New York State Bar Unveils New Legislation to Reduce Wrongful Convictions and to Compensate Those Wrongfully Convicted

In 2008, the New York State Bar Association (NYSBA) created a permanent Task Force on Wrongful Convictions. The task force examined 53 cases where a defendant was wrongfully convicted of a crime but later exonerated. In a report issued last year, it concluded that wrongful convictions resulted from multiple factors including identification procedures, government practices, mishandling of forensic evidence, defense practices, the use of false confessions and the improper use of jailhouse informants.

Based upon the findings and recommendations of the Task Force on Wrongful Convictions, the NYSBA earlier this month unveiled new legislation that would amend the Criminal Procedure Law in order to address the growing problem of wrongful convictions. Erroneous witnessidentifications – The task force found that erroneous identifications were responsible for more wrongful convictions than any other single factor.

One bill (A11052, S7842) would require double blind line-ups and photo arrays in which the person administering the process does not know the identity of the suspect; mandate only one suspect per lineup; require that identification procedures be documented; and allow sanctions for failure to comply with mandated procedures. Vacating a conviction when new DNA evidence is discovered -Numerous studies have shown that people, in fact, plead guilty even though they are innocent. Faced with a choice between a guilty plea and a more lenient sentence or the prospect of a much higher sentence following a guilty verdict after trial, they take what seems like the lesser of two evils.

Currently, New York appellate courts construe the law as foreclosing DNA testing after a guilty plea. Bill (A11123, S7867) would overturn these decisions and permit courts to order testing when the possibility of a DNA test is discovered or in cases where new technology for DNA testing is available. This bill would provide a mechanism by which an individual who has pleaded guilty to a crime could move to vacate the conviction when new DNA evidence is discovered, post-conviction.

Testimony from informants – A large percentage of cases in which wrongful convictions have been documented involve testimony from informants many who are facing criminal prosecution, or who have received incentives for their testimony. Studies have found that nearly 50 percent of wrongful murder convictions involve perjury by someone such as a “jailhouse snitch” or a witness who stood to gain from giving false testimony. Bill (A11089, S7873) would require that an informant’s testimony be corroborated before it can be admitted at trial.

It also mandates that juries receive instructions regarding reliability, and that the prosecutor must disclose any benefit received by the informant. Electronic recordings of custodial interrogations – Bill (A5213-A, S7877) would require the creation of an electronic record of an entire custodial interrogation in order to eliminate disputes in court as to what actually occurred during the interrogation, thereby improving prosecution of the guilty while affording protection to the innocent.

Exculpatory information – The cases studied by the Task Force show that Brady violations (failure by prosecutors to provide exculpatory information) are a continuing problem, denying the defendant a fair opportunity to organize and present his case. Senate bill (S7893) would provide definitions of exculpatory information, clarify what information must be delivered, establish the timeframe within which it must be delivered, and provide for relief where there has been a violation. Compensating those who have been wrongfully convicted – One bill, (A11150, S7868), rather than amend the Criminal Procedure Law, would amend the Court of Claims Act, in relation to claims for having been wrongfully convicted.

The purpose of this bill is to try to assure that those who have suffered a wrongful conviction receive fair monetary compensation from the State without opening the State to liability for every overturned conviction.

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