in our County videotaping has worked well.
Police agreed to implement covert, start-to-finish taping only after hearing from experienced, major-case police investigators who enthusiastically and unanimously said that such taping helped investigations by accurately recording the subtleties of suspect demeanor, as well as the details of incriminating admissions. These investigators all believed that the recordings also best allowed an accurate presentation of the interview process to judges and juries, while at the same time removing the enormous pressure from police officers of being able to describe the details of hours-long interviews that may have occurred months or even years ago. Now, having substantial personal experience with taping in Broome County cases, our experienced, major-case investigators and prosecutors have the same opinion. Quite simply, in our experience, covert, start-to-finish taping is the best way both to capture the dynamics of the interview process and to effectively present the evidence to triers-of-fact. Defense lawyers and prosecutors viewing a taped interview will usually be able to agree about what portions of the interview are admissible, thus avoiding the need for extended pretrial hearings to determine the same issue. Pretrial hearings are frequently avoided and, if held, are substantially shortened. Since recorded confessions are powerful evidence, they often result in more high-quality guilty pleas and sentences than would otherwise occur. The only negative consequence we have experienced is a substantial increase in resource demand upon the prosecutor’s office. While a police officer can read a written confession in minutes or summarize an hours-long interview in a short time, a recorded interview may now require a prosecutor to spend hours viewing the interview, a paralegal or investigator to spend double or triple that time preparing a transcript and substantial time and money to prepare redacted recordings for trial, if necessary. These are not insignificant burdens.
Perhaps most importantly, however, in an age of daily visual imagery, juries can question why interviews in major felony cases are not being recorded using readily accessible technology, where prosecutors are asking juries to convict and judges to imprison for very long periods of time. In our experience, recording in such cases helps us to achieve those central goals of protecting the innocent and convicting the guilty.
1. Letter from Benjamin Franklin to Benjamin Vaughan (Mar. 14, 1785), in 9 Benjamin Franklin, Works 293 (ed. Albert H. Smyth, 1970).