OKLAHOMA JUSTICE COMMISSION
REPORT
TO THE OKLAHOMA BAR
ASSOCIATION
FEBRUARY, 2013

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“Human nature itself is evermore an advocate for liberty. There is also in human nature a
resentment of injury, and indignation against wrong. A love of truth and veneration of virtue.”
– John Adams
“Law and order exist for the purpose of establishing justice, and when they fail in this purpose
they become dangerously structured dams that block the flow of social progress.”
– Dr. Martin Luther King, Jr.
“…moderation in the pursuit of justice is no virtue.” – Barry Goldwater
“If we are to keep our democracy, there must be one commandment: ‘Thou shalt not ration
justice.’” – Sophocles

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Contents
Acknowledgements .................................................................................................................... 5
Course of Work ......................................................................................................................... 5
FALSE CONFESSIONS INCLUDING INTERROGATION PROTOCOLS
AND ELECTRONIC RECORDING LAWS ................................................................ 7
RECOMMENDATIONS ............................................................................................... 11
EYEWITNESS IDENTIFICATION ...................................................................................... 14
RECOMMENDATIONS ............................................................................................... 14
FORENSIC EVIDENCE INCLUDING DNA ACCESS LAWS AND
PRESERVATION OF EVIDENCE ............................................................................ 20
PRE-CONVICTION RECOMMENDATIONS .............................................................. 21
POST-CONVICTION RECOMMENDATIONS ........................................................... 24
CRIMINAL LAW AND PROCEDURES INCLUDING INFORMANTS,
MISCONDUCT, COMPETENCY OF COUNSEL AND JURY
INSTRUCTIONS ......................................................................................................... 26
JAILHOUSE INFORMANT TESTIMONY .................................................................. 26
Recommendations: ........................................................................................... 27
MISCONDUCT ............................................................................................................ 28
Recommendations: ........................................................................................... 31
VICTIM/FAMILY RIGHTS INCLUDING COMPENSATION FOR
VICTIMS AND WRONGFULLY CONVICTED ...................................................... 36
RECOMMENDATIONS ............................................................................................... 37
ADDITIONAL RECOMMENDATION REGARDING PROSECUTORIAL
OR INVESTIGATORY MISCONDUCT ................................................................... 39
MINORITY REPORT .......................................................................................................... 103
CHAIRMAN'S COMMENTS IN RESPONSE TO MINORITY REPORT ....................... 104

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TABLE OF AUTHORITIES REFERENCED AS ENDNOTES A-K
A. OKLAHOMA BAR ASSOCIATION RESOLUTION .......................................................... 40
B. OKLAHOMA JUSTICE COMMISSION MEMBERSHIP ................................................... 44
C. CASES OF INTEREST ........................................................................................................ 46
D. 21 O.S. 13.1 ......................................................................................................................... 48
E. CRIME LAB REPORT ......................................................................................................... 50
F. SUGGESTED MODIFICATION OF JURY INSTRUCTION OUJI-CR-9-19
EVIDENCE – EYEWITNESS IDENTIFICATIONS ........................................................ 77
G. PROPOSED DNA STATUTE .............................................................................................. 80
H. OKLAHOMA INNOCENCE COLLABORATION ACT ..................................................... 87
I. PROPOSED AMENDMENT TO OUJI 9-43A ...................................................................... 92
J. PROPOSED STATUTORY LANGUAGE REGARDING EVIDENCE ................................ 94
K. PROPOSED STATUTORY LANGUAGE REGARDING QUALIFICATIONS ................ 100

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Oklahoma Justice Commission Recommendations
Acknowledgements
On September 24, 2010, the Board of Governors of the Oklahoma Bar Association, by
Resolution A established the Oklahoma Justice Commission; a “Commission dedicated to
enhancing the reliability and accuracy of convictions.”
In the following months the President of the Bar designated former Attorney General
Drew Edmondson as Chair, and the Chair invited participation of members pursuant to the
guidelines of the Resolution. In February, 2011, the Commission held its first meeting. The
Membership of the Commission is attached. B
The Commission wishes to thank the Board of Governors, President Alan Smallwood,
President Deborah Reheard, President Cathy Christensen and President James Stuart for their
leadership and support. The Commission also wishes to thank Executive Director John Morris
Williams and the staff at the Oklahoma Bar Association for their support services.
The Commission would also like to recognize the Innocence Clinic at Oklahoma City
University’s School of Law for their research and collaborative efforts on this project. We
acknowledge and appreciate the efforts of former Dean Lawrence Hellman, current Dean Valerie
Couch and Project Director Josh Snavely for their ongoing support and assistance.
Finally, the Commission wishes to dedicate this report and its recommendations to now
deceased Professor J. William Conger, an original member of the Oklahoma Justice
Commission.
Course of Work
The Commission began its work and spent the first year studying cases in which the
courts had determined that a person was “wrongfully convicted,” i.e., that he or she was in all
probability factually innocent of the crime. The first cases we reviewed in the course of our work
are attached. C While not all of the cases we reviewed fit our criteria, most did, and all were
informative.
The Commission’s review of cases established five broad areas of future inquiry:
1.
False confessions, including interrogation techniques and protocols as well as
requirements for electronic recording of suspect questioning;
2.
Eyewitness identifications, including procedures for show-ups, line-ups, photo
spread techniques and law enforcement assisted witness identifications;
3.
The collection, identification and use of forensic evidence, including DNA access
laws and preservation of evidence;
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4.
General criminal procedure, including use of informants, police or attorney
misconduct, competence of counsel and jury instructions;
5.
Victim and family rights, including compensation for victims subjected to a
second or subsequent process and those who are proven to have been wrongfully convicted.
It should be noted that our conclusions as to causal factors in wrongful convictions
tracked national results and previous studies in other states. The Commission felt, however, that
it was important to review our own cases and reach our own conclusions rather than simply
assuming that the factors would be the same in Oklahoma as in other states.
The Commission spent the next year exploring the factors contributing to wrongful
convictions and discussing what changes might reduce the likelihood of error without adversely
impacting effective investigation and prosecution of crime. Based on the areas of inquiry detailed
above, the Commission established sub-committees in order to take a more in-depth approach to
solving these issues. Each sub-committee met separately to conduct research and compile
reports. The recommendations of each sub-committee were presented to the full Commission,
amended and approved.
It should be clear from the list of Commission members that our views and perspectives
were diverse. Discussions were animated and thorough. We were determined that our
recommendations, if adopted, should not be an impediment to the very important work of law
enforcement personnel and prosecutors. Rather, they should be improvements to the process,
helpful to law enforcement and conducive to the ultimate goal of protecting the innocent by
convicting only the guilty.

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FALSE CONFESSIONS INCLUDING INTERROGATION PROTOCOLS AND
ELECTRONIC RECORDING LAWS

CHAIR: JUDGE RETA M. STRUBHAR, RETIRED
CO-CHAIR: MACK MARTIN, ESQ.
MEMBERS: JUDGE TOM ALFORD, CHIEF BILL CITTY, JOHN CLARO, ESQ, ANDREA
HAMOR EDMONDSON, M.A., CAPTAIN CHAD FARMER, DEAN LARRY HELLMAN,
DISTRICT ATTORNEY DAVID PRATER, BOB RAVITZ, ESQ. AND JACQUELINE STEYN
THE NEED FOR REFORM AND ITS BENEFITS TO LAW ENFORCEMENT
Wrongful convictions occur in the American criminal justice system at an alarming rate, and
a substantial percentage of the wrongful convictions are attributable, at least in part, to false
confessions. Between 1989 and November 2012, 301 people who had been convicted of serious
crimes (e.g., murder, rape, sexual assault) in the United States were exonerated on the basis of DNA
evidence that established their innocence. In almost half of the DNA-based exonerations, the DNA
evidence that established the innocence of a wrongfully convicted person led to the identification,
apprehension, and criminal punishment of the true perpetrators of the crimes. Perhaps surprising,
fully 27% of these 301 wrongful convictions involved false confessions that were made by suspects
during the investigation of the crimes. 1

Wrongful convictions attributable to false confessions are tragedies for the wrongfully
convicted and for law enforcement. The conviction of an innocent person on the basis of a false
confession is a tragedy for that person, his or her family, and the crime victim and the victim’s
family. But such a conviction is also a tragedy for the criminal justice system. When a suspect
falsely confesses to a crime, law enforcement personnel may prematurely conclude the investigation
of that crime, resulting in a failure to apprehend and punish the true perpetrator. When this
happens, the actual perpetrators remain at large, where they are capable of committing further
serious crimes. In fact, there are over 100 documented cases of murder, rape, or sexual assault that
were committed by perpetrators of earlier serious crimes who were at large while an innocent
person was incarcerated for those perpetrators’ earlier crimes.
1

During the same time period (1989 through November 2012), more than 700 additional individuals have been
exonerated through means other than DNA evidence.
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To protect the innocent from unjust incarceration and enhance the likelihood of apprehending and
bringing to justice true perpetrators, our criminal justice system must acknowledge that false
confessions do occur and adopt procedures designed to reduce their frequency.

A few recurring factors have been found to account for most false confessions. Careful review
of a large number of wrongful convictions that involved a false confession has identified a few
factors that frequently are associated with false confessions. After examining the records in 38
cases in which a false confession contributed to the conviction of an innocent person, University of
Virginia law professor Brandon Garrett identified the following recurring factors:2
A. Intense psychological pressure is applied by investigators during the course of an
exceedingly lengthy (many hours, or even days) custodial interrogation. For example:
a. A suspect may be told that he or she is likely to be convicted and sentenced to death;
but if he or she confesses to the crime, the prosecution will recommend a non-capital
sentence.
b. A suspect may confess in order to bring a lengthy interrogation, conducted under
harsh conditions, to an end.
c. An interrogator may falsely tell a suspect that the suspect has failed a polygraph test.
d. An interrogator may falsely tell a suspect that inculpating evidence has been found
linking the suspect to the crime.
e. An interrogator may falsely tell a suspect that another suspect has confessed and
implicated him or her.
f. A team of interrogators may employ strategies designed to lead a stressed or
impaired suspect to accept the “help” of the “friendly” member of the team, who
recommends that a confession is in the suspect’s best interest.
B. Psychological pressure, combined with persistent repetition of facts by interrogators, can
lead a suspect to become incorrectly convinced of his or her own guilt, producing a
confession that regurgitates facts that have been told to the suspect over and over, perhaps
even unintentionally.

2

Brandon L. Garrett, “The Substance of False Confessions,” 62 Stan. L. Rev. 1051, 1062-66 (2010).

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C. Juveniles and suspects who are mentally ill, mentally retarded, or borderline mentally
retarded are especially vulnerable to the types of psychological pressure and intimidating
interrogation techniques that lead to false confessions.
D. There are reported cases in which verbal or even physical abuse of a suspect produced a
false confession.
E. Fatigue, substance abuse, language difficulties, and limited cognitive abilities sometimes
contribute to false confessions.

Video-recording interrogations can effectively reduce the injustices caused by false
confessions. Fortunately, a low-cost, simple method of conducting interrogations is available that
can significantly improve the ability of judges and juries to recognize false confessions and limit the
likelihood that they will lead to a wrongful conviction: requiring that custodial interrogations
conducted in connection with the investigation of serious crimes be video-taped. Currently, 18
states3 and the District of Columbia operate under legislation or state court orders that mandate
digital recording of interrogations in certain defined circumstances. Significantly, while many law
enforcement officers expressed resistance to the adoption of recording policies when they were
under consideration in these jurisdictions, the experience of the law enforcement community with
these policies has been uniformly positive. The feared difficulties have not arisen. 4

As a result,

hundreds of government agencies across America, including four in Oklahoma, 5 have determined
on their own to adopt recording requirements for interrogations conducted with respect to certain
categories of crimes.

The availability of a video-recording of an interrogation greatly enhances the ability of fact finders
to assess the voluntariness and reliability of a confession introduced at trial, reducing the likelihood

3

AK, CT, DC, IL, IN, ME, MD, MA, MN, MI, MO, MT, NE, NH, NJ, NC, OR, VT, WI.

4

See, e.g., Thomas P. Sullivan, Esq., “COVER STORY: Electronic Recording of Custodial Interrogations,” The
Chief of Police (The Official Publication of the National Association of Chiefs of Police) (November/December
2005) at 17. Mr. Sullivan is a former U.S. Attorney for the N.D. IL. Among the feared difficulties that have not
materialized are: (1) fear that recording will intimidate suspects and make them “clam up,” (2) fear that effective
(and constitutional) interrogation tactics (such as lying to a suspect) will become unavailable or counter-productive
if viewed by jurors, (3) fear that a recording mandate will impose unacceptable costs on already-strained law
enforcement budgets, (4) fear that human or mechanical errors will render a solid confession inadmissible. Id. at 19.
5

Moore Police Department, Norman Police Department, Oklahoma County Sheriff’s Office, Tecumseh Police
Department.
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that a false confession will be admitted into evidence or that a false confession will outweigh
conflicting evidence supporting the innocence of an accused. However, most of the benefits of
video-recording are enjoyed by law enforcement personnel (see below).

Therefore, it is the

recommendation of the Oklahoma Justice Commission that measures be put in place to make the
benefits of video-recording of interrogations during the investigation of serious crimes available to
all law enforcement agencies in Oklahoma.

Recording interrogations promises major benefits to law enforcement.
A. Video-taped interrogations create a record of statements made by suspects that makes it
difficult for a suspect to change an account of events originally provided to law enforcement
or to dispute accounts given by interrogators.
B. Video-taped interrogations capture and preserve subtle details in a suspect’s behavior that
may be lost if unrecorded. Such details of the suspect’s behavior during an interrogation
that may have been initially overlooked or deemed to be irrelevant are preserved for
reassessment. Thus, recording assists law enforcement to better investigate crimes and helps
prosecutors to better establish the credibility of a confession.
C. Recording interrogations allows interrogators to concentrate on the interview, rather than
being distracted by the need to take notes during interrogations.
D. When an interrogation is video-recorded, there is a permanent record of original statements
made by suspects. If a shift in the investigative focus occurs after an interrogation, law
enforcement can easily review what the suspect said during that interrogation to evaluate the
suspect’s statements and behavior in the light of the new investigative focus.
E. Recordings can be used at trial to corroborate the accuracy of the confession, thus bolstering
the credibility of law enforcement personnel and prosecutors in the eyes of the fact finder.
F. Video-taped interrogations facilitate training of junior law enforcement personnel and
improvement in interrogation techniques on the part of experienced law enforcement
personnel.
G. The presence of a video-taped recording removes the potential for disputes or unjustified
allegations concerning how an officer conducted himself or herself or treated a suspect
during an interrogation.

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H. Recordings protect law enforcement personnel from being unfairly accused of coercing a
confession. In the absence of a recording, the defense can create doubts about the reliability
of a true confession.
I. When a state adopts a policy mandating the recording of interrogations, public confidence in
law enforcement is enhanced, while complaints against law enforcement personnel decline.

RECOMMENDATIONS
1.

The Commission urges the Legislature to enact a video-taping law modeled on laws in force

in other states. The legislation should include the following provisions:


Scope. The legislation should require law enforcement agencies to video-tape the entirety
of custodial interrogations conducted at a place of detention in connection with the
investigation of any crime which falls under 21 O.S. 13.1D

This proposal seeks to balance the cost of providing equipment to video-record interrogations with
the desire to provide justice to individuals suspected of serious, violent felony crimes. Since small
law enforcement agencies are unlikely to investigate many murders or sexual assaults, in those rare
instances when they do, they can call upon the OSBI to appear at the local law enforcement agency
with recording equipment to meet the mandate prescribed in the legislative proposal. In this way,
the cost burden associated with this proposal will be negligible.


Rebuttable Presumption of Inadmissibility; Grounds for Rebutting the Presumption of
Inadmissibility. The legislation should provide that any confession in a case involving one
of the enumerated crimes that is not video-recorded shall be presumed to be inadmissible at
trial unless the court finds by a preponderance of the evidence that one of the following
conditions justifies the failure of authorities to video-record the confession:
a. the suspect requested or demanded (in a video-recorded statement) that the
interrogation not be recorded and it was not feasible to nevertheless surreptitiously
record the interrogation
b. the law enforcement officer(s) conducting the interrogation reasonably believed that
the crime for which the suspect was taken into custody was not (and was not likely to
develop into) a crime for which this statute requires recording
c. the interrogation took place outside the State of Oklahoma in compliance with the
laws of the other jurisdiction
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d. the interrogation was conducted by a federal law enforcement officer(s) in
compliance with the laws of the United States
e. the statement was made before a grand jury
f. the statement was given at a time when the accused was not a suspect for the crime
to which that statement relates while the accused was being interrogated for a
different crime for which the statute does not require recording
g. the interrogation was conducted by a law enforcement agency with five or fewer
peace officers in circumstances where it was not possible for the interrogation to be
conducted by the OSBI
h. exigent public safety circumstances prevented recording
i.

the confession was contained in a voluntary, spontaneous statement or in response to
routine questions that are asked during the processing of the arrest of a suspect

j.

the confession occurred in open court

k. the recording equipment unforeseeably failed due to technical malfunction or
excusable human error
l.

recording equipment was not available for good cause at the location where the
interrogation took place

m. other good cause prevented the video-recording of the interrogation that produced
the statement in question
n. considering the totality of the situation, the statement in question can, by a
preponderance of the evidence, be shown to be voluntary and reliable

2.

Pending passage of the proposed legislation, the Commission recommends that the Council

on Law Enforcement Education and Training (CLEET) should immediately adopt the model policy,
training, and monitoring called for below, and a mechanism should be put in place recommending
voluntary adoption of the substance of the proposed legislation contained in Recommendation #1 by
each state, county, and municipal law enforcement agency in Oklahoma.
A. Model Policy. The Commission recommends that CLEET (a) adopt and publish a model
policy that implements all of the elements of the statute and (b) provide training for the
implementation of the policy by state, county, and local law enforcement departments. The
model policy shall include special protocols to be followed in order to guard against false

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confessions from juveniles, suspects who exhibit indicators of mental or cognitive
deficiency, and suspects for whom English is not their native language.
B. Implementation and Monitoring.

The Commission recommends that each law

enforcement agency within Oklahoma shall, by a date certain (e.g, within six months of
enactment of the legislation), adopt a written policy (which may be the CLEET model policy
or one otherwise fully compliant with the terms of the statute) for recording custodial
interrogations of persons suspected of committing or attempting to commit one of the
serious felonies covered by the statute.

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EYEWITNESS IDENTIFICATION
CHAIR: BOB RAVITZ, ESQ
MEMBERS: DEAN LARRY HELLMAN, REPRESENTATIVE LEE DENNEY, SENATOR
CONSTANCE JOHNSON, JOHN CLARO, ESQ, ASSISTANT ATTORNEY GENERAL
JENNIFER MILLER, SHERIFF SCOTT WALTON, CAPTAIN CHAD FARMER, DIRECTOR
STEVE EMMONS, CHRISTY SHEPPARD, CAPTAIN TIM DORSEY
EXECUTIVE SUMMARY
Eye witness identification has always been an important tool for investigating and prosecuting
criminal cases. This investigative tool; however, has been cited by a number of sources as the
leading cause of wrongful convictions. E Misidentification not only harms the wrongfully
convicted, but also harms all members of the criminal justice system and greater society. The
misidentification can hinder investigations when the wrong person is focused upon, harming
police work. Even when a witness misidentifies someone and the investigation is ultimately refocused, the ability of that witness to identify anyone might be brought into question, thereby
harming prosecutions. Crime victims are also traumatized in the face of misidentification,
sometimes experience guilt, not only for the wrongful conviction, but the fact that the real
perpetrator has committed other crimes that might have been prevented had the right person been
identified in the first place. Erroneous convictions as a result of misidentification adversely
affect the credibility of the police in the community and erode the trust between the public and
the judicial system. This report includes training and policy recommendations to stakeholders in
the criminal justice system that attempt to maximize the reliability of the identification process
and minimize the risk of erroneous identifications. These best practices are designed not only to
reduce erroneous identifications but also to enhance the reliability and objectivity of eye witness
identification testimony.

RECOMMENDATIONS
1.

All law enforcement should establish written procedures that require the photo array or

lineup to be conducted by an independent administrator, officer, or investigator who should not
be aware of which member of the photo spread, lineup, or any other type of identification
procedure using multiple images is the suspect. These procedures should include:

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A.

No-one in law enforcement who is aware of the suspect’s identity should be
present during the administration of the identification process.

B.

If an independent administrator or investigator is not available to conduct the
identification process, the following procedures should be followed:
1.

Place the suspect’s and non-suspect filler photos in separate identical
folders. Include four blank identical folders for a total of ten.

2.

Shuffle the folders, except for the last four which should be blank, before
giving them to the witness.

3.

The officer administering the array should position himself or herself so
that he or she cannot see inside the folders as they are viewed by the
witnesses. This prevents the officer from unintentionally influencing the
witnesses’ selection.

4.

Show the photo array to one person at a time so that they will not be aware
of the responses orally or inferentially of other witnesses.

5.

Avoid multiple identification procedures in which the same witness views
the same suspect more than once.

2.

Law enforcement shall establish written procedures that require, prior to the presentation

of the photo array, an instruction be read aloud to the witness. This instruction should include
the following:

A.

A series of photos will be shown.

B.

The perpetrator may or may not be included in the series of photos shown and
failure to make an identification will not end the investigation.

C.

Individuals may not appear exactly as they did on the date of the incident and
head and facial hair are subject to change.

D.

Do not feel you must make an identification.

E.

If you identify someone, you will be asked to describe in your own words how
confident you are in the identification.

F.

The photos are not in any order.

G.

Take as much time as you need to look at these photos.

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H.

Even if you make an identification, please look at all the remaining photos.

I.

Do not discuss these procedures or results to any witness or person other than law
enforcement.

A specific instruction should go something like this: “You will be asked to view a series
of photos of individuals. It is just as important to clear innocent persons from suspicion as to
identify guilty parties. I don’t know whether the person being investigated is included in this
series. Individuals present in this series may not appear exactly as they did on the date of the
incident because features such as head hair and facial hair are subject to change. You should not
feel that you have to make an identification. If you do identify someone, I will ask you to
describe in your own words how certain you are. The photos will be shown to you one at a time
and are not in any particular order. Take as much time as you need to examine each photo. If
you made an identification, I will continue to show you the remaining photos in the series.
Regardless of whether you make an identification, we will continue to investigate the incident.
Since this is an on-going investigation, you should not discuss the identification procedures or
results.” [International Association of Chiefs of Police National Law Enforcement Policy Center
Witness Identification Model Policy, September 2010.]

3.

Law enforcement should adopt written procedures that require the eye witness be shown

one photograph at a time in a sequential manner. The eye witness views the pictures one at a
time and is asked to make a decision on each one before being shown the next picture.
A.

When an independent administrator is conducting the identification process, the
photo array should consist of a minimum of six persons, one of whom is the
suspect. The persons should be placed in alphabetical order so no one can be
accused of placing the suspect in a specific position in the process. When an
independent administrator is not available, the shuffle method described in
Recommendation 1B shall be utilized. All photos should be numbered on the
back.

B.

Photos of the individuals should be contemporary. The suspect should not stand
out in the identification process. The photos should be reasonably similar in age,
height, weight and general appearance, same sex and race. Suspects should be
wearing similar clothing and there should be no factors in the process that would

16

draw extra attention to the suspect. Do not mix color and black and white photos.
Use photos of the same size and basic composition. Never mix mug shots with
snapshots.
C.

Non-suspect fillers should be selected who resemble a description of the
perpetrator provided by witness including witness’s description of significant
features (face, body build, etc.).

D.

Cover any portion of mug shots or other photos that provide identifying
information on the subject and similarly cover other photos used in the array the
same way.

E.

No more than one suspect should be placed in a given identification process.

F.

Even when an identification is made, the administrator should continue to show
the remaining photographs.

4.

The use of show-ups should be avoided whenever possible. The use of a photo array or

lineup is preferred. The single suspect show up should not be used if probable cause to arrest the
suspect has already been established.
A.

Prior to any show-up, document witness’s description of perpetrator.

B.

Use show-up only when suspect is detained within a reasonably short time frame
following the offense.

C.

Bring the witness to the location of the suspect whenever possible, rather than
bringing the suspect to the witness.

D.

Do not conduct show-up when suspect is in patrol car and unless necessary to
safety, avoid handcuffs or other physical restraints.

E.

Do not call person “suspect” when you are conducting the show-up.

F.

Separate multiple witnesses.
conducting show-up.

Do not allow communications before or after

Instruct them not to talk to other witnesses regarding

identification at any time.
G.

If the witness identifies the suspect, proceed with other witnesses through photo
array or lineup as probable cause already exists to arrest.

H

Do not present the same suspect to the witness more than once.

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I.

The suspect should not be required to put on any clothing worn by, speak words
uttered by, or perform other activities of the perpetrator.

5.

Law enforcement should adopt written procedures that preserve the identification

procedure, including the photo array, together with full information about the identification
process, and its outcome by recording the identification process and all results and statements
made by the witness. The witness should sign identification procedures.
A.

Whenever possible, preserve the identification process by video and audio tape.
If identification is a show-up, use in-car camera, camera, or other recording to
preserve if possible.

B.

Record or have the witness write down what factors caused him or her to identify
the suspect.

C.

Document exact words used by the witness without prompting the witness to
elaborate. However, if the witness elaborates, write down exact words used by
the witness.

D.

Ensure a complete, written record of the identification process. Names of persons
whose photos are used in the array should be numbered and a copy kept for
preservation of the lineup and detailed notes should be taken with regards to the
identification process, including date and time of identification process and any
identification of one or more fillers in the process.

6.

Adequate training on the process to obtain more reliable identification procedures should

be mandated by all components of law enforcement.
A.

CLEET and all police departments that have an academy should require academy
training on all issues of the identification process including all recommendations
set out by the Commission.
1.

Academy training should include problems created by misidentification or
breakdown of identification process.

2.

Examples like 60 Minutes’ “Cotton video” titled “Eyewitness,” produced
in 2009 by CBS Broadcasting and aired March 8, 2009 by Leslie Stahl,
should be utilized.

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B.

Refresher courses should be taught through CLEET seminars or intra-department
training on identification issues, especially those contained in this report.

C.

Training by the Bar Association, Judicial Conference, District Attorney
Association, and defense organizations should also be required and provided for
judges, prosecutors, and defense attorneys to acquaint them with the particular
risks of unreliable identifications.

D.

Law Enforcement agencies should establish a written policy on procedures for
eye witness identification including these recommendations.

E.

CLEET should contact all law enforcement agencies, explaining the importance
of written policies and procedures dealing with eyewitness identifications and
forward a copy of these recommendations or model policies to them when
requested.

7.

The Standard Jury Instructions utilized in eye witness identification cases should be

revised. The new instructions should acquaint juries with significant factors contributing to
unreliable identifications, such as stress, lighting, presence of a weapon at the scene, change in
appearance, the amount of time the witness saw the suspect, intoxication of the witness, crossracial identifications and age factors.F

19

FORENSIC EVIDENCE INCLUDING DNA ACCESS LAWS AND PRESERVATION OF
EVIDENCE
CHAIR: JUDGE CLANCY SMITH
MEMBERS: REPRESENTATIVE LEE DENNEY, ASSISTANT ATTORNEY GENERAL
JENNIFER MILLER, LEE COHLMIA, ESQ, DR. DWIGHT ADAMS, BOB RAVITZ, ESQ,
DIRECTOR STAN FLORENCE, ANDREA SWIECH, VONDA WILKINS, ESQ., SHERIFF
JOHN WHETSEL, SUE WYCOFF, ESQ.
Forensic Science is an important component of the criminal justice system. It is well
known that forensic science, when properly applied and presented, can be critical to the
outcome of a prosecution or exoneration. However, there are known instances when forensic
science has been abused or overstated and the consequences resulted in a wrongful conviction.
Of the first 200 individuals in the United States identified by the Innocence Project as being
wrongfully convicted, twenty-two - over 10% - were wrongfully convicted at least in part
through faulty forensic science analysis and testimony.

For our purposes, the most important characteristic of these twenty-two wrongful convictions is
that only one of them was the result of analysis from an accredited laboratory (see endnote E).
This alone provides a clear message that accreditation, not certification, is paramount to quality
forensic science. A brief explanation is in order to clarify the difference between accreditation
and certification. First, individuals are certified and laboratories are accredited. But even an
uncertified individual working in an accredited laboratory will be held to a higher standard than a
certified person who works in a non-accredited lab. Thus, a latent print examiner (one who
compares known prints to prints recovered from crime scenes in order to determine if they are
identifiable to a particular individual) working as a member of an accredited laboratory is held
to a higher standard, whether he is certified by the International Association for Identification
(IAI) or not.

Accreditation provides standards against which the operations of the entire laboratory are
directed and assessed. An accredited laboratory is required, at a minimum, to have programs in
place to address each of the following standards for all examiners:

A. Proficiency tests
20

B. Written training programs for analysts as well as opportunities for
continuing education
C. Policies and procedures for evidence handling and security
D. Standard operating procedures for all examinations and protocols directing
the validation of new procedures prior to their use in casework
E. Case work procedures to include note-taking requirements for all
examinations
F. Peer-review of examinations
G. Administrative review of all reports and examinations
H. Testimony review and audits

By contrast, certification applies only to the individual.

A certified latent print examiner

working independently or from a non-accredited laboratory is not required to adhere to any of
the above standards. He or she is simply required to have 80 hours of approved training, a
minimum of two years full time experience in comparisons and identifications, comparisons of
15 latent prints achieving 12 without an erroneous identification, and passing a test once every
five years, with no accountability in the intervening years. On the other hand, a latent print
examiner operating within an accredited laboratory has mechanisms in place to provide excellent
quality control and quality assurance practices and procedures to minimize misidentifications.

Accreditation of the forensic science laboratory is not guaranteed to prevent wrongful
convictions, but it greatly reduces the likelihood when the case involves forensic science. With
this in mind, the following pre and post-conviction recommendations are made:

PRE-CONVICTION RECOMMENDATIONS

1. Current Oklahoma Law, 74 O.S. §150.37, which requires that all forensic laboratories as
defined by the act and operating prior to July 1, 2005 be accredited, exempts “Latent
print identification performed by an IAI certified latent print examiner”. The exception
for latent fingerprint identifications is unwarranted and unwise.

21

Latent fingerprint

identifications should be performed in an accredited laboratory, not simply by a certified
individual.

Therefore, we recommend that the Legislature remove the exemption for latent
fingerprint examination from the statute so the requirements for latent print examination
match those for other forensic science disciplines. The work of the latent print examiner
has the ability to identify one individual to the exclusion of all others. In order to prevent
or limit the possibility of a wrongful conviction, this work must be performed by a
qualified examiner from an accredited laboratory.

a. We also recommend that the same standard be applied to Digital Forensics, such
as the analysis of data on computers and other electronics, which is presently also
exempted from the requirement that it be analyzed in an accredited laboratory.
Law enforcement is experiencing an increase in the recovery and analysis of
evidence containing digital information and the need for analysis of this evidence
in an accredited laboratory with a sound quality assurance system in place is
critical.

b. The Oklahoma Legislature should remove the exemptions for Latent Print
Examiners and Digital Forensic Analysts from current Oklahoma Law, 74 O.S.
§150.37. Latent print examinations and digital forensic examinations should be
performed in an accredited laboratory. The OBA should work with the Oklahoma
Legislature to remove the exemptions from current state law.

2. Further, we recommend that Crime Scene personnel be held to a high standard within the
state of Oklahoma and that, at a minimum, all crime scene personnel should increase their
level of training through CLEET or other appropriate training academy. Analysis of
improperly collected evidence could result in a wrongful conviction even when the
analysis was properly performed.

22

A committee consisting of representatives from CLEET, OSBI, Training Academies of
the Oklahoma City, Tulsa, and Edmond Police Departments and the Forensic Science
Institute (and possibly others) should meet to formulate a quality and enhanced training
program for Crime Scene personnel.

The program should be implemented in all

Oklahoma police training academies.

3. We recommend support of the Office of the Chief Medical Examiner (OCME) in its
attempt to regain national accreditation. We fully understand that accreditation was lost
for two primary reasons: 1) Too few pathologists to conduct the required number of
autopsies; and, 2) inadequate facilities. Therefore, we fully support the move of the
OCME to the campus of the University of Central Oklahoma (UCO) in order for the
OCME to take full advantage of the collaboration between the Forensic Science Institute
at UCO, and the OSBI Forensic Science Center, also located near the UCO campus.
Collaborations include student internships, national and regional training programs for
OCME staff and pathologists, certification of death scene investigators, and consultation
with experts in a wide range of forensic science disciplines.

The training programs for pathologists and death scene investigators will help to reduce
the possibility of wrongful convictions. One recent example included training provided
by the Forensic Science Institute to the OCME staff regarding infant death investigations.
A leading national expert provided current information on a topic known for leading to
wrongful convictions. Training programs like this and expert services of UCO faculty
will enhance the overall quality of the services provided by the OCME. The move by the
OCME to the UCO campus will make these training efforts and expert services available
on a regular basis.

The Oklahoma Legislature should support the move of the Oklahoma Medical
Examiner’s Office to new facilities and secure additional pathologists in order for the
Office to regain national accreditation. The OBA and District Attorneys Council should
support these initiatives.

23

POST-CONVICTION RECOMMENDATIONS

1. Oklahoma is currently the only state in the United States that does not have a
Post-Conviction DNA Testing Law. We strongly recommend that the Oklahoma
Legislature enact legislation creating such a law.

Proposed legislation is

providedG.
Oklahoma’s post-conviction DNA legislation should overcome shortcomings identified by the
Innocence Project and found in other state’s DNA access laws to include:

A. Some laws present insurmountable hurdles to the individual seeking access, putting the
burden on the defense to effectively solve the crime and prove that the DNA evidence
promises to implicate another individual.
B. Despite the fact that 11 of the first 225 individuals proven innocent through DNA testing
initially pled guilty, certain laws still do not permit access to DNA when the defendant
originally pled guilty.
C. Several laws do not allow individuals to appeal denied petitions for testing.
D. A number of states fail to require full, fair and prompt proceedings once a DNA testing
petition has been filed, allowing the possibly innocent to languish interminably in prison.

At a minimum, reasonable elements in a good DNA access law should:

A. Include a reasonable standard to establish proof of innocence at the stage where an
individual is petitioning for post-conviction DNA testing;
B. Allow access to post-conviction DNA testing wherever it can establish innocence, even if
the petitioner is no longer incarcerated, and including cases where the petitioner pled
guilty or provided a confession or admission to the crime;
C. Exclude “sunset provisions,” or absolute deadlines, for when access to post-conviction
DNA evidence will expire;
D. Require criminal justice officials to account for evidence in their custody;

24

E. Require criminal justice officials to properly preserve and catalogue biological evidence
for as long as an individual is incarcerated or otherwise experiences any consequences of
a possible wrongful conviction (e.g. probation, parole, civil commitment or mandatory
registration as a sex offender);
F. Disallow procedural hurdles that stymie DNA testing petitions and proceedings that
govern other forms of post-conviction relief;
G. Allow convicted persons to appeal from orders denying DNA testing;
H. Require a full, fair and prompt response to DNA testing petitions, including the
avoidance of debate around whether currently available DNA technology was available at
the time of the trial;
I. Avoid unfunded mandates by providing funding to DNA testing statutes; and
J. Provide flexibility in where, and how, DNA testing is conducted.

The Oklahoma Legislature should adopt post-conviction DNA testing legislation. We
recommend that the OBA work with members of the Oklahoma Legislature to provide
Oklahoma with post-conviction DNA testing consistent with the attached draft legislation.

2. We also encourage support for legislation regarding the creation of the Oklahoma
Innocence Collaboration Program consisting of the OSBI, Oklahoma City
University (OCU) School of Law, and the UCO Forensic Science Institute, such
as found in House Bill 2652H. Oklahoma may be the only state in the union
without a current post-conviction DNA access law; however, Oklahoma can be at
the forefront of providing the most innovative collaboration among academic,
scientific and law enforcement entities within the state working to assure that
wrongful convictions do not go uncorrected.

We recommend, with assistance from the OBA, that the Oklahoma Legislature adopt House
Bill 2652 (or similar legislation) creating the Oklahoma Innocence Collaboration Program.

25

CRIMINAL LAW AND PROCEDURES INCLUDING INFORMANTS,
MISCONDUCT, COMPETENCY OF COUNSEL AND JURY INSTRUCTIONS
CHAIR: ASSISTANT ATTORNEY GENERAL JENNIFER MILLER
MEMBERS: JUDGE RETA STRUBHAR, RETIRED, VONDA WILKINS, ESQ., SENATOR
CONSTANCE JOHNSON, DIRECTOR STEVE EMMONS, BOB RAVITZ, ESQ., JUDGE TOM
ALFORD, LEE COHLMIA, ESQ.
JAILHOUSE INFORMANT TESTIMONY

A jailhouse informant is an inmate who allegedly receives a statement from an accused
while both are in custody, and the statement relates to a crime that occurred outside the
institution walls. Usually these statements are then provided to the government in exchange for
some benefit, such as sentence reductions, leniency or other personal advantage.

Although

jailhouse informants can be necessary for effective law enforcement, their motivation is highly
suspect. The Innocence Project has found:
In more than 15% of wrongful conviction cases overturned through
DNA testing, an informant testified against the defendant at the
original trial. Often, statements from people with incentives to
testify – particularly incentives that are not disclosed to the jury –
are the central evidence in convicting an innocent person.
http://www.innocenceproject.org/understand/Snitches-Informants.php.
Review of Oklahoma cases that resulted in exonerations revealed that jailhouse informant
testimony was one form of evidence that must be given special consideration. The cases of
Dennis Fritz and Ron Williamson, co-defendants, involved the admission of jailhouse informant
testimony. Dennis Fritz received a sentence of life imprisonment for murder. Ron Williamson
was convicted of capital murder. Jailhouse informant testimony was presented in both cases.
Fritz v. State, 811 P.2d 1353 (Okla.Crim.App.1991); Williamson v. State, 812 P.2d 384
(Okla.Crim.App.1991), federal habeas corpus relief granted by Williamson v. Reynolds, 904
F.Supp. 1529 (E. D. Okla. 1995). In preparation for Mr. Williamson’s retrial DNA testing was
conducted. The DNA testing revealed that the DNA belonged to another individual, Glen Gore.

26

Mr. Gore was later convicted of the murder and is serving a life sentence. Gore v. State, 119
P.3d 1268 (Okla.Crim.App.2005). Mr. Fritz and Mr. Williamson were released from custody.

The Oklahoma Court of Criminal Appeals has recognized that certain precautions should
be taken when jailhouse informant testimony is offered into evidence. In the capital case of
Dodd v. State, 993 P.2d 778 (Okla.Crim.App.2000), Mr. Dodd received a new trial due to the
admission of jailhouse informant testimony.

In that case, the Oklahoma Court of Criminal

Appeals examined the problems relating to jailhouse informant testimony and set forth the
following procedure for trial courts to follow when the State seeks to admit such testimony:
At least ten days before trial, the state is required to disclose in
discovery: (1) the complete criminal history of the informant; (2)
any deal, promise, inducement, or benefit that the offering party
has made or may make in the future to the informant (emphasis
added); (3) the specific statements made by the defendant and the
time, place, and manner of their disclosure; (4) all other cases in
which the informant testified or offered statements against an
individual but was not called, whether the statements were
admitted in the case, and whether the informant received any deal,
promise, inducement, or benefit in exchange for or subsequent to
that testimony or statement; (5) whether at any time the informant
recanted that testimony or statement, and if so, a transcript or copy
of such recantation; and (6) any other information relevant to the
informant’s credibility.
Dodd, 993 P.2d at 784. In addition, the Court mandated that a uniform jury instruction that
discussed the scrutiny that must be given to such testimony be given in all cases where a court
admits jailhouse informant testimony. Id.

Recommendations:

1.

Review of numerous other states’ jury instructions led the Commission to the
conclusion that the jury instruction mandated by the Court in Dodd and adopted
by the Uniform Jury Instruction Committee (OUJI-CR 9-43A) is sufficient to
advise a jury of the consideration that must be given when faced with jailhouse

27

informant testimony. The Commission recommends, however, a minor addition to
the instructions. A copy of the proposed modification is attached.I

2.

The Commission recommends that the mandates within Dodd be codified and
added to the Criminal Discovery Code found at Section 2002 of Title 22,
Oklahoma Statutes, with the addition of the following language “If the
informant’s testimony is discovered within ten days or during trial, the defendant
should be allowed such time to review such information as the court deems
necessary and reasonable.” It is also recommended that the mandates within
Dodd be expanded to require the State, when providing any deal, promise,
inducement, or benefit to a jailhouse informant, provide a written copy of such
agreement to defense counsel. A copy of the proposed modification is attachedJ.

3.

The Commission also recommends that a pre-trial hearing which would allow the
trial court to determine the reliability of such evidence be required. The purpose
of this pre-trial hearing shall be to determine the credibility of the informant, as
well as to determine whether the discovery mandates have been met.

4.

The Commission also recommends that training programs for prosecutors,
defense counsel and trial judges address the use of jailhouse informant testimony.

MISCONDUCT
(Prosecutors, Defense Counsel, Law Enforcement, Trial Courts)

Review of Oklahoma cases that resulted in exonerations revealed that a contributing
cause to the convictions was misconduct of the professionals involved in criminal convictions.
In order to ensure that all professionals involved in criminal convictions are well trained,
competent, and qualified to perform the necessary services, the Legislature must continue to
adequately fund such services.

28

Prosecutorial Misconduct. A recent incident in which two assistant district attorneys
were fired due to their action of withholding from defense counsel potentially exculpatory
evidence in a murder trial reveals one area of prosecutorial conduct that must be addressed.6
Although it is hoped that this was an isolated incident and recognizing that human error can
happen, it emphasizes the need for all attorneys involved in the criminal justice system to be alert
and ever vigilant in the ultimate goal, which is a determination of the truth.

A common issue raised in an appeal of a criminal conviction is prosecutorial misconduct.
Such allegations include (1) withholding exculpatory evidence from the defense; (2) allowing
witnesses to testify untruthfully; and (3) making misleading arguments in opening and closing
statements. Many times these allegations are found to be baseless, but too many times error is
found. Prosecutors must be educated on these issues to reduce such mistakes. Further, in cases
where such misconduct is willful, deliberate and made in bad faith, notice should be filed with
the Oklahoma Bar Association for appropriate disciplinary proceedings.

The Oklahoma Criminal Discovery Code, found at Title 22, Section 2002 of the
Oklahoma Statutes, provides that any evidence favorable to the defendant must be provided to
the defense. Thus, it does not appear that legislative action is required, with the exception of
strengthening this duty with required written record retention. It appears the primary way to
address this concern is to ensure that prosecutors are trained that when dealing with evidence
which may be exculpatory or may lead to exculpatory evidence, the rule must be always to
disclose such evidence to the defense.

Defense Counsel/Ineffective Assistance. Ineffective assistance of defense counsel is a
major issue contributing to the wrongful conviction of many individuals. This may be in part
due to overworked or underpaid attorneys. It may also be attributable to incompetence of
counsel or to personal issues, such as addictions to drugs or alcohol.

However, just as

prosecutors must be ever vigilant in the ultimate goal, which is determination of the truth, so too
must be defense counsel.
6

See
3665479.

http://newsok.com/oklahoma-county-district-attorney-fires-two-assistants/article/

29

Due to the seriousness and finality of capital cases, the Commission recommends
guidelines, including qualifications and training of defense counsel, be codified and enforced.
Rule 1.1 of the Oklahoma Rules of Professional Conduct, Okla. Stat. tit. 5, Ch. 1, App. 3-A
mandates:

A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the
representation.

Accordingly, to meet the mandate of Rule 1.1, retained counsel should have the same
qualifications and training of appointed counsel. These qualifications must be met as it is
indisputable that when a defense attorney is not qualified and does not do his/her job, which is to
effectively represent the client, it is the client who will suffer. This cannot be allowed.

Law Enforcement Officers.

The police play a crucial part in the criminal justice system. They usually provide the
evidence used by the prosecution to obtain a conviction. Thus, the police investigation can
greatly affect the outcome of a trial. Consequently, we must ensure that all police officers are
sufficiently trained and are worthy to wear the badge and uniform.

Clearly, police are interested in apprehending the right person. Law enforcement, like all
professionals in the criminal justice system, do not desire to convict the innocent. The practices
of law enforcement officers are addressed in several other Commission reports. The practice
addressed in this report makes it the duty of law enforcement to promptly provide the appropriate
prosecutorial agency with exculpatory or potentially exculpatory evidence.

30

Trial Judges.

Just as prosecutors, defense attorneys and law enforcement must receive adequate
training, so too must trial judges.

Trial judges have the responsibility of ensuring that a

defendant is not denied any constitutional or statutory right he is entitled to receive.
Recommendations are made to ensure that trial judges have the necessary knowledge, skills and
resources.

Recommendations:

Prosecutors:

1.

The Commission recommends that prosecutors be required to maintain a record of
all evidence disclosed to the defendant, with special emphasis on exculpatory or
potentially exculpatory evidence. A copy of such record shall be provided to the
defense.

The Commission recommends that Title 22, Section 2002 of the

Oklahoma Statutes be amended to include language mandating such record
retention.

2.

The Commission recommends that misconduct of a prosecutor that is willful,
deliberate and made in bad faith or egregious be reported by the Court before
which the violation occurred, and/or the Court of Criminal Appeals, and/or
opposing counsel to the Oklahoma Bar Association for disciplinary proceedings,
as required by Rule 8.3(a) of the Oklahoma Rules of Professional Conduct, Okla.
Stat. tit. 5, Ch. 1, App. 3-A.

3.

The Commission recommends that prosecutors receive training that includes the
following topics:

a.

The risks associated with false testimony by jailhouse informants.
31

b.

The risks associated with false testimony of accomplice witnesses.

c.

The risks associated with false confessions and the protocols available to
minimize those risks.

d.

The risks associated with false identifications and the protocols available
to minimize those risks.

e.

Police investigative and interrogation methods.

f.

Discovery practices/Brady requirements.

g.

Forensic evidence.

h.

Mental health evidence.

i.

Retention of evidence.

j.

Common areas of prosecutorial misconduct, including making misleading
arguments that overstate the probative value of certain evidence.

Defense Counsel:

1.

The Commission recommends that the Legislature continue to adequately fund
indigent defense services in cases requiring appointment of counsel at a level that
ensures that all indigent defendants receive effective and meaningful
representation.

2.

The Commission also recommends that legislation be passed mandating (1) that a
capital defense team consist of no fewer than two attorneys; and (2) that certain
qualifications for defense counsel in capital cases be met. A copy of the proposed
legislation setting forth the proposed qualifications is attachedK.

3.

The Commission recommends that if it is obvious to the trial court that retained
counsel does not have the knowledge and/or skill to competently represent a
criminal client, as required by Rule 1.1 of the Oklahoma Rules of Professional
Conduct, Okla. Stat. tit. 5, Ch. 1, App. 3-A, the trial court shall hold an in camera
hearing as discussed by the Oklahoma Court of Criminal Appeals in Wiley v.
State, 2008 OK CR 30, ¶ 8, 199 P.3d 877, 880.

32

4.

The Commission further recommends that misconduct of a defense lawyer that is
willful, deliberate and made in bad faith, or due to egregious incompetence of
defense counsel, a complaint shall be filed with the Oklahoma Bar Association, as
required by Rule 8.3(a) of the Oklahoma Rules of Professional Conduct, Okla.
Stat. tit. 5, Ch. 1, App. 3-A.

Such complaint shall be filed by the Oklahoma

Court of Criminal Appeals, if that court made the ineffective determination.
Otherwise, notice shall be filed by the Office of the Attorney General.

5.

The Commission also recommends that the training or education programs
mandated for defense counsel be obtained not only through the Oklahoma
Indigent Defense and Public Defender Systems but also through Career Tech
programs and the OSBI which provides training for forensic evidence.

The

required training should be on the following topics:

a.

The risks associated with false testimony by jailhouse informants.

b.

The risks associated with false testimony of accomplice witnesses.

c.

The risks associated with false confessions and the protocols available to
minimize those risks.

d.

The risks associated with false identifications and the protocols available
to minimize those risks.

e.

Police investigative and interrogation methods.

f.

Discovery practices/Brady requirements.

g.

Forensic evidence.

h.

Mental health evidence.

i.

Investigative methods for obtaining mitigating evidence.

33

Law Enforcement Officers:

1.

The Commission recommends that all police and other investigative agencies
receive training on the obligation to disclose exculpatory or potentially
exculpatory evidence and to promptly deliver such evidence to the appropriate
prosecutorial agency.

2.

The Commission also recommends that all police and other investigative agencies
receive training through the CLEET on the following topics:

a.

The risks associated with false testimony by jailhouse informants.

b.

The risks associated with false testimony of accomplice witnesses.

c.

The risks associated with false confessions and the protocols available to
minimize those risks.

d.

The risks associated with false identifications and the protocols available
to minimize those risks.

e.

Police investigative and interrogation methods.

f.

Discovery practices/Brady requirements.

g.

Forensic evidence.

h.

Mental health evidence.

i.

Collection and retention of evidence.

Trial Judges:

1.

The Commission recommends that an Administrative Order from the Oklahoma
Administrative Office of the Courts be implemented requiring not less than eight
hours of training in capital litigation before a district court judge can preside over
a capital murder trial. Such training shall include the following topics:

a.

Jury selection in capital cases.

b.

Proper opening and closing statements.

34

c.

Presentation of evidence in support of aggravating circumstances.

d.

Presentation of evidence in support of mitigation.

In addition, the Oklahoma Administrative Office of the Court should require not
less than twelve hours of training, bi-annually, for all trial court judges. Such
training shall include the following topics:

a.

The risks associated with false testimony by jailhouse informants.

b.

The risks associated with false testimony of accomplice witnesses.

c.

The risks associated with false confessions.

d.

The risks associated with false identifications.

e.

Police investigative and interrogation methods.

f.

Discovery practices/Brady requirements.

g.

Forensic evidence.

h.

Mental health evidence.

i.

Common areas of prosecutorial misconduct.

j.

Recognition of ineffective counsel and the procedures of an in camera
hearing as discussed in Wiley v. State, 2008 OK CR 30, ¶ 8, 199 P.3d 877,
880.

2.

The Commission recommends that the Oklahoma Supreme Court and the Judicial
Conference determine the manner in which the above-mandated training is to be
provided.

3. The Commission also recommends that the Oklahoma Administrative Office of
the Courts update the Bench Books for the trial judges and ensure that all trial
court judges have an updated copy of such book. The Commission recommends
that the Bench Book be updated annually.

35

VICTIM/FAMILY RIGHTS INCLUDING COMPENSATION FOR VICTIMS AND
WRONGFULLY CONVICTED

CHAIR: ANDREA HAMOR EDMONDSON, M.A.
MEMBERS: JACQUELINE STEYN, CHRISTY SHEPPARD, STEWART MEYERS, DISTRICT
ATTORNEY DENNIS SMITH, REPRESENTATIVE LEE DENNEY, SENATOR CONSTANCE
JOHNSON
Those proven to have been wrongfully convicted and subsequently incarcerated face
great obstacles even after their convictions have been set aside. Persons wrongfully convicted
were incarcerated for an average of 13.5 years 7 and face significant challenges to reintegrating
into society. While persons convicted of crimes have access to reintegration services to assist
parolees, persons wrongfully convicted do not enter the parole system and do not have access to
any reintegration services available such as assistance finding housing, work, and medical care
through state or community-based services. A person who has been wrongfully convicted, even
if found innocent, often finds it difficult or impossible to return to his previous life regardless of
education or employment status and paradoxically is eligible for fewer, if any, services to return
to society.
During their time in prison, much of the world exonerees knew has changed and moved
on. Exonerees face “lost time” as a result of their years in prison. Many face challenges finding
employment because they have not had the opportunity to develop common employment skills,
are not familiar with the latest technology, and have long gaps in their employment history. This
lost time also impacts the exonerees’ relationships and personal support systems. Within their
families, children have grown, partners may have moved on, and family members may have
passed away. These changes present significant emotional and psychological stress that has
lasting effects.
While the world has changed, the exoneree is also changed by his incarceration.
Institutionalization, adaptations to living while in prison, causes exonerees to develop different
and often negative behaviors. Feeling emotional distance, aloofness, anxiety with forming
relationships and other coping mechanisms for prison life are not helpful upon release. Other

7

National Innocence Project
36

psychological impact includes Post Traumatic Stress Disorder (PTSD) and many exonerees were
victims of violence while in prison. Lack of medical care while incarcerated can also have a
significant impact on exonerees with lasting physical effects.
Those found innocent of the crimes for which they were convicted were both wrongfully
imprisoned and continue to face these challenges upon their release. Compensation for lost time
can, in part, right the wrongs inflicted on the innocent. The Oklahoma Justice Commission
makes the following recommendations to help wrongfully convicted persons successfully reenter society and compensate those found innocent.

RECOMMENDATIONS
1. The Commission recommends that all persons wrongfully convicted have access to any
reintegration services available to parolees and, if necessary, additional immediate
services. Upon release, they should be provided with subsistence and personal care
services such as cash, clothing, housing, and transportation assistance. Appropriate
assistance and case management should be provided by a state agency such as the
Oklahoma Department of Human Services.

2. The Commission recommends that long-term reintegration services be provided to
wrongfully convicted persons including education or job training, employment
counseling, and a stipend for health insurance, counseling, and other services as
necessary.

3. The Commission recommends that legislation be enacted to immediately update records,
including to immediately expunge the conviction if the conviction is vacated, set aside, or
overturned notwithstanding 22 OS § 18 and 19. A significant barrier to employment for
persons wrongfully convicted is inaccurate criminal records.

4. The Commission recommends enactment of legislation to provide compensation indexed
at the federal level currently $50,000 per year of incarceration for a person who was
wrongfully convicted and can prove his actual innocence, regardless of plea, and

37

eliminate the cap from a maximum of $175,000 to be in alignment with the comparable
federal statute (28 USC § 2513). Compensation should be exempt from state taxes.

While the focus of the work of the Oklahoma Justice Commission has been on improving the
criminal justice system to reduce or eliminate wrongful convictions, it is important to note that
wrongful conviction impacts crime victims and their families, as well. The exoneration process
can inadvertently cause significant trauma, fear, and stress to crime victims. Except in cases of
deliberate obstruction or perjury, crime victims are not responsible for mistakes or inadequacies
in the criminal justice system and do not share any blame for wrongful convictions.

5. The Commission recommends that before action is taken to vacate a conviction, the
attorney responsible should take reasonable steps to notify the crime victim or family of
the victim.

6. The Commission also recommends enacting legislation to allow all services for crime
victims available during the initial criminal proceedings to be reoffered in cases when a
conviction is being reconsidered. Services should include access to information about the
proceedings, counseling, and other services provided through the Crime Victims’
Compensation Fund.

38

Additional Recommendation Regarding Prosecutorial or Investigatory Misconduct

Recognizing that there are instances of prosecutorial or investigatory misconduct, the
Commission recommends additional study to determine whether current laws and court rules are
adequate to ensure that remedies are available and applied to effect the release of innocent
persons.
The Commission is concerned that cases such as the Oklahoma City Police chemist and
the Tulsa Police federal investigation, may affect many defendants who were convicted, in part,
by perjured or inaccurate testimony from law enforcement personnel. The Commission wants to
ensure that the remedies available in such instances are adequate.
Therefore, it is the additional Recommendation of the Commission that the Legislature
initiate a study to determine, in such instances:
1. What remedies are currently available;
2. The adequacy of existing remedies;
3. What additional remedies may be warranted;
4. Whether current remedies may be improved; and
5. Whether the Court of Criminal Appeals should review and amend its rules
on pro se arguments and briefs.

39

A

40

A

OKLAHOMA BAR ASSOCIATION RESOLUTION ESTABLISHING
THE OKLAHOMA JUSTICE COMMISSION: A Commission Dedicated
to Enhancing the Reliability & Accuracy of Convictions

WHEREAS, 258 individuals in the United States have been exonerated through post conviction
DNA testing, 17 of whom were sentenced to death, and the average length of time served by
these exonerees being 13 years;
WHEREAS, 10 individuals have been exonerated in Oklahoma through post-conviction DNA
testing, four of whom were in prison for murder;
WHEREAS, criminologists have concluded that biological evidence is unavailable in the vast
majority of criminal cases and that consequently wrongful convictions revealed by DNA testing
represent a small proportion of wrongful convictions overall;
WHEREAS, the incarceration of an innocent person not only works an injustice against that
individual, but also harms society in that the real perpetrator of a crime remains free and able to
commit additional criminal acts;
WHEREAS, it is important for both the criminal justice stakeholders and the citizens of
Oklahoma to understand why these individuals were wrongfully convicted and how wrongful
convictions may be avoided in the future; and
WHEREAS, thorough, unbiased study and review in other states has resulted in
recommendations for significant reforms to the criminal justice system in order to avoid
wrongful convictions, and Oklahoma has not engaged in any such review of the state's criminal
justice system; now, therefore, be it
RESOLVED, by the Oklahoma Bar Association, in recognition of the need to provide a
continuing forum for education and dialogue regarding the causes of wrongful conviction of the
innocent and, where appropriate, to recommend and assist in the implementation of justice
system enhancements, which will increase the reliability of convictions in Oklahoma,
The Oklahoma Bar Association hereby establishes the Oklahoma Justice Commission: A
Commission Dedicated to Enhancing the Reliability & Accuracy of Convictions.
OKLAHOMA JUSTICE COMMISSION
SECTION 1: STRUCTURE AND COMPOSITION OF THE COMMISSION
The structure and composition of the Commission shall be:
Commission Membership and Officers:

41

The Commission shall consist of as many members as the Chair deems, necessary. The officers
of the Commission shall include at least a Chair and a Secretary. The Chair of the Commission
shall be the President of the OBA or his or her designee. The remaining officers shall be
considered upon recommendation of the Chair and shall be elected by a majority of the
Commission members.
Selection and Term of Members:
The Chair shall appoint the Commission's other members in his or her discretion, but
representation shall include at least one member from each, of the following constituencies: (1)
district attorneys (both a representative from urban and rural areas), (2) defense attorneys, (3)
trial court judges, (4) appellate court judges,. (5) police (both a representative from urban and
rural areas), (6) sheriffs, (7) legal scholars, (8) legislators, (9) the office of the Attorney General,
(10) the OSBI (11) victim advocates,, (12). public defenders, (13) a CLEET (Council on Law
Enforcement Education and 'Training) representative, (14) an expert or liaison from the
innocence community, (15) a forensic science consultant or expert, and (16) a member of the
general public. Additional members shall be appointed by the Chair as necessary, and at least
one of the members on the Commission shall have litigation experience.
The members of the Commission shall serve a term of two years. Initial terms shall begin at the
time the representatives are selected, which shall take place within six months of the resolution's
passage.
SECTION 2: RESPONSIBILITIES OF THE COMMISSION
The Commission's major responsibilities shall include raising awareness of the issues
surrounding wrongful convictions and studying and providing recommendations regarding the
following:
Causes of Conviction of the Innocent:
The Commission shall seek to research and identify the common causes of conviction of the
innocent, both nationally and in Oklahoma. These include, but are not limited to, (1) eyewitness
misidentification, (2) un-validated or improper forensics, (3) false confessions or admissions, (4)
forensic science misconduct, (5) government misconduct, (6) incentivized witnesses, and (7)
inadequate or improper lawyering.
Implicated Procedures:
The Commission shall seek to identify law enforcement, forensic, trial and judicial procedures,
and attorney techniques, which may cause or increase the likelihood of the conviction of the
innocent.
Remedial Strategies and Procedures:

42

The Commission shall work to create remedial strategies designed to reduce or lessen the
possibility of conviction of the innocent, including, but not limited to, procedural and
educational remedies, training of criminal justice practitioners, and the development of
procedures to identify, expedite the release of, and rightfully compensate persons wrongly
convicted.
Implementation Plans:
The Commission shall develop plans to implement remedial strategies, such plans to include,
but not be limited to, analysis of implementation expenses, ongoing costs, possible savings and
the impact on the criminal justice system for each potential solution; projected effectiveness of
proposed plans, and any potential negative impact of proposed plans on the conviction of guilty
persons.
The Commission shall also perform a cost analysis of wrongful convictions and their effect upon
the State.
SECTION 3: ADDITIONAL RESPONSIBILITIES OF THE COMMISSION
The Commission shall provide periodic interim reports of its findings and recommendations as
necessary and annual reports no later than 31 December each year to the Oklahoma Bar
Association Board of Governors.
This Resolution shall be promulgated by publication in the Oklahoma Bar Journal and via
OBA's website (http://www.okbar.org).
Adopted by the OBA Board of Governors this the 24th day of September, 2010.

43

B

44

B

MEMBERSHIP OF THE OKLAHOMA JUSTICE COMMISSION
First Name

Last Name

Affiliation

William A. Drew

Edmondson

Chair, Oklahoma Justice Commission, Oklahoma City

David

Prater

District Attorney, Oklahoma City

J. William

Conger (now deceased)

OCU School of Law

Larry

Hellman

OCU School of Law, Oklahoma City

Dennis

Smith

District Attorney, Arapaho

Mack

Martin

Defense Attorney, Oklahoma City

Thomas

Alford

Trial Court Judge, Muskogee

Vonda

Wilkins

Defense Attorney, Guymon

Clancy

Smith

Appellate Court Judge, Oklahoma City

Bill

Citty

Chief of Police, Oklahoma City

Chad

Farmer

Police, Muskogee

Scott

Walton

Sheriff, Claremore

John

Whetsel

Sheriff, Oklahoma City

John

Claro

Legal Scholar, Oklahoma City

Andrea

Hamor Edmondson

Victims Advocate, Oklahoma City

Bob

Ravitz

Public Defender, Oklahoma City

John

Yoeckel

Member of the Public, Oklahoma City

Dwight

Adams

Forensic Specialist, Edmond

Steve

Emmons

CLEET Representative, Ada

Stan

Florence

OSBI Director, Oklahoma City

Jackie

Steyn

Victims Advocate, Oklahoma City

Tim

Dorsey

Police, Edmond

Reta

Strubhar

Retired Appellate Court Judge, Yukon

Sue

Wycoff

Former Defense Attorney, Norman

Constance N.

Johnson

Senator, State of Oklahoma, Oklahoma City

Lee

Denney

Representative, State of Oklahoma, Cushing

Cathy

Christensen

2012 OBA President

Carrie

Bullard

Secretary, Oklahoma Justice Commission, OKC

Joshua

Snavely

Member of the Public, Edmond

Stewart

Meyers

Member of the Public, Oklahoma City

Jennifer

Miller

Oklahoma Attorney General's Office, OKC

Lee

Cohlmia

District Attorneys Council, Oklahoma City

Andrea

Swiech

OSBI, Oklahoma City

45

C

46

C

Cases of Interest to the Oklahoma Justice Commission

Miller v. State, 92 F.3d 1196, (10th Cir. 1996)
Pierce v. State, 359 F.3d 1279 (10th Cir. 2004)
Bryson v. Macy, 611 F. Supp. 2d 1234 (W.D. Okla. 2009)
McCarty v. Gilchrist, 646 F.3d 1281 (W.D. Okla. 2011)
Wilhoit v. State, 816 P.2d 545 (Okla. Crim. App. 1991)
Arvin Carsell McGee, Jr. v. State of Oklahoma, Case No. CF-1988-886; District Court of Tulsa
County, Oklahoma
State of Oklahoma v. Calvin L. Scott; Case No. CF-2000-352; District Court of Payne County,
State of Oklahoma
State of Oklahoma v. Ronald Keith Williamson and Dennis Leon Fritz; Case No. CRF-87-90;
District Court of Pontotoc County, State of Oklahoma

47

D

48

D

Oklahoma Statutes Citationized
Title 21. Crimes and Punishments
Chapter 1 - Preliminary Provisions
Section 13.1 - Minimum Sentences - Defined Crimes

§ 13.1. Minimum Sentences - Defined Crimes

Persons convicted of:
1. First degree murder as defined in Section 701.7 of this title;
2. Second degree murder as defined by Section 701.8 of this title;
3. Manslaughter in the first degree as defined by Section 711 of this title;
4. Poisoning with intent to kill as defined by Section 651 of this title;
5. Shooting with intent to kill, use of a vehicle to facilitate use of a firearm, crossbow or other weapon, assault,
battery, or assault and battery with a deadly weapon or by other means likely to produce death or great bodily harm,
as provided for in Section 652 of this title;
6. Assault with intent to kill as provided for in Section 653 of this title;
7. Conjoint robbery as defined by Section 800 of this title;
8. Robbery with a dangerous weapon as defined in Section 801 of this title;
9. First degree robbery as defined in Section 797 of this title;
10. First degree rape as provided for in Section 1115 of this title;
11. First degree arson as defined in Section 1401 of this title;
12. First degree burglary as provided for in Section 1436 of this title;
13. Bombing as defined in Section 1767.1 of this title;
14. Any crime against a child provided for in Section 843.5 of this title;
15. Forcible sodomy as defined in Section 888 of this title;
16. Child pornography as defined in Section 1021.2, 1021.3 or 1024.1 of this title;
17. Child prostitution as defined in Section 1030 of this title;
18. Lewd molestation of a child as defined in Section 1123 of this title;
19. Abuse of a vulnerable adult as defined in Section 10-103 of Title 43A of the Oklahoma Statutes who is a
resident of a nursing facility;
20. Aggravated trafficking as provided for in subsection C of Section 2-415 of Title 63 of the Oklahoma Statutes; or
21. Aggravated assault and battery upon any person defending another person from assault and battery,
shall be required to serve not less than eighty-five percent (85%) of any sentence of imprisonment imposed by the
judicial system prior to becoming eligible for consideration for parole. Persons convicted of these offenses shall not
be eligible for earned credits or any other type of credits which have the effect of reducing the length of the sentence
to less than eighty-five percent (85%) of the sentence imposed.
Historical Data
Added by Laws 1999, 1st Extr. Sess., HB 1008, c. 4, § 30, emerg. eff. July 1, 1999; Amended by Laws 2000, HB
2037, c. 291, § 2, eff. November 1, 2000 (superseded document available); Amended by Laws 2001, SB 803, c. 428,
§ 2, emerg. eff. June 5, 2001 (repealed by Laws 2002, HB 2924, c. 22, § 34, emerg. eff. March 8, 2002); Amended
by Laws 2001, SB 397, c. 437, § 2, emerg. eff. July 1, 2001 (superseded document available); Amended by Laws
2002, HB 2924, c. 22, § 7, emerg. eff. March 8, 2002 (superseded document available); Amended by Laws 2007, SB
677, c. 199, § 1, eff. November 1, 2007 (superseded document available); Amended by Laws 2009, HB 2029, c.
234, § 117, emerg. eff. May 21, 2009 (superseded document available); Amended by Laws 2011, SB 952, c. 385, §
1, eff. November 1, 2011 (superseded document available).

49

E

50

E

Crime Lab Report: Media and public-policy analysis for the forensic science community; July

16, 2008 CRIME LAB REPORT
Media and public-policy analysis for the forensic science community
The Wrongful Conviction of Forensic Science
By: John Collins and Jay Jarvis July 16,2008

EXECUTIVE SUMMARY
Crime Lab Report is an independent research organization that examines media and public
policy trends related to forensic science. Past research and commentary published by Crime Lab
Report have been both supportive and critical of the forensic sciences. The purpose of this study,
however, was to examine the accuracy of claims that forensic science is a leading cause of
wrongful convictions. To accomplish this, Crime Lab Report reviewed public information
pertaining to the first 200 DNA exonerations that occurred between 1989 and 2007. The
frequencies of "probable systemic failures" extracted from case profiles published by the
Innocence Project were tabulated and analyzed. As a result of this study, forensic science
malpractice, whether fraudulent or not, was shown to be a comparatively small risk to the
criminal justice system, When it does occur, however, the risks are best mitigated by competent
and ethical trial lawyers dedicated to seeking the truth.
The following is a summary of Crime Lab Report's major findings. More specific data and
comments are provided on the pages that follow this summary.

1. In the 200 convictions studied, 283 instances of probable systemic failure were identified and
isolated from case profiles published by the Innocence Project. In many cases, these profiles
were either corroborated or clarified by other sources, These failures are ranked as follows:
Rank
1
2
3
4
5
6

Percen
t
54%
15%
11%
10%
9%
1%

Number
153
43
32
27
25
3

Description
Eyewitness misidentifications
False confessions
Forensic science malpractice
Government misconduct
Informant snitches
Bad lawyering

51

2. Of the 32 instances of forensic science malpractice shown above, only 1 was found to have
occurred in an accredited laboratory. This error did not directly incriminate the defendant.
3. In 36 of the 200 overturned convictions, the existence of forensic testing results favorable to
the defendant was confirmed by various sources. This favorable forensic evidence has been
largely ignored in public statements made by the Innocence Project likely because the results
were either not presented at trial or otherwise failed to cause an acquittal.
4. Bad lawyering was found to be a much more pervasive problem than what has been previously
estimated by both the Innocence Project and a highly publicized study recently published in the
Columbia Law Review.
5. Forensic science malpractice was identified as the sole systemic failure in only two overturned
convictions (1%). Both were associated with the work of Fred Zain.
6. Claims that "faulty forensic science" is a leading cause of wrongful convictions were found to
be based on careless and improper statistical expressions resulting from a misuse of available
exoneration data.

INTRODUCTION
The purpose of this study was to explore the basis and validity of claims being perpetuated in the
public domain that faulty forensic science is a leading cause of wrongful convictions. Many
wrongful convictions have been identified and remedied in recent years through post-conviction
litigation and DNA testing. Post-conviction litigation is the specialty of an organization called
the Innocence Project in New York. Its affiliates and supporters comprise what is known as the
Innocence Network - organizations and advocates dedicated to supporting convicted offenders
whose innocence can be proven using modern DNA technology.

The exoneration of truly innocent people is clearly an act of social justice; however, the work of
the Innocence Project goes far beyond this. Passionately and convincingly they promote the
establishment of state oversight commissions to "review the forensic methods that are accepted
in state courtrooms and to investigate allegations of misconduct, negligence or error in labs." 1
Superficially, this might seem reasonable. But a rapidly growing number of forensic science

52

laboratories in the United States already subject themselves to rigorous scrutiny through
accreditation and other quality-control safeguards that have only recently demonstrated their full
potential to monitor work practices and accuracy in the profession of forensic science. For each
of these laboratories, the implications associated with being governed by a commission prone to
political wrangling and bureaucratic inefficiencies are quite troublesome,

For years, the Innocence Project has publicly condemned what it claims to be the frequent use of
erroneous, fraudulent, or unreliable forensic evidence against defendants in criminal trials. And
until recently, no authoritative statistical studies had been completed to either support or refute
this argument.

But all this changed with a groundbreaking study published in the January 2008 issue of the
Columbia Law Review, titled "Judging Innocence." Its author, Brandon Garrett, is an associate
professor at the University of Virginia School of Law. Garrett and his team carefully studied the
first 200 DNA exonerations that occurred between 1989 and 2007, documenting the types of
evidence originally used against the defendants during their trials. Based on his research, Garrett
argued in support of special commissions to prevent wrongful convictions. "[R]esearch suggests
that procedures such as....oversight of forensic crime laboratories, could have prevented many
such costly miscarriages.. ."2

Professor Brandon Garrett is an experienced post-conviction litigator who once served as an
associate at Cochran, Neufeld & Scheck LLP in New York City. Peter Neufeld and Barry Scheck
are the cofounders of the Innocence Project located in Manhattan.3

Crime Lab Report editors became intrigued by the work of Professor Garrett when it was learned
that his study was presented before a special committee convened by the National Academy of
Sciences in Washington, D.C. News reports from various sources, including the New York Times,
attempted to summarize Garrett's findings, which seemed to indicate that faulty forensic science
may very well be a leading cause of wrongful convictions in the United States.

53

Therefore, Crime Lab Report studied the work and findings of Professor Garrett and extracted
pertinent data. This information was then cross-referenced with case profiles, media reports, and
public comments pertaining to the first 200 convictions overturned by post-conviction litigators
armed with modern DNA technology and other scientific evidence.

Based on this research, a very compelling and contextually honest case can be made for why the
conviction of forensic science may be as erroneous as the 200 convictions summarized in this
report. Hopefully, future studies seeking to explain the major causes of wrongful convictions
may be conducted with more statistical and scientific accuracy.

THE CONVICTION OF FORENSIC SCIENCE
The year 1989 marked the beginning of a long and arduous period in the history of America's
criminal justice system. It was then that Gary Dotson and David Vasqucz were exonerated and
released from prison based on new DNA testing capabilities. Dotson served 10 years in prison
for aggravated kidnapping and rape. Vasquez served four years in prison for second-degree
murder and burglary. Both men were incriminated by forensic evidence during their original
trials.4

In 1992, well-known criminal defense attorneys Barry Scheck and Peter Neufeld created the
Innocence Project, "a national litigation and public policy organization dedicated to exonerating
wrongfully convicted people through DNA testing and reforming the criminal justice system to
prevent future injustice."5 As the Innocence Project expanded over the next sixteen years, the
basic principles of its public policy agenda were advanced through well coordinated and
carefully prepared statements that repeatedly called into question the reliability and
professionalism of forensic scientists in the United States.

In a 1996 USA Today cover story written by Becky Beaupre and Peter Eislcr, Innocence Project
co-director Peter Neufeld was quoted as saying "There's absolutely no reason that crime
laboratories, which routinely make decisions that have life and death consequences for an
accused person, should be less regulated than a clinical laboratory utilizing similar tests." 6

54

Similar sentiments were expressed in astounding detail by an aggressive team of Chicago
Tribune reporters who published a stinging series of investigative reports in 2004 that chronicled
some of the cases being worked by the Innocence Project. The reports, which were released one
after another over the course of a week, seemed to intentionally lure even the most educated and
thoughtful readers into believing that forensic science laboratories were some of the most corrupt
and incompetent organizations in the United States.

The Tribune set the stage for its attack on forensic science in the first article published on
October 17, 2004. "At the center of this upheaval is the advent of DNA testing, which has
injected a dose of truth serum into other forensic tools," argued Tribune reporters Flynn Roberts,
Steve Mills, and Maurice Possley. "With its dramatic precision, DNA has helped reveal the
shaky scientific foundations of everything from fingerprinting to firearm identification, from
arson investigation to such exotic methods as bite-mark comparison."7

On January 13, 2005, CAW aired "Can Crime Labs Be Trusted," a probing investigative report
that claimed to uncover profound weaknesses in how America's crime laboratories were being
operated. Among the pertinent points delivered by CAW was the supposed lack of oversight and
accountability to ensure that work is conducted properly. Peter Neufeld was interviewed in the
documentary. "Forensic science has gotten a free ride for the last 50 years, primarily because
they made this bogus argument that [they] don't need to be regulated," 8

Then, exactly three years after the Chicago Tribune series, the "shaky" scientific methods it
brought to light became the subject of another television documentary, this time by MSNBC,
titled "When Forensics Fail," which showcased the troubling stories of innocent persons
convicted and imprisoned, of crimes that they likely did not commit. 9 One of the cases was that
of Ray Krone, who was convicted in 1992 for murder, kidnapping, and sexual assault based
largely on a forensic bite-mark identification. DNA collected from the bite-mark was eventually
excluded as belonging to Krone.

55

On October 1, 2007, not long before MSNBC aired its documentary, the New York Times
published a powerful; front-page story about the public policy lessons of post-conviction
litigation using DNA. In the article, Peter Neufeld argued that "The legislative reform movement
as a result of these DNA exonerations is probably the single greatest criminal justice reform
effort in the last 40 years."10 But what quickly attracted the attention of some in the forensic
science community was not the article itself, but the fact that it "coincidently" appeared during
the weeklong annual training symposium hosted by the American Society of Crime Laboratory
Directors in Orlando, Florida.

Any suspicions that the timing of the aforementioned Times article might have been orchestrated
by the Innocence Project and/or its supporters in the media were nearly confirmed on February
19, 2008 when a similar front-page story about post-conviction DNA exonerations appeared in
USA Today during the annual meeting of the American Academy of Forensic Sciences, one of
the largest annual forensic science conventions in the world. A provocative comment by Peter
Neufeld was included in the story.11

So by the time Professor Brandon Garrett published the results of his research in "Judging
Innocence," the profession of forensic science had been entirely and completely convicted of
being responsible for the imprisonment of innocent citizens and a symbol of decline and
incompetence within America's criminal justice system. News outlets across the country bought
into what they perceived to be a compelling and disturbing story. Elected officials became more
open to the idea that faulty forensic science was running rampant in U.S. courtrooms and might
require legislative action to correct. Garrett's work simply provided what appeared to be a longawaited statistical validation of the rhetoric being disseminated by the Innocence Project and its
supporters.

In fact, both Brandon Garrett and Peter Neufeld presented the "Judging Innocence" findings on
September 20, 2007 to a special committee convened by the National Academy of Sciences,
which was charged with the task of identifying the needs of the forensic science community.

56

Crime Lab Report obtained a copy of their presentation from the National Academy of Sciences
public records office.12

Flawed Testimony
Of the 200 exonerations that Professor Garrett examined, he identified 113 cases (57%) where
forensic evidence was presented against the defendant during the original trial. 13 According to
Garrett, the major problem in wrongful convictions seems to be "improper and misleading
testimony regarding comparisons conducted."14 Such testimony, he argues, tends to bolster
questionable evidence that might otherwise have been dismissed as erroneous or unreliable in the
eyes of the jury.
Garrett and Neufeld discussed the problem of misleading testimony during their presentation at
the National Academy of Sciences in Washington, D.C. In the 113 cases involving the use of
forensic evidence against a defendant, 57% of the cases in which trial transcripts were located
involved what Garret and Neufeld characterized as improper (but not intentionally so) scientific
testimony. An additional seven cases were presented that they claimed to have been tainted by
"known misconduct."15

Taken together, 42 cases or 69% of the trial transcripts reviewed were alleged by Garrett and
Neufeld to have been tainted by faulty forensic science - a disturbing statistic if found to be true.
They also went as far as to list the names of "offending" scientists and laboratories.
In January 2008, the Senate Judiciary Committee convened a hearing to investigate the alleged
failure of the Justice Department to enforce forensic-related provisions contained in a bipartisan
legislative effort known as the Justice for All Act of2004. Peter Neufeld testified on behalf of the
Innocence Project:

"Together, misapplication of forensics and misplaced reliance on unreliable or un-validated
methodologies are the second greatest contributors to wrongful convictions. Despite these
demonstrated problems, independent and appropriately conducted investigations - which should
be conducted when serious forensic negligence or misconduct may have transpired - have been
exceedingly rare."

57

The Verdict
The final verdict in the case against forensic science may have come from the United States
Inspector General, Glenn A. Fine, during his own testimony before the Senate Judiciary
Committee. In a statement as devastating as it was simple, Fine agreed that "Negligence and
misconduct in forensic laboratories.... have led to wrongful convictions in several states." 17
If the profession of forensic science is truly guilty of these charges, and if it can be shown that it
has failed to establish the checks and balances necessary to prevent junk science and improper
testimony from violating the rights of defendants, then the recommended "sentence" of being
subjected to a politically charged, bureaucratic oversight commission would seem well deserved.
But a more reliable and honest statistical analysis has now made a compelling case to the
contrary.

THE CASE FOR EXONERATION
Although they don't command much attention amidst the fervor surrounding the innocence
movement, suspicions that DNA exonerations do not portray an accurate picture of the American
criminal justice system have been communicated from various sources.

On April 26, 2007, an op-ed piece authored by Morris Hoffman, a Colorado district court judge
and adjunct professor of law at the University of Colorado, was published in the Wall Street
Journal. Hoffman argued that that innocence movement is prone to exaggeration and a tendency
to "stretch their results beyond all statistical sense." The following quote from Hoffman seems to
adequately summarize his position:

'The mythmakers also directly conflate trial error rates with wrongful conviction rates. Studies
showing astonishingly high error rates in capital trials have very little to do with the question of
the rate at which innocent people are being convicted. V can't remember a single trial over which
I have presided - including dozens of homicides - in which, looking back, I didn't make at least
one error in ruling on objections. It is a giant leap from an erroneous trial ruling to reversible
error, and another giant leap from reversible error to actual innocence." 18

58

As Crime Lab Report moved forward with its research into claims that faulty forensic science is
a pervasive problem in the United States, Hoffman's observations began to take on new meaning.
As will be shown in this report, even the most rudimentary analysis demonstrates that the publicpolicy rhetoric of the Innocence Project is being underwritten by statistical expressions and
characterizations that collapse under the weight of intellectual scrutiny. While this does not
devalue the work of representing convicted felons who have a strong case of innocence (even
Judge Hoffman pointed out that such work "is incredibly important and should be celebrated..."),
the weight assigned to any public policy or legislative recommendations based on such
misrepresentations would seem to warrant either minimal consideration or maximum scrutiny.

Misinterpretation of Exoneration Data
The statistical evidence used against forensic science was summarized in a New York Times
editorial published on July 23, 2007. "The leading cause of wrongful convictions was erroneous
identification by eyewitnesses, which occurred 79 percent of the time," wrote Times legal
correspondent Adam Liptak. "Faulty forensic science was next, present in [57] percent of the
cases."19

The eagerness of the media to harvest these troublesome figures was only magnified by the
presentation that Brandon Garrett and Peter Neufeld gave to the National Academy of Sciences
in September 2007. The slide show they presented was titled "Improper Use of Forensic Science
in the First 200 Post-Conviction DNA Exonerations" and it relied heavily on the data generated
by Garrett's research.

But even when summarizing his own research in "Judging Innocence," which was published only
months after his appearance at the National Academy of Sciences, Professor Garrett clearly
acknowledged that his study did not seek to quantify the leading causes of wrongful convictions.
Instead, he simply sought to identify "the leading types of evidence supporting wrongful
convictions [emphasis added]."20 This clarification has fallen on deaf ears for reasons that have
only been worsened by those in the innocence movement.

59

Whatever those reasons are, suffice it to say that the public were strongly encouraged to believe
that 57% of the 200 overturned convictions were caused by faulty forensic science. This is not
even remotely accurate.

First, it is true that 113 or 57% of the 200 overturned convictions involved the presentation of
forensic evidence against defendants during their original trials. But as will be demonstrated
later, the fact that 57% of these convictions involved the use of forensic evidence does not mean
that 57% of all wrongful convictions are caused by faulty forensic science. This erroneous
interpretation seems to exemplify the kind of statistical carelessness that Judge Hoffman
complained about in his Wall Street Journal editorial.

Crime Lab Report carefully studied the Innocence Project's case profiles for each of the first 200
DNA exonerations and tabulated the number of cases in which specific "causes" occurred.
Because many of the cases have more than one cause associated with them, the combined
percentages exceed 100%. The following is a breakdown of these causes ranked from highest to
lowest.
CAUSES
BY
NUMBER
AND
PERCENT
OF CASES
Rank
1
2
3
4
5
6
7

% Cases

# Cases

77%
36%
22%
14%
13%
13%
2%

153
71
43
27
26
25
3

Description

Eyewitness misidentifications
Unreliable / limited science
False confessions
Government misconduct
Forensic science misconduct
informant snitches
Bad lawyering

These numbers come directly from the Innocence Project's published information on DNA
exonerations, yet the only two causes pertaining to forensic science (unreliable/limited science
and forensic science misconduct) account for 97 or 49% of the cases, somewhat lower than what
was quoted by the New York Times, Brandon Garrett, and Peter Neufeld.

60

The reason for this discrepancy is that 16 of the 113 cases involving forensic evidence were not
labeled by Garrett and Neufeld as being problematic, suggesting that some kind of discriminating
method was employed to distinguish legitimate forensic evidence from that which was actually
faulty. But as Crime Lab Report uncovered, this was not the case. In fact, the number of cases
involving actual instances of faulty forensic science is far less than the 97 cases tabulated above.
And as will be demonstrated in the following section, the overall statistical weight that can be
honestly assigned to faulty forensic science is very small.

Tabulation of Probable Systemic Failures
Both Brandon Garret and the Innocence Project have incorrectly relied on counting the types of
evidence used against defendants at trial and then expressing the numbers as a percentage of the
total number of cases. The problem with this method is its failure to account for cases where
multiple types of evidence were used against the defendant.
For example, in the case against Bruce Godschalk 21, who was convicted of rape and burglary by
a Pennsylvania jury in 1987, the Innocence Project identified five factors that contributed to the
conviction:

1. false eyewitness identification
2. unreliable / limited science
3. false confession
4. government misconduct
5. bad informant/snitch

Admittedly, the serology evidence failed to exclude Godschalk, but it did not conclusively
associate him either. By all accounts, the forensic testing was not faulty, just too nonspecific to
support an acquittal. Any confusion that might have been introduced by this evidence, however,
was dwarfed in significance and weight by the other four instances of failure that directly
incriminated Godschalk.

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Because five different factors are associated with the Godschalk case, proper statistical sampling
does not allow for any one factor to be fully blamed for the conviction. Yet this is exactly what
has happened.
Crime Lab Report began to correct this problem by tabulating the total number of probable
systemic failures cited by the Innocence Project, which were then expressed as a percentage of
the total number of instances. In doing so, a more valuable statistical model was created. The
following table illustrates the resulting data:
PROBABLE
SYSTEMIC
FAILURES
ACCORDIN
G TO THE
INNOCENC
E PROJECT
Rank
1
2
3
4
5
6
7
348

Percent

Number

44%
20%
12%
8%
7%
7%
1%

153
71
43
27
26
25
3

Description

Eyewitness misidentifications
Unreliable / limited science
False confessions
Government misconduct
Forensic science misconduct
Informant snitches
Bad lawyering

When expressed as a percentage of the total number of instances, not cases, unreliable/limited
science occurred 20% of the time while forensic science misconduct occurred only 7% of the
time. Collectively, this demonstrates that even the most aggressive interpretation of the
Innocence Project's own published data can only attribute 27% of all probable systemic failures
to forensic science, a far reach from the 57% cited by the New York Times.

But as the research continued, the data became increasingly favorable to forensic science.

Case Studies
Crime Lab Report randomly selected and examined the exonerations of Steven Avery, Kerry
Kotler, Clyde Charles, William Gregory, and Bruce Godschalk. In each of these cases, forensic
evidence was used by the prosecution to demonstrate guilt. As a result, they are included among
the 113 cases (57%) cited by the New York Times as being caused by faulty forensic science.
They also include the 97 (27%) instances of probable systemic failure tabulated by Crime Lab
Report.

62

But just how faulty was this evidence?

A review of each of the following cases revealed that the forensic evidence was very nonspecific
and could not scientifically or exclusively justify the acquittal of the defendant; however, no
indication could be found that the testimony or analyses were faulty. Brief descriptions of the
scientific evidence in these cases have been quoted directly from authoritative sources.

Steven Avery - "He was charged with and convicted of [a] brutal attack on [a] beach in
Manitowoc County, based almost entirely on eyewitness identification testimony of a single
witness. The state also presented microscopic hair examination evidence indicating that a hair
found on Avery was 'consistent' with the victim's hair. Avery was sentenced to 32 years in prison
in March 1986."22

Kerry Kotler - "The prosecution based its case on several points:
• "The victim identified Kotler from a group of 500 photographs."
• "The victim identified Kotler by sight and voice from a police lineup."
• "County laboratory tests showed that Kotler had three non-DNA genetic markers (ABO, PGM,
and GLO) that matched those of the semen stain left on the victim's underpants." 23

Clyde Charles - "Clyde was tried by an all-white jury of 10 women and two men. The
prosecution's evidence included the victim's identification and her testimony that the rapist called
himself 'Clyde.' A criminalist testified that two Caucasian hairs on Clyde's shirt were
microscopically similar (but not conclusively identical) to hair from the victim s head. The police
officer testified that Clyde had been wearing a dark jogging jacket with white stripes when he
saw him outside the bar, corroborating the victim's description of her assailant's dark jogging suit
with stripes. The officer also testified that Clyde had been wearing a red cap and blue jacket tied
around his neck when he saw him hitchhiking. A red baseball hat and blue jean jacket were
found near the scene of the rape."24

63

William Gregory - "William Gregory, an African-American, was arrested, charged, and
sentenced for the attempted rape of a Caucasian woman in his apartment complex after the
victim identified him in a suspect lineup. There was no other evidence in the case except for six
"Negroid" head hairs discovered in pantyhose used as a mask at the crime scene. The pantyhose
had been washed and hung in the victim's bathroom prior to the crime. At the 1993 trial a hair
microscopist stated that the hairs could have come from Gregory, and this testimony was helpful
to the prosecution."25

Bruce Godschalk - 'In May of 1987, Mr. Godschalk was convicted of [two] rapes and sentenced
to 10 to 20 years in prison. The police had recovered semen samples from both rapes but, in
1987, did not have the DNA technology to test this evidence. Mr. Godschalk's conviction was
affirmed on appeal."26

As mentioned previously, although extensive research revealed no indication that the forensic
evidence in the above cases was anything but valid, each of them has been rhetorically and
statistically attributed to faulty forensic science. In other words, because the evidence did not
prevent the conviction, it was assumed to have been faulty.

In criminal trials, it is frequently necessary for prosecutors to present weak or limited forensic
evidence against defendants. By default, physical evidence that cannot exclude a defendant as
being associated with a crime is fair-game to be used as evidence of guilt, and the jury may
benefit from hearing it. This demands ethical restraint and judicial vigilance to ensure that the
evidence is not confused for being stronger than it actually is. Therefore, competent lawyering is
a critical component in the justice system's efforts to protect the rights of defendants and the
overall fairness of the adjudicative process.

Failure to Credit Evidence Favorable to the Defendant
Perhaps the most startling data uncovered in Crime Lab Report's research was the fact that 36 out
of 200 cases (18%) were identified as having forensic evidence that was actually favorable to the
defendant. Various reasons account for why this evidence was either not presented at trial or

64

failed to cause an acquittal, but the fact remains that these instances did not temper the Innocence
Project's rhetoric blaming forensic science for wrongful convictions.

For example, in his research, Professor Garrett found two cases where fingerprint evidence was
used against the defendants. But in a third case, the trial of Antonio Beaver, he failed to give
credit to forensic scientists who, according to the Innocence Project, concluded that "fingerprints
collected from the victim's car - including prints from the driver's side and the rearview mirror did not match the victim or Beaver."27

To the credit of the Innocence Project, they do not associate Antonio Beaver's case with any
questionable forensic evidence. The same, however, cannot be said for the convictions of James
Ochoa, Drew Whitley, and Roy Brown. In each case, Innocence Project case profiles cite
unreliable / limited science as being a factor contributing to the conviction despite the knowledge
of exculpatory forensic results before trial.

James Ochoa, for example, was convicted of armed robbery and carjacking in 2005. Prosecutors
were certain of his guilt even though DNA and fingerprint evidence excluded Ochoa prior to
trial. Yet his conviction is blamed by the Innocence Project on unreliable / limited science and is
included by Garrett and Neufeld as an example of faulty forensic science.
Drew Whitley29 was convicted of murder in 1989. A laboratory technician testified that a saliva
sample associated with the crime scene did not match Whitley. Yet his conviction is blamed on
unreliable / limited science.
Roy Brown30 was convicted of murder in 1992. A bite-mark expert retained by the defense
testified during trial that six of seven bite-marks were not sufficient for analysis and that "the
seventh excluded Brown because it had two more upper teeth than he had." Yet his conviction is
blamed on unreliable / limited science.

65

Ironically, the number of such cases where forensic evidence was favorable to the defendant
exceeds the total number of cases that Crime Lab Report found to be tainted by actual forensic
science malpractice. The following section will explain how this was determined.
Forensic Science Malpractice
As Crime Lab Report's research progressed into the summer of 2007, it became increasingly
evident that there were significant problems with the Innocence Project's accounting and
characterization of cases involving forensic evidence. Up to that point, the published case
profiles and reports, such as the ones reviewed in the Bruce Godschalk case, revealed multiple
contributing factors without appropriate weight being assigned to any of them.
Because Crime Lab Report was concerned only with the role of forensic science in the
overturned convictions, a second review of all 200 case profiles, supplemented by news reports
for many of those cases, was conducted with a focus only on the role of forensic science. As a
result of this review, the 200 cases under consideration were broken down into the following
categories, all specific to forensic science:
1. Conviction not supported by forensic evidence
2. Non-specific science failed to exclude the defendant
3. Forensic Science Malpractice
4. Forensic evidence was favorable to the defendant
By evaluating the cases in this manner, the actual role of forensic evidence could be more clearly
and constructively estimated. The following table shows how the cases ranked using this
method.
THE ROLE
OF
FORENSIC
SCIENCE BY
NUMBER
AND
PERCENT
OF CASES
Rank
1
2
3
4
200

Percent

Cases

35%
32%
18%
16%

69
63
36
32

Description

Non-specific science failed to exclude the defendant
Conviction was not supported by forensic evidence
Forensic evidence was favorable to the defendant
Forensic science malpractice

Based upon this review, only 16% could be associated with probable instances of forensic
science malpractice. But as mentioned earlier, there is a problem with this approach. Expressing
systemic failures as a percentage of cases does not account for cases with multiple failures
contributing to the convictions.
Therefore, Crime Lab Report extracted the above 32 instances of probable forensic-science
malpractice and ranked them against other instances of failure identified by the Innocence
Project. This time, the total number of failures dropped from 348 to 283 due to so many
forensic-related cases having been questionably or improperly cited by the Innocence Project as
being caused by faulty forensic evidence.
66

PROBABLE
SYSTEMIC
FAILURES BY NUMBER
AND
PERCENT
Rank
1
2
3
4
5
6
283

Percent

Instances

54%
15%
11%
10%
9%
1%

153
43
32
27
25
3

Description

Eyewitness misidentifications
False confessions
Forensic Science Malpractice
Government misconduct
Informant snitches
Bad lawyering

The above table provides some of the most compelling evidence that vindicates forensic science
from the accusations of critics in the innocence movement. Only 11 % of all probable systemic
failures identified by Crime Lab Report were attributed to forensic science malpractice using the
available data.

For those who correctly argue that 11% is unacceptably high, the following section will
demonstrate why the percentage continues to shrink in favor of forensic science.

Bad Lawyering and Government Misconduct
As mentioned in the Executive Summary on the first page of this report, it was noted that the
number of convictions attributed by the Innocence Project and Professor Garrett to bad
lawyering was remarkably low, only 3 cases out of 200, or 1.1%. Government misconduct was
blamed in 27 cases (14%). Crime Lab Report's study, however, suggests, at least preliminarily,
that nearly all of the overturned convictions would have been prevented by more competent and
ethical legal counsel on both sides. This finding seems to be intuitively reasonable mainly
because lawyers are critical to ensuring that our criminal justice system is fair to all parties. It is
also consistent with standards adopted by the American Bar Association.

Kelly Pyrek, author of Forensic Science Under Siege, noted the following:

"The American Bar Association's (ABA) Model Rules of Professional Conduct outline a number
of important tenets of responsibility and professional conduct for attorneys, including 'A lawyer
shall provide competent representation to a client. Competent representation requires the legal

67

knowledge, skill, thoroughness, and preparation reasonably necessary for the representation' and
'A lawyer shall act with reasonable diligence and promptness in representing a client.'" 3I
Considering the critical role that trial attorneys play before and during a criminal trial, one would
expect the Innocence Project to identify more than three instances of bad lawyering in 200
overturned convictions.

This understatement, however, creates a massive statistical vacuum that has contributed heavily
to the wrongful conviction of forensic science in the court of public opinion.
For example, if one were to estimate that 100 instances of bad lawyering are actually represented
in the 200 convictions studied, it would raise the total number of systemic failures to 380 and
lower the percent attributable to forensic malpractice to 8.4%.

On the other hand, if the most liberal (but not necessarily the most reasonable) interpretation is
applied such that all 200 cases are assigned one instance of bad lawyering and one instance of
government misconduct, it would raise the total number of systemic failures to 653 and lower the
percent attributable to forensic science malpractice to only 4.9%.

These hypothetical estimates demonstrate how important it is to accurately and completely
tabulate the causes of wrongful convictions before assigning a specific share of the blame to any
of them. Because bad lawyering is so understated in the Innocence Project's data, the blame
assigned to forensic science malpractice has become inflated beyond reason.

Future studies conducted with the assistance of reputable forensic science experts will hopefully
look closer at the 200 overturned convictions to determine exactly how they happened and if, in
fact, the 32 instances of forensic science malpractice can be fairly labeled as such. Preliminary
information collected in this study strongly suggests that many arc not. This includes the
disturbing and tragic case against Ray Krone.

68

The Conviction of Ray Krone
According to MSNBC, it was the ultimate example of faulty forensic science - an erroneous
identification reported by a prosecution expert who testified that Ray Krone, and only Ray
Krone, was responsible for leaving a bite-mark on the breast of a dead woman found in a local
tavern. She was a waitress and Ray Krone was a frequent patron.

With little other evidence to speak of, Krone was convicted of murder and sentenced to death by
an Arizona jury, According to the Innocence Project, "At his 1992 trial, Krone maintained his
innocence, claiming to be asleep in his bed at the time of the crime. Experts for the prosecution,
however, testified that the bite-marks found on the victim's body matched the impression that
Krone had made on fa S tyro foam cup] and a jury convicted him on the counts of murder and
kidnapping."33

At lirst glance, Krone's conviction seems to be another glaring example of faulty forensic
science.

Unfortunately, critical pieces of information were left out of the Innocence Project's case profile
for Ray Krone. Prior to Krone's trial, a forensic bite-mark expert, Dr. Skip Sperber, was hired by
the prosecution to examine the bite-mark evidence. Sperber concluded that Krone, in fact, did
not leave the bite-mark found on the victim's breast and, according to MSNBC, advised
prosecutors that the police "have the wrong guy."34

Apparently unhappy with Sperber's result, prosecutors took the evidence to an inexperienced
local odontologist who conclusively identified Krone as leaving the bite-mark in question. The
Krone case was his first, according to MSNBC.

As attorney's continued to uncover problems with Krone's trial, it was learned that more
conventional and scientifically respected evidence, including fingerprints and footwear
impressions, had also been examined prior to trial and excluded Krone as being the contributor.

69

Maricopa County Attorney Rick Romley eventually apologized for the obvious miscarriage of
justice, but he conveniently passed blame for his own possible misconduct onto forensic science
by suggesting that Krone's conviction was simply the result of inadequate science.
In a case that has been touted as the quintessential example of faulty forensic science, it was
forensic science that got it right from the start.
It is true that bite-mark analysis is a discipline with little peer-oversight and no significant place
in America's crime laboratories. But the inability of Krone's team to mount an adequate defense
and the failure of prosecutors to act on the totality of forensic evidence pointing to another
perpetrator should have raised the ire of the Innocence Project enough to convince them that bad
lawyering and government misconduct were the primary causes of Krone's wrongful conviction.
But for reasons that arc difficult to understand, the Innocence Project case profile for Ray
Krone35 failed to emphasize government misconduct or bad lawyering as factors contributing to
Krone's conviction.

Closing Arguments
The leading causes of wrongful convictions are false eyewitness identifications exacerbated by
bad lawyering, and in some cases, government misconduct. As a total percentage of all systemic
failures contributing to wrongful convictions, faulty forensic science comprises a small
percentage. But more importantly, this percentage decreases considerably as stricter and more
controlled methods are employed to analyze the available exoneration data. More work should be
done in this regard.

In the meantime, the compiled data and information studied by Crime Lab Report demonstrate
faulty and incomplete statistics magnified by rhetorical misrepresentations on the part of
innocence advocates and the media, These misrepresentations have come to bear heavily on the
profession of forensic science, which is not accustomed to withstanding sustained attacks from
well-funded activists. Forensic scientists are simply too busy. For this reason, the profession is
vulnerable to being bullied.

70

The case of Ray Krone is among the most disturbing in terms of the blame unfairly placed on
forensic science and the turmoil that Krone endured as a result of government misconduct, bad
lawyering, or possibly both. But the cases of Steven Avery, Antonio Beaver, Clyde Charles,
William Gregory, Kerry Kotler, and Bruce Godschalk tell a story of their own, and they all raise
very serious questions about the lengths to which the innocence movement is willing to go in
carrying out its public policy and legislative efforts.

The authors hope that this report is subjected to fair and rigorous scrutiny. But whatever the
outcome, all stakeholders should be reminded that any public policy agenda being advanced with
exaggerations and mischaracterizations, whether intentionally fabricated or not, should be
subjected to equally rigorous scrutiny or rejected entirely.

AUTHORS' COMMENTS & PUBLIC POLICY CONSIDERATIONS

While this study seems to defend the profession of forensic science, the authors recognize that it
is very good practice for trial lawyers, judges, and juries to look cautiously, and sometimes
skeptically, at the testimony of subject-matter experts. This means that expert conclusions and
associated testimony should always be subjected to a level of scrutiny that is commensurate with
the seriousness of the matter at hand. Consequently, the adversarial system of justice in the
United States places a tremendous responsibility on lawyers and judges to be vigilant, honest,
and fair.

It remains a mystery as to why the Innocence Project only identilied 3 instances of bad
lawyering in the 200 cases studied. Even a cursory review of the case profiles shows ample
evidence to demonstrate how pervasive and obvious the problem actually was, Even the 27 cases
cited as involving government misconduct was probably much too low. That the Innocence
Project's public policy efforts focus so intently on forensic science would leave a reasonable
person to suspect that forensic science is simply a more attractive target, not because it is
justified, but because the fight attracts more attention.

71

The Innocence Project needs attention and money to drive its public policy agenda. In the age of
CSI, New Detectives, Cold Case Files, and Crossing Jordan, taking on crime laboratories will
turn heads more quickly than esoteric procedural debates among litigators.
The major public policy question that this study hoped to answer was whether or not
governmental oversight of crime laboratories is statistically and economically justified. The
opinion held by many in the innocence movement is that such oversight is needed however, this
opinion depends on two assumptions that were invalidated by this study:

1. That forensic science malpractice is a leading cause of wrongful convictions.
2. That crime laboratory accreditation fails on its own to provide the structure and
accountability necessary to minimize the occurrences of forensic science malpractice.

Crime Lab Report found only one case involving forensic science malpractice in an accredited
laboratory; however, it was a false exclusion of a rape victim's husband as being the contributor
of semen found on a rape-kit swab and bedding from the victim's home. The error did not
directly incriminate the defendant and appeared to be completely unintentional. Also, the
incident occurred in 1988 when crime laboratory accreditation was in its infancy. 36

In fact, 74% of the 200 overturned convictions occurred before 1990. Since then, accreditation
has grown in scope and complexity. Of all laboratories currently accredited by the American
Society of Crime Laboratory Directors / Laboratory Accreditation Board (ASCLD/LAB), 73%
achieved accreditation for the first time after 1992. 37 While accreditation is not a promise of
perfection, it enforces a kind of professional accountability and transparency that has benefited
all stakeholders of forensic science for over 25 years.

Peter Marone is the Chairman of the Consortium of Forensic Science Organizations (CFSO). On
April 10, 2008, he testified before the United States House Subcommittee on Crime, Terrorism,
and Homeland Security. In his comments, Marone warned of the problems that state oversight
commissions can present;

72

"Many laboratories, if asked, will state that their oversight is provided by the accrediting body
under which they operate. Some people would say that this is the fox guarding the hen house and
there is something inherently wrong with this process. However every other oversight board,
whether it be commercial, medical, legislative or the legal, has oversight bodies which are
comprised of the practitioners in that profession. It makes sense that the most knowledgeable
individuals about a particular topic would come from that discipline. But that does not seem to
meet the current needs. The key to appropriate and proper oversight is to have individuals
representing the stakeholders, but that these individuals must be there for the right reason, to
provide the best possible scientific analysis. There cannot be any room for preconceived
positions and agenda driven positions. Unfortunately, we have seen this occur in some States."

Critics of accreditation, including Peter Neufeld, have argued that accreditation cannot be trusted
because it calls for laboratories to be inspected by other forensic experts - a kind of selfregulation that supposedly fails to establish the oversight necessary to ensure that laboratories are
held to account.

What these critics fail to recognize is what the authors term the "economy of accreditation,"
where a pool of specially trained and monitored assessors have a strong incentive to be brutally
thorough and objective during their inspection of a laboratory. The very reputations of the
assessors, the likelihood that they will be allowed to participate in future inspections, and the
desire to make good use of their valuable time (usually requiring several days away from home
and work) are all compromised by failing to conduct a comprehensive and rigorous inspection. It
is this economy of incentives that ensures the effectiveness of professional peer-based
accreditation, and is why it is used so frequently and successfully in other industries.

But peer-assessors also have another incentive to hold a laboratory accountable for compliance
to accreditation standards. A laboratory that fails to do good work damages the reputation, fairly
or not, of everyone who calls themselves a forensic scientist. No competent and thoughtful
assessor is willing to tolerate that.

73

ABOUT THE AUTHORS
John Collins, B.S., M.A. is the Chief Editor of Crime Lab Report. Jay Jarvis, B.S., M.S. serves
as the Associate Editor. Both are experienced accreditation inspectors and have extensive
management and casework experience in the forensic sciences. They served on the board of
directors of the American Society of Crime Laboratory Directors (ASCLD) from 2005 through
2007 (Note: ASCLD and ASCLD/LAB are separate entities).
John Collins may be reached for questions or comments at crimelabreport @ gtnail. com or
(630) 476-2223. Jay Jarvis may be reached for questions or comments at jay.iarvis@comcast.net
or (706) 331-9971.
WORKS CITED
1

The Innocence Project, Crime Lab Oversight, accessed 9 April 2008, available from

http://www.innocenceproject.org/fix/Crime-Lab-Oversight.php
2

Garrett, Brandon L., "Judging Innocence". Columbia Law Review 100, no. 2 (2007): 177-178.

3

University of Virginia School of Law, "Home Page for Brandon L. Garrett". Accessed 12

February 2008, available from http://www.law.virginia.edu/lawweb/Faculty.nsf/FHPbI/B569
4

The Innocence Project, Browse the Profiles, accessed 9 April 2008, available from

http://www.innocenceproject.org/know/Browse-Prordes.php
5

The Innocence Project, About the Innocence Project, accessed 9 April 2008, available from

http://www.innoccnccprojcct.org/about/
6

Becky Bcaupre & Peter Eisler, "Crime Lab Crisis: Staff, Funding Haven't Kept Up with

Caseload," USA Today, p. 1A, August 20, 1996
7

Flynn McRoberts, et al, "Forensics Under the Microscope: Unproven techniques sway courts,

erode justice," Chicago Tribune, October 17, 2004.
s

CNN, "Reasonable Doubt: Can Crime Labs Be Trusted," Aired January 13, 2005. Transcript

accessed on 9 April 2008. available at
http://transcripts,cnn.com/TRANSCRIPTS/0501/13/pzn.01.html
9

MSNBC, "When Forensics Fail," Aired October 18 and 25, 2007.

10

Solomon Moore, "Exoneration Using DNA Brings Change in Legal System," New York Times,

p. 1 A, October 1,2007.

74

11

Kevin Johnson, "DNA tests fuel urgency to free the innocence," USA Today, p. 1 A, February

19, 2008.
12

Brandon Garrett and Peter Neufeld, "Improper Use of Forensic Science in the First 200 Post-

Conviction DNA Exonerations," National Academy of Sciences, Washington, D.C., September
20, 2007.
13

Garrett, "Judging Innocence," p. 130-131

14

Ibid., 133

15

Garrett & Neufeld, "Improper Use of Forensic Science"

16

United States Senate, "Oversight of the Justice for All Act: Has the Justice Department

Effectively Administered the Bloodsworth and Coverdcll DNA Grant Programs?" Testimony of
Peter Neufeld, January 23, 2008
17

Ibid., Testimony of U.S. Inspector General Glenn A. Fine

18

Morris B. Hoffman, "The Innocence Myth," Wall Street Journal, April 26, 2007

19

Adam Liptak, "Study of Wrongful Convictions Raises Questions Beyond DNA," New York

Times, July 23,2007
20

Garrett, "Judging Innocence," p. 101

21

The Innocence Project, Bruce Godschalk. accessed 9 April 2008, available from

http://www.innocenceproject.org/Content/154.php
22

Wisconsin Innocence Project, Steven Avery, accessed 9 April 2008, available from

http://www.law.wisc.edu/fjr/innocence/avery_summary.htm
23

President's DNA Initiative, Kerry Kotler (Suffolk Countv, New York), accessed 9 April 2008,

available from http://www.dna.gov/case_studies/convicted_exoneratcd/kotler
24

Public Broadcasting System: Frontline, Clyde Charles, accessed 9 April 2008, available from

http ://w ww .pbs. org/ wgbh/pages/frontline/sho ws/b urden/pro files/char les .html
25

Richard H. Walton, Cold Case Homicides: Practical Investigation Techniques (CRC Press,

2006), p. 342
26

United States House of Representatives, "Innocence Protection Act of 2001," House Judiciary

Subcommittee on Crime, Terrorism, and Homeland Security, Testimony by Peter Neufeld
[online] accessed on 9 April 2008, available from http://
www.bejusticcproject.org/press/statements/tcstimony-by-peter-neufeld-at.htm

75

27

The Innocence Project, Antonio Beaver, accessed 9 April 2008, available from

http://www.innocenceprojcct.org/Content/470.php
28

The Innocence Project, James Ochoa. accessed 9 April 2008, available from

http://www.innocenceproject.org/Content/43.php
29

The Innocence Project, Drew Whitley, accessed 9 April 2008, available from

http://www.innoccnccproject.org/Content/292.php
30

The Innocence Project, Roy Brown, accessed 9 April 2008, available from

http://www.innocenceproject.org/Content/425.php
31

Kelly Pyrek, Forensic Science Under Siege, (Academic Press, 2007), p. 27

32

MSNBC, "When Forensics Fail"

33

Ibid.

34

Ibid.

35

The Innocence Project, Ray Krone, accessed 9 April 2008, available from

http://www.innocenceproject.org/Content/196.php
36

The Innocence Project, Brandon Moon

37

The American Society of Crime Laboratory Directors / Laboratory Accreditation Board,

[online] accessed on March 20, 2008, available at http://www.ascldlab.org/dual/aslabdualhistory.html and http://www.ascldlab.org/lcgacy/aslablegacylaboratories.html
38

United States House of Representatives, "Reauthorization and Improvement of DNA

Initiatives of the Justice For All Act of 2004," House Judiciary Subcommittee on Crime,
Terrorism, and Homeland Security, Testimony by Peter M. Marone, accessed on 10 April 2008,
available from http://judiciary.house.gov/media/pdfs/Marone080410.pdf
For more information about data tabulated for this study, please visit the Crime Lab Report
library at www.crimelabreport.com

76

F

77

F

The Commission recommends that the Oklahoma Court of Criminal Appeals submit the following instruction to
the Uniform Jury Instruction Committee for adoption.

SUGGESTED REPLACEMENT OF JURY INSTRUCTION OUJI-CR-9-19
EVIDENCE – EYEWITNESS IDENTIFICATIONS
The State must prove the identity of the defendant as the person who committed the crime
charged beyond a reasonable doubt. If you are not convinced beyond a reasonable doubt that the
defendant was the person who committed the crime charged, you must find the defendant not
guilty.
Identification testimony is, in essence, the expression of an opinion or a belief by the witness. In
judging the identification testimony of any witness, you should carefully consider, at least, the
following factors:
1. Whether the witness had the capacity and an adequate opportunity to observe the
offender considering such things as how long or short a time was available, how far away or
close the witness was, whether the offender used a disguise, how good were lighting conditions,
the level of stress upon the witness, and whether the witness had previously seen or known the
person;
2. Whether the identification made by the witness after the offense was based on his own
recollection and whether the witness is positive in the identification; To answer this question,
you may consider such things as his prior description of the offender and whether his description
was specific or general in nature; You may also consider the circumstances surrounding the
identification made by the witness such as, was it made by pointing out the defendant from a
group of similar individuals or from a presentation of the defendant alone to the witness; You
should also consider whether occurrences between the time of the offense and the identification
made by the witness affected the witness’s recollection of the offender and the witness’s level of
confidence in the identification;
3. Whether the witness has failed to identify the defendant on a prior opportunity or has
the witness identified someone else as the person who committed the offense charged; and
4. Whether the witness’s prior description of the person/thing was accurate.
Eyewitness identifications are to be scrutinized with extreme care. The possibility of
human error or mistake and the probable likeness or similarity of objects and persons are
circumstances that you must consider in weighing testimony as to identity. If, after examining
all of the evidence, you have a reasonable doubt as to whether the defendant was the individual
who committed the crime charged, you must find the defendant not guilty.

Authority:
OUJI-CR-9-19 with modifications;
Federal Jury Practice and Instructions, Criminal, Sixth Edition, O’Malley, Grenig, and Lee,
Section 14.10, Eyewitness Identification of the Defendant, with modifications;
Perry v. New Hampshire, 132 S.Ct. 716, 729, 181 L.Ed.2d 694 (2012) (“Eyewitness-specific jury
instructions, which many federal and state courts have adopted, likewise warn the jury to take
care in appraising identification evidence.”)
78

State of New Jersey v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011).

79

G

80

G

PROPOSED DNA STATUTE
AN ACT CONCERNING ACCESS TO POST-CONVICTION DNA TESTING

Section 1. Title.
This Act shall be known and may be cited as the Post-Conviction DNA Act.
Section 2. Legislative Purpose.
The Legislature finds that:
(a)

emerging DNA testing technologies can enhance the quality of justice;

(b)

the scientifically reliable results of DNA testing provide the certainty and finality
that bolster the public’s trust in Oklahoma’s criminal justice system; and

(c)

in addition to the wrongfully convicted and their families, the victims of crime,
law enforcement, prosecutors, courts and the public are harmed whenever
individuals who are guilty of crimes elude justice while innocent individuals are
imprisoned for crimes they did not commit.

THEREFORE, Oklahoma must enhance its procedures for considering post-conviction
DNA testing so that all credible claims of innocence based on newly discovered evidence can be
properly evaluated.
Section 3. Definitions.
As used in this Act:
(a)

“DNA” means deoxyribonucleic acid;

(b)

“biological material” means the contents of a sexual assault evidence collection
kit as well as any item that contains or includes blood, semen, hair, saliva, skin
tissue, fingernail scrapings or parings, bone, bodily fluids, or other identifiable
biological material that was collected as part of the criminal investigation or may
reasonably be used to incriminate or exculpate any person for the offense and that
may be suitable for forensic DNA testing. This definition applies whether the
material was catalogued separately (e.g. on a swab or slide) or is present on other
evidence (e.g. on bedding or drinking cups); and

(c)

“document” or “documents” means any tangible thing upon which any
expression, communication or representation has been recorded by any means,
and includes any writing (including electronic), recording, drawing, map, graph or

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chart, photograph, and other data compilation in the actual or constructive
possession, custody, care or control of the government, which pertains directly or
indirectly to any matter relevant to the issues in this action.
(d)

“guardian of a convicted person” means a person who is the legal guardian of the
convicted person, whether the legal relationship exists because of the age of the
convicted person or because of the physical or mental incompetency of the
convicted person.

Section 4. Motion for Post-Conviction DNA Testing
A.

Notwithstanding any other provision of law concerning post-conviction relief, a

person convicted of a crime who asserts he did not commit that crime may at any time file a
motion in the sentencing court requesting forensic DNA testing of any biological material
secured in the investigation or prosecution attendant to the challenged conviction. Persons
eligible for testing shall include any and all of the following:
(1)

persons currently incarcerated; civilly committed; on parole or probation; or
subject to sex offender registration;

(2)

persons convicted on a plea of not guilty, guilty or nolo contendere;

(3)

persons deemed to have provided a confession or admission related to the crime,
either before or after conviction; and

(4)

persons who have discharged their sentences.

B.

A convicted person may request forensic DNA testing of any biological material

secured in the investigation or prosecution attendant to his conviction that:
(1)

was not previously subjected to DNA testing; or

(2)

although previously subjected to DNA testing, can be subjected to testing with
newer testing techniques that provide a reasonable likelihood of results that are
more accurate and probative than the results of the previous test.

C.

The motion shall be accompanied by an affidavit sworn to by the convicted

person containing Statements of fact in support of the motion.
D.

On receipt of the motion, the sentencing court shall provide the attorney

representing the State with a copy of the motion and require the attorney representing the State to
file a response within sixty (60) days of receipt of service, or longer upon good cause shown.

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The response shall include an inventory of all the evidence related to the case, including the
custodian(s) of such evidence.
E.

A guardian of a convicted person may submit motions for the convicted person

under this act and is entitled to counsel otherwise provided to a convicted person under this act.
Section 5. Counsel.
A.

The sentencing court may appoint counsel for an indigent convicted person at any

time during proceedings under this Act.
B.

The sentencing court, in its discretion, may refer pro se requests for DNA testing

to qualified parties willing to accept the referrals for further review, without appointing the
parties as counsel at that time. Such qualified parties may include, but shall not be limited to,
indigent defense organizations or clinical legal education programs. If the results of the DNA
testing are favorable to the convicted person, then the court shall appoint counsel.
Section 6. Hearing on Motion.
A.

After the filing of the motion and the response, the sentencing court shall hold a

hearing to determine whether DNA forensic testing will be ordered. A court may order DNA
testing only if it finds:
(1)

a reasonable probability that the petitioner would not have been convicted if
favorable results had been obtained through DNA testing at the time of the
original prosecution; and

(2)

the application for testing is made to demonstrate the innocence of the convicted
person and is not made to unreasonably delay the execution of sentence or the
administration of justice; and

(3)

one or more of the item(s) of evidence the convicted person seeks to have tested
still exists; and

(4)

the evidence to be tested was secured in relation to the challenged conviction and
either was not previously subject to DNA testing or, if it was previously DNA
tested, can be subjected to additional DNA testing that provides a reasonable
likelihood of more probative results; and

(5)

the chain of custody of the evidence to be tested is sufficient to establish that it
has not been substituted, tampered with, replaced or altered in any material

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respect, or, if the chain of custody does not establish the integrity of the evidence,
the testing itself has the potential to establish the integrity of the evidence.

For

the purposes of this Act, evidence that has been in the custody of law
enforcement, other government officials or a public or private hospital shall be
presumed to satisfy the chain-of-custody requirement of this subsection, absent
specific evidence of material tampering, replacement or alteration.
B.

If, at the close of the hearing, the court orders DNA forensic testing to be

conducted, the court by written Order shall require the attorney representing the State to effect
the transfer of the item(s) of evidence to be tested along with any documents, logs or reports
relating to all items of physical evidence collected in connection with the case to the designated
laboratory or laboratories within thirty (30) days. In addition, the court shall require the attorney
representing the State to assist the movant in locating any evidence the State contends was lost or
destroyed or the State contends is in the possession of any other government entity or a public or
private hospital, laboratory or other facility
C.

If the prosecution or the movant previously conducted any DNA analysis or other

biological-evidence testing without knowledge of the other party, such testing shall be revealed
in the motion for testing or response.
D.

The court may order DNA testing to be performed by the Oklahoma State Bureau

of Investigation (OSBI), an accredited laboratory operating under contract with the OSBI, or
another accredited laboratory, as defined in Section 150.37 of Title 74 of the Oklahoma Statutes.
If the OSBI or an accredited laboratory under contract with the OSBI conducts the testing, the
State shall bear the costs of the testing. If another laboratory conducts the testing because neither
the OSBI nor an accredited laboratory under contract with the OSBI has the ability or the
resources to conduct the type of DNA testing to be performed, or if an accredited laboratory that
is neither the OSBI nor under contract with the OSBI is chosen for some other reason, then the
court may require either the movant or the State to pay for the testing as the interests of justice
require.
E.

The results of any post-conviction DNA testing conducted under this Act,

including any laboratory reports prepared in connection with that testing, and in the discretion of

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the court, the underlying data or other laboratory documents, shall be disclosed to the
prosecution, the movant and the court.
F.

If an accredited laboratory other than the OSBI or one under contract with the

OSBI performs the DNA testing, the court shall impose reasonable conditions on the testing to
protect the parties’ interests in the integrity of the evidence and the testing process and to
preserve the evidence to the greatest extent possible.

Section 7. Procedure After Testing.
A.

If the results of the forensic DNA testing conducted under this act are favorable to

the movant, the court shall schedule a hearing to determine the appropriate relief to be granted.
Based on the results of the testing and any other evidence presented at the hearing, the court shall
thereafter enter any order that serves the interests of justice, including any of the following:
(1)

an order setting aside or vacating the movant’s judgment of conviction, judgment
of not guilty by reason of mental disease or defect or adjudication of delinquency;

(2)

an order granting the movant a new trial or fact-finding hearing;

(3)

an order granting the movant a new commitment hearing or dispositional hearing;

(4)

an order discharging the movant from custody;

(5)

an order specifying the disposition of any evidence that remains after the
completion of the testing;

(6)

an order granting the movant additional discovery on matters related to DNA test
results on the conviction or sentence under attack, including but not limited to,
documents pertaining to the original criminal investigation or the identities of
other suspects; and

(7)

an order directing the State to place any unidentified DNA profile(s) obtained
from post-conviction DNA testing into Oklahoma and/or federal databases as
allowed within applicable State and federal laws.

B.

If the results of the tests are not favorable to the movant, the court:

(1)

shall dismiss the Motion; and

(2)

may make such further orders as it deems appropriate, including those that:

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(a) provide that the parole board or probation department be notified of the test
results; and
(b) request that the movant’s DNA profile be added to the Oklahoma convicted
offender database as allowed by Oklahoma law.
Section 8. Consent.
A.

Nothing in this act shall prohibit a convicted person and the State from consenting

to and conducting post-conviction DNA testing by agreement of the parties, without filing a
motion for post-conviction DNA testing under this act.
B.

Notwithstanding any other provision of law governing post-conviction relief, if

DNA test results are obtained under testing conducted upon consent of the parties that are
favorable to the convicted person, the convicted person may file and the court shall adjudicate a
motion for post-conviction relief based on the DNA test results under Section 7 of this act.
Section 9. Appeal.
An appeal under this Act may be taken in the same manner as any other appeal.
Section 10. Effective Date.
This Act shall take effect on _____, 2013.

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OKLAHOMA INNOCENCE COLLABORATION ACT

ENGROSSED HOUSE
BILL NO. 2652

By:

Denney, Billy, McDaniel (Jeanie),
Shelton and Nollan of the House
and
Halligan of the Senate

An Act relating to criminal procedure; providing short title; creating the
Oklahoma Innocence Collaboration Program; stating duration of program;
defining terms; creating program within the Oklahoma State Bureau of
Investigation; authorizing Bureau to collaborate with public and private
entities; stating purpose of program; authorizing Bureau to accept or
decline requests for forensic testing; providing measures for testing
physical evidence; directing law enforcement agencies to provide certain
records; providing for the confidentiality of records; exempting records
from the Oklahoma Open Records Act; providing compensation for the
search and copy of records; providing for codification; and providing an
effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION Main Document Only..

NEW LAW

A new section of law to be codified

in the Oklahoma Statutes as Section 1373 of Title 22, unless there is created a duplication in
numbering, reads as follows:
A. Sections 1 through 3 of this act shall be known and may be cited as the "Oklahoma
Innocence Collaboration Act”.
B. There is hereby created the Oklahoma Innocence Collaboration Program to continue
until July 1, 2018.

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SECTION Main Document Only..

NEW LAW

A new section of law to be codified

in the Oklahoma Statutes as Section 1373.1 of Title 22, unless there is created a duplication in
numbering, reads as follows:
As used in this section:
1.

“Collaboration project participants” means a public or private higher education

institution or agency within Oklahoma deemed appropriate by the Oklahoma State Bureau of
Investigation to investigate, consult and screen scientific evidence that may conclusively prove
that a person convicted of and presently incarcerated on a felony offense upon which the forensic
testing is sought is factually innocent;
2. “Forensic laboratory” means a laboratory operated by the Oklahoma State Bureau of
Investigation, the Federal Bureau of Investigation, or a privately owned laboratory whose experts
perform forensic tests and provide expert opinion testimony in a court of law;
3. “Forensic testing” means a medical, chemical, toxicological, ballistics, or other expert
examination or test performed on physical evidence, including deoxyribonucleic acid (DNA)
evidence to determine the association of evidence to a crime;
4. “Physical evidence” means a tangible object or substance related to a crime; and
5. “Law enforcement agency” means a state, local or municipal agency that arrests,
detains or investigates criminal cases.
SECTION Main Document Only..

NEW LAW

A new section of law to be codified

in the Oklahoma Statutes as Section 1373.2 of Title 22, unless there is created a duplication in
numbering, reads as follows:
A. The Oklahoma Innocence Collaboration Program shall be created within the Oklahoma
State Bureau of Investigation. The Bureau is hereby authorized to collaborate with appropriate

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public or private higher education institutions, law enforcement agencies, and forensic
laboratories to investigate, consult and screen scientific evidence that may conclusively prove
that a person convicted of and presently incarcerated on a felony offense upon which the forensic
testing is sought is factually innocent. Factual innocence requires the defendant to establish that
no reasonable jury would have found the defendant guilty in light of the results of the new
evidence.
B. Upon request of a collaborative partner, the Oklahoma State Bureau of Investigation is
authorized to perform the necessary forensic testing of physical and biological evidence
requested by collaboration project participants to determine whether such evidence of factual
innocence exists. The Bureau may decline for any reason, at the discretion of the Bureau, a
request to perform the forensic testing.
C. Any type of forensic testing available to the Oklahoma State Bureau of Investigation
may be used by the Oklahoma Innocence Collaboration Program to accomplish the purposes of
this act. When forensic analysis will consume the physical evidence collected, the following
measures shall be taken:
1. Samples must be of sufficient quantity to allow testing by both the prosecution and the
defense;
2. Neither the prosecution nor defense shall consume the entire sample in testing in the
absence of a court order or agreement by both parties allowing the sample to be entirely
consumed in testing;
3. When permissible, deoxyribonucleic acid (DNA) profiles obtained as a result of testing
performed pursuant to this act shall be entered into the OSBI Combined DNA Index System

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(CODIS) Database as established pursuant to the provisions of Section 150.27a of Title 74 of the
Oklahoma Statutes; and
4. Nothing in this act shall require any person other than the person seeking assistance of
the Oklahoma Innocence Collaboration Program to provide a sample from his or her body for
purposes of forensic testing.
D. All municipal, county, and state law enforcement agencies or the Office of the Chief
Medical Examiner shall provide copies to collaboration project participants of the Oklahoma
Innocence Collaboration Program of forensic laboratory examination records or other law
enforcement investigative records regarding cases accepted for investigation by the Oklahoma
Innocence Collaboration Program. The records shall be confidential and shall not be subject to
the provisions of the Oklahoma Open Records Act.

The records shall be used only for

investigating, screening, and presenting claims of factual innocence. The collaboration project
participants of the Oklahoma Innocence Collaboration Program requesting such records shall
compensate the agency that provides the records in accordance with the fees set forth in the
Oklahoma Open Records Act for any search and copy costs.
SECTION Main Document Only.. This act shall become effective November 1, 2012.
Passed the House of Representatives the 7th day of March, 2012.
Presiding Officer of the House of Representatives
Passed the Senate the ____ day of __________, 2012.

Presiding Officer of the Senate

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PROPOSED AMENDMENT TO OUJI-CR 9-43A (amended language is in bold)

1.

EVIDENCE - JAILHOUSE INFORMANT TESTIMONY

The testimony of an informer who provides evidence against a defendant must be examined and
weighed by you with greater care than the testimony of an ordinary witness. Whether the
informer's testimony has been affected by interest or prejudice against the defendant is for you to
determine. In making that determination, you should consider:
(1) whether the witness has received, been offered, or reasonably expects anything
(including pay, immunity from prosecution, leniency in prosecution, personal
advantage, or vindication) in exchange for testimony;
(2) any other case in which the informant testified or offered statements against an
individual but was not called, and whether the statements were admitted in the case,
and whether the informant received any deal, promise, inducement, or benefit in
exchange for that testimony or statement;
(3) whether the informant has ever changed his or her testimony;
(4) the criminal history of the informant; and
(5) any other evidence relevant to the informer's credibility.

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PROPOSED STATUTORY LANGUAGE (proposed language is in bold):

Title 22, Section 2002:

A. Disclosure of Evidence by the State.

1. Upon request of the defense, the state shall be required to disclose the following:

a. the names and addresses of witnesses which the state intends to call at trial, together with their
relevant, written or recorded statement, if any, or if none, significant summaries of any oral
statement,
b. law enforcement reports made in connection with the particular case,
c. any written or recorded statements and the substance of any oral statements made by the
accused or made by a codefendant,
d. any reports or statements made by experts in connection with the particular case, including
results of physical or mental examinations and of scientific tests, experiments, or comparisons,
e. any books, papers, documents, photographs, tangible objects, buildings or places which the
prosecuting attorney intends to use in the hearing or trial or which were obtained from or belong
to the accused,
f. any record of prior criminal convictions of the defendant, or of any codefendant, and
g. Oklahoma State Bureau of Investigation (OSBI) rap sheet/records check on any witness listed
by the state or the defense as a witness who will testify at trial, as well as any convictions of any
witness revealed through additional record checks if the defense has furnished social security
numbers or date of birth for their witnesses, except OSBI rap sheet/record checks shall not
provide date of birth, social security number, home phone number or address.

2. The state shall provide the defendant any evidence favorable or potentially favorable to the
defendant if such evidence is material to either guilt or punishment. A written record shall be
kept by the state of all evidence favorable to the defendant which is provided.

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3. The prosecuting attorney's obligations under this standard extend to:

a. material and information in the possession or control of members of the prosecutor's staff,
b. any information in the possession of law enforcement agencies that regularly report to the
prosecutor of which the prosecutor should reasonably know, and
c. any information in the possession of law enforcement agencies who have reported to the
prosecutor with reference to the particular case of which the prosecutor should reasonably know.

4.

In the event the state intends to present testimony of a jailhouse informant, the state

shall provide the defendant, in writing or recorded statement:
a. the complete criminal history of the informant;
b. any deal, promise, inducement, or benefit that the offering party has made or may make
in the future to the informant;
c. the specific statements made by the defendant and the time, place, and manner of their
disclosure;
d. all other cases in which the informant testified or offered statements against an
individual but was not called, whether the statements were admitted in the case, and
whether the informant received any deal, promise, inducement, or benefit in exchange for
or subsequent to that testimony or statement;
e. whether at any time the informant recanted that testimony or statement, and if so, a
transcript or copy of such recantation; and
f. any other information relevant to the informant’s credibility.
If the informant’s testimony is discovered within ten days or during trial, defendant should
be allowed such time to review such information as the court deems necessary and
reasonable.

B. Disclosure of Evidence by the Defendant.

1. Upon request of the state, the defense shall be required to disclose the following:

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a. the names and addresses of witnesses which the defense intends to call at trial, together with
their relevant, written or recorded statement, if any, or if none, significant summaries of any oral
statement,
b. the name and address of any witness, other than the defendant, who will be called to show that
the defendant was not present at the time and place specified in the information or indictment,
together with the witness' statement to that fact,
c. the names and addresses of any witness the defendant will call, other than himself, for
testimony relating to any mental disease, mental defect, or other condition bearing upon his
mental state at the time the offense was allegedly committed, together with the witness' statement
of that fact, if the statement is redacted by the court to preclude disclosure of privileged
communication.

2. A statement filed under subparagraph a, b or c of paragraph 1 of subsection A or B of this
section is not admissible in evidence at trial. Information obtained as a result of a statement filed
under subsection A or B of this section is not admissible in evidence at trial except to refute the
testimony of a witness whose identity subsection A of this section requires to be disclosed.

3. Upon the prosecuting attorney's request after the time set by the court, the defendant shall
allow him access at any reasonable times and in any reasonable manner to inspect, photograph,
copy, or have reasonable tests made upon any book, paper, document, photograph, or tangible
object which is within the defendant's possession or control and which:

a. the defendant intends to offer in evidence, except to the extent that it contains any
communication of the defendant, or
b. is a report or statement as to a physical or mental examination or scientific test or experiment
made in connection with the particular case prepared by and relating to the anticipated testimony
of a person whom the defendant intends to call as a witness, provided the report or statement is
redacted by the court to preclude disclosure of privileged communication.

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C. Continuing Duty to Disclose.

If, prior to or during trial, a party discovers additional evidence or material previously requested
or ordered, which is subject to discovery or inspection under the Oklahoma Criminal Discovery
Code, such party shall promptly notify the other party, the attorney of the other party, or the
court of the existence of the additional evidence or material.

D. Time of Discovery.

Motions for discovery may be made at the time of the district court arraignment or thereafter;
provided that requests for police reports may be made subject to the provisions of Section 258 of
this title. However, a request pursuant to Section 258 of this title shall be subject to the discretion
of the district attorney. All issues relating to discovery, except as otherwise provided, will be
completed at least ten (10) days prior to trial. The court may specify the time, place and manner
of making the discovery and may prescribe such terms and conditions as are just.

E. Regulation of Discovery.

1. Protective and Modifying Orders. Upon motion of the state or defendant, the court may
at any time order that specified disclosures be restricted, or make any other protective
order. If the court enters an order restricting specified disclosures, the entire text of the
material restricted shall be sealed and preserved in the records of the court to be made
available to the appellate court in the event of an appeal.

2. Failure to Comply with a Request. If at any time during the course of the proceedings
it is brought to the attention of the court that a party has failed to comply with this rule,
the court may order such party to permit the discovery or inspection, grant continuance,
or prohibit the party from introducing evidence not disclosed, or it may enter such other
order as it deems just under the circumstances.

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3. The discovery order shall not include discovery of legal work product of either
attorney which is deemed to include legal research or those portions of records,
correspondence, reports, or memoranda which are only the opinions, theories, or
conclusions of the attorney or the attorney's legal staff.

F. Reasonable cost of copying, duplicating, videotaping, developing or any other cost associated
with this Code for items requested shall be paid by the party so requesting; however, any item
which was obtained from the defendant by the state of which copies are requested by the
defendant shall be paid by the state. Provided, if the court determines the defendant is indigent
and without funds to pay the cost of reproduction of the required items, the cost shall be paid by
the Indigent Defender System, unless otherwise provided by law.

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PROPOSED STATUTORY LANGUAGE

Qualifications Required for Counsel for Defendants in Capital Cases

A.

Generally. Every attorney representing a defendant charged with crimes referenced in
21 O.S. § 13.1 shall provide competent representation as required by Rule 1.1 of the
Oklahoma Rules of Professional Conduct.

Every attorney representing a defendant

charged with crimes referenced in 21 O.S. § 13.1 shall have the following:

1.

Demonstrated commitment to providing high quality legal representation in the
defense of crimes referenced in 21 O.S. § 13.1;

2.

Substantial knowledge and understanding of the relevant state, federal, and
international law, both procedural and substantive, governing crimes referenced in
21 O.S. § 13.1;

3.

Skill in the management and conduct of complex negotiations and litigation;

4.

Skill in legal research, analysis, and the drafting of litigation documents;

5.

Skill in oral advocacy;

6.

Skill in the use of expert witnesses and familiarity with common areas of forensic
investigation, including fingerprints, ballistics, arson, forensic pathology, and
DNA evidence;

7.

Skill in the procedural requirements for the introduction of expert testimony and
forensic evidence, including fingerprints, ballistics, arson, forensic pathology, and
DNA;

8.

Skill in the investigation, preparation, and presentation of evidence bearing upon
mental status;

9.

Skill in the investigation, preparation, and presentation of mitigating evidence;
and

10.

Skill in the elements of trial advocacy, such as jury selection, cross-examination
of witnesses, and opening and closing statements.

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B.

In addition, every attorney representing a capital defendant shall have attended
and successfully completed, within two years prior to the initial appointment, at
least twelve hours of relevant training or educational programs in the area of
capital defense litigation.

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MINORITY REPORT
The primary responsibility of any prosecutor or prosecutors’ office is to seek justice. See
Standard 1-1.1 of the National District Attorneys Association, National Prosecution Standards
(3d ed. 2009). This duty includes ensuring the correct offender is convicted. To that end, the
District Attorneys Council (DAC) and the Office of Attorney General (AG) wholly support the
ultimate goal of the Justice Commission; however, we respectfully dissent to the Commission’s
recommendations with regard to False Confessions.
Although the DAC and the AG concur the best practice is that all custodial interrogations
be videotaped, such agencies strongly object to creating a presumption of inadmissibility when
such interrogations are not recorded. A presumption of inadmissibility is the equivalent of a
presumption of coercion or involuntariness. The fact that the police did not record a confession
does not mean that the confession was coerced. Such a presumption of coercion demonstrates a
lack of respect and confidence in our State’s hardworking and dedicated law enforcement
officers.
Further, such a presumption of involuntariness is inconsistent with prevailing authority.
Under existing law, a statement is voluntary “only when ‘it is the product of an essentially free
and unconstrained choice by its maker.’” Young v. State, 191 P.3d 601, 607 (Okla. Crim. App.
2008) (quoting Young v. State, 670 P.2d 591, 594 (Okla. Crim. App. 1983), citing Schneckloth v.
Bustamonte, 412 U.S. 218 (1973)). Currently, when a statement is obtained during an
interrogation the accused has the right to request a hearing, known as a Jackson v. Denno
hearing, to determine the voluntariness and thus, the admissibility of such statement. The burden
of proving that the statement is voluntary rests with the prosecution. The prosecution must prove,
by a preponderance of the evidence, that the challenged statement was voluntary. See Young v.
State, 191 P.3d 601, 607 (Okla. Crim. App. 2008); Knighton v. State, 912 P.2d 878, 887 (Okla.
Crim. App. 1996); Hawkins v. State, 891 P.2d 586, 594 (Okla. Crim. App. 1994). In making its
determination of admissibility, a trial court must base its conclusion upon the totality of the
circumstances, without giving presumptive weight to any single factor, such as a failure to
record.
Additionally, a Jackson v. Denno hearing is not required unless the voluntariness of the
statement is challenged by the accused Lambert v. State, 984 P.2d 221, 238 (Okla. Crim. App.
1999). If a presumption of inadmissibility exists, a Jackson v. Denno hearing will need to be held
in each and every case in which a statement from an accused is offered as evidence. Further, if a
hearing is not held and the issue of admissibility/voluntariness is raised on appeal, the
presumption will exist with no ability to overcome the presumption. This could result in the
needless reversal of many just and proper convictions.
The better course of action is to remain consistent with current practice which places the
burden on the prosecution to prove the admissibility of a statement, if challenged. A presumption
of inadmissibility is simply disrespectful, inconsistent with prevailing authority, and
unnecessary.

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CHAIRMAN’S COMMENTS IN RESPONSE TO MINORITY REPORT
There was considerable discussion in several Commission meetings about the language in
this section. While there was unanimity or near unanimity that interrogations for serious
offenses should be video recorded, there was a divergence of opinion as to what the remedy
should be if they were not, and as to what exceptions there should be to the rule.
We discussed whether there should be a presumption of involuntariness if the statement
is not video recorded, but that did not seem to cover the range of problems associated with false
confessions. Ultimately a majority of the Commission opted for the language complained of in
the Minority Report; that there should be a presumption of inadmissibility, with a range of
factors that would rebut that presumption.
The majority felt that this should be no different than a failure to give a Miranda
warning. Failure to “mirandize” a suspect typically renders any statement inadmissible. That
presumption can be overcome by the prosecution by citing circumstances to negate that
presumption: e.g., that the statement was spontaneous and not the product of questioning; that
the suspect was not in custody. Prosecutors deal with the same situation when there are
warrantless searches. The rule is that any evidence obtained would be inadmissible unless the
prosecution can cite circumstances to negate the presumption: e.g., that the search was with
consent; that there was an imminent threat of bodily harm; that evidence was being destroyed.
Perhaps the most common example that prosecutors deal with every day is hearsay. The
rule says hearsay (a statement from someone other than the declarant, offered to prove the truth
of the matter contained therein) is not admissible, but there are numerous exceptions to the rule
and a simple matter to introduce the evidence if an exception can be shown.
It was the feeling of the Commission that the POTENTIAL for exclusion of the
statements will provide a great impetus for the law enforcement community to adopt the
recommendation. It was also the strong feeling of the Commission, shared even by the drafters
of this Minority Report, that video recording was the better practice and would, if it became the
general practice, reduce the number of false confessions. By accomplishing that, we increase the
efficacy of law enforcement and the arrest and prosecution of the truly guilty.

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