Timothy Cole Advisory Panel on Wrongful Convictions
Membership
The Honorable John Whitmire
Chair, Criminal Justice Committee

The Honorable Jeff Wentworth
Chair, Jurisprudence Committee

The Honorable Jim McReynolds
Chair, Corrections Committee

The Honorable Pete Gallego
Chair, Criminal Jurisprudence

Ms. Kathryn M. Kase
Texas Criminal Defense Lawyers Association

The Honorable Barry Macha
President, Texas District and County
Attorneys Association

The Honorable Barbara Hervey
Judge, Court of Criminal Appeals

Prof. Sandra Guerra Thompson
University of Houston Law Center

Ms. Mary Anne Wiley
Deputy General Counsel
Office of the Governor

Mr. James D. Bethke
Director, Task Force on Indigent Defense

Chief James McLaughlin
Executive Director and General Counsel
Texas Police Chiefs Association

i|Page
Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

Timothy Cole Advisory Panel on Wrongful Convictions
Summary Panel Recommendation
The Panel recommends that the State of Texas should:
Eyewitness Identification Procedures:
1. Require Bill Blackwood Law Enforcement Management Institute of Texas (LEMIT) to work
with scientific experts in eyewitness memory research and law enforcement agencies to develop,
adopt, disseminate to all law enforcement agencies, and annually review a model policy and
training materials regarding the administration of photo and live lineups. That model policy
should comport with science in the areas of cautionary instructions, filler selection, double-blind
administration, documentation of identification procedures, and other procedures or best
practices supported by credible research.
2. Require all law enforcement agencies to adopt eyewitness identification procedures that comply
with the model policy promulgated by LEMIT.
3. Integrate training on eyewitness identification procedures into the required curricula of the
LEMIT and the Texas Commission on Law Enforcement Standards and Education (TCLEOSE).
4. Permit evidence of compliance or noncompliance with the model policy to be admissible in
court.
5. Allow law enforcement agencies discretion on the adoption of sequential procedures.
Recording Custodial Interrogations:
6. Adopt a mandatory electronic recording policy, from delivery of Miranda warnings to the end,
for custodial interrogations in certain felony crimes. The policy should include a list of
exceptions to recording and the judicial discretion to issue a jury instruction in the case of an
unexcused failure to record.
Discovery Procedures:
7. Adopt a discovery policy that is mandatory, automatic, and reciprocal, and requires either
electronic access to or photocopies of materials subject to discovery.
Post-Conviction Proceedings:
8. Amend the Chapter 64 motion for post-conviction DNA testing to allow testing of any
previously untested biological evidence, regardless of the reason the evidence was not previously
tested, or evidence previously tested using older, less accurate methods.
9. Amend the Chapter 11 writs of habeas corpus to include a writ based on changing scientific
evidence.
Innocence Commission:
10. Formalize the current work of the innocence projects that receive state funding to provide further
detail in the projects’ annual reports and distribute those reports to the Governor, Lieutenant
Governor, Speaker of the House, and Chairs of the Senate Jurisprudence, House Corrections,
House Criminal Jurisprudence and Senate Criminal Justice Committees. Report input should be
solicited from other innocence projects, interested bar associations, judicial entities, law
enforcement agencies, prosecutor associations, and advocacy organizations.
11. Provide an FTE for the Task Force using the current appropriation or other grant funding to
administer these responsibilities, and contracts between the innocence projects and the Task
Force on Indigent Defense should be amended to reflect the new administrator and additional
responsibilities.
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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

Letter from Ruby Cole Session

Dear Panel Members:
Thank you for your hard work you did this year. Your task was not any easy undertaking, yet
you have brought together a collaborative consensus from all three Branches of our State
Government. We trust that the next Legislature will consider and act promptly upon your
recommendations for the Governor to sign into Law. There is no “perfect system” but we must
always rise above our differences to have a meeting of the minds while we seek liberty and
justice for all.
For our great loss there are now great gains in the justice system. We are forever grateful to the
Innocence Project of Texas and all of the Law School Projects that continue their commitment to
freeing the incarcerated innocent.
My son Timothy said “I still believed in the justice system even though it does not believe in
me”. The creation of this panel by Governor Perry has renewed a once dimmed belief in our
Criminal Justice System. While there is much more work to be done in the coming years, we are
pleased that Texas is now in pursuit of “Equal Justice Under Law”.
Sincerely,

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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

Letter from Presiding Officer
Texans value honor, integrity, and fairness. With the passage of House Bill 498,
the members of the 81st Texas legislature and Governor Perry showed their commitment to those
values and our obligation to strengthen the Texas criminal justice system. It has been an honor
and privilege to serve as the presiding officer of this distinguished panel of experts and
collaborators from the across the state. The intellect and skill of the panelists required only
facilitation, as the knowledge and experience present at each meeting carried the day.
The State of Texas is obviously concerned about wrongful convictions. Justice must be
meted out fairly or it loses all meaning. Incarcerating the innocent allows the guilty to continue
to ignore our laws and imperil our safety. Our interest lies in serving justice fairly and
effectively to ensure the integrity of the rule of law.
Our integrity supersedes political differences. Our bipartisan panel through due diligence
and deliberation reached consensus on a number of key areas designed to prevent, or at least
lessen, the likelihood of wrongful convictions in Texas courts. These recommendations are the
product of consensus and culled out of lessons learned from direct experience throughout the
state and country.
Although I know some members would have preferred the recommendations to go
further, the progress signified by this report will strengthen the system. Every issue addressed by
our panel was discussed and debated during the 81st Legislative Session with time, not politics,
creating the main obstacle to passage. This work was a necessary continuation of those efforts
and we do not anticipate facing consequential opposition next session.
For those interested in additional information on the topic of wrongful convictions, I
encourage you to read the research volume of this report edited by Jennifer Willyard, Ph.D.
Program Specialist, Task Force on Indigent Defense. In addition, watch for American Justice in
the Age of Innocence (forthcoming iUniverse Publishing 2010). This publication was edited by
Panel member Prof. Sandra Guerra Thompson and two of her students and addresses many areas
related to wrongful conviction. I was fortunate to deliver a presentation to Prof. Thompson’s
class and look forward to the publication of this collection of articles.
Robert Kennedy believed “every community gets the kind of law enforcement it insists
on.” There is no question every Texas citizen has suffered harm from the incarceration of the
actually innocent. Neither studies, academic or anecdotal, nor debate, spirited or otherwise, are
necessary to reach this conclusion. The time for insistence to act is now.

James D. Bethke
Presiding Officer, Timothy Cole Advisory Panel on Wrongful Convictions

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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

Acknowledgements
The Timothy Cole Advisory Panel on Wrongful Convictions expresses sincere thanks and
gratitude to the members of the Cole family, in particular Ms. Ruby Cole Session and Mr. Cory
Session, for their grace, courage, and dedication to a cause for which they did not volunteer.
The Panel also thanks Mr. Steven Phillips and Mr. Christopher Scott for sharing the stories of
their wrongful convictions and exonerations with the membership. Like Tim, your stories help to
remind everyone that wrongful conviction is not a faceless injustice.
Gratitude on behalf of the Panel is extended to Governor Rick Perry for signing HB 498 into law.
Additional thanks to the House authors, Representatives Ruth Jones McClendon, Senfronia
Thompson, Pete Gallego, Terri Hodge, and Paula Pierson; House co-authors, Representatives Carol
Alvarado, Lon Burnam, Norma Chávez, Roland Gutierrez, Carol Kent, Eddie Lucio III, and
Armando Walle. Special thanks are offered to Senate sponsor Rodney Ellis, Chief of Staff Brandon
Dudley, and Senior Policy Advisor Scott Ehlers for their continued commitment to the issue of
wrongful convictions in Texas and their support of the Panel’s process.
To just say thanks to Dr. Jennifer Willyard, who served as lead staff to all committees and took
the lead on drafting this publication, would not be just. Her incredible talents are reflected
throughout both volumes of this work, and the panel respectively acknowledges and appreciates the
quality of her contribution to this effort.
The Panel also acknowledges the following for their invaluable contributions:
Adrianna Bernal, former General
Counsel to House Committee on
Criminal Jurisprudence
Kaylyn Betts, Program Supervisor,
Texas Court of Criminal Appeals
Jeff Blackburn, Chief Counsel,
Innocence Project of Texas
Miles Brissette, Tarrant County ADA
Tiffany Burkes, Tarrant County ADA
Andrew Cates, Chief of Staff to Rep.
Pete Gallego
Center for American and International
Law
Larance Coleman, Policy Director to
Senator John Whitmire
Edwin Colfax, Texas Policy Director,
The Justice Project
Tiffany Dowling, Staff Attorney, Texas
Center for Actual Innocence
Shannon Edmonds, Director of
Governmental Relations, Texas
District and County Attorneys
Association
Heather Fleming, Chief of Staff to Rep.
Jim McReynolds
Bob Gill, Tarrant County ADA
John Gould, Director, Center for Justice,
Law & Society, George Mason
University
Sarah Guidry, Director, Thurgood
Marshall Innocence Project

Nicole Harris, Innocence Project of New
York
Anthony Haughton, Thurgood Marshall
Innocence Project
Katie Henry, General Counsel to Sen.
Jeff Wentworth
Dannye Holley, Interim Dean, Texas
Southern University Thurgood
Marshall School of Law
Timothy Hooper, TFID Legal Intern
Walter Huffman, Dean Emeritus, Texas
Tech University School of Law
The Innocence Project of Texas
Cassandra Jeu, Deputy Director, Texas
Innocence Network
Kelly Josh, Texas Defender Service
Michael Marchand, President, Center for
American and International Law
Michelle Moore, Dallas County Public
Defender
Raymond Nimmer, Dean, University of
Houston Law Center
Katie Ogden, General Counsel to Senate
Jurisprudence Committee
Michael Pacheco, Legislative Director to
Rep. Pete Gallego
Leah Pinney, Texas Criminal Justice
Coalition
Natalie Plunk, Administrative Assistant
to Judge Whitley, Tarrant County

Carl Reynolds, Administrative Director,
Office of Court Administration
Natalie Roetzel, The Innocence Project
of Texas
Larry Sager, Dean, University of Texas
at Austin School of Law
Austin Shell, TFID Legal Intern
Mark Smith, Vice President, Center for
American and International Law
Warren St. John, President, Tarrant
County Criminal Defense Lawyers
Association
Whitney Stark, Innocence Project of
Texas
Task Force on Indigent Defense Staff
Texas Association of Counties
Texas Center for Actual Innocence
Texas Criminal Defense Lawyers
Association
Texas Criminal Justice Integrity Unit
Texas District and County Attorneys
Association
Texas Innocence Network
Thurgood Marshall Innocence Project
Jessica Tyler, Office of Court
Administration
Judge B. Glen Whitley, Presiding
Officer of the Tarrant County
Commissioners Court
Ana Yáñez-Correa, Executive Director,
Texas Criminal Justice Coalition

v|Page
Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

Timothy Cole Advisory Panel on Wrongful Convictions
Report and Recommendations
Table of Contents
Timothy Cole Advisory Panel on Wrongful Conviction Membership………………...i
Summary Recommendations…………………………………………………………… ii
Letter from Ruby Cole Session, Mother of Timothy Cole…………………………… iii
Letter from Presiding Officer ………………………………………………………..... iv
Acknowledgements…………………………………………………………………….... v
Introduction……………………………………………………………………………… 1
Chapter 1: Eyewitness Identification Procedures……………………………………... 5
Panel Recommendations……………………………………………………………… 5
Panel Report………………………………………………………………………..…. 6
Concurring Report…………………………………………………………………... 10
Chapter 2: Recording Custodial Interrogations……………………………………... 18
Panel Recommendations……………………………………………………………. 18
Panel Report…………………………………………………………………………. 18
Chapter 3: Discovery Procedures……………………………………………………... 23
Panel Recommendations…………………………………………………………….. 23
Panel Report…………………………………………………………………………. 23
Chapter 4: Post-Conviction DNA Testing and Writs of Habeas Corpus Based
on Changing Science……………………………………………………………….. 29
Panel Recommendations…………………………………………………………….. 29
Panel Report…………………………………………………………………………. 29
Chapter 5: Feasibility of Establishing an Innocence Commission………………….. 32
Panel Recommendations…………………………………………………………….. 32
Panel Report…………………………………………………………………………. 32

vi | P a g e
Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

Timothy Cole Advisory Panel on Wrongful Convictions
Report and Recommendations
Introduction
The Timothy Cole Advisory Panel on Wrongful Convictions was created by HB 498
during the 81st Legislature in 2009. Named after Timothy Cole, the first Texan to be
posthumously exonerated of a crime through DNA testing, the Panel was directed to advise the
Task Force on Indigent Defense in the preparation of a study regarding the causes of wrongful
convictions; procedures and programs that may be implemented to prevent future wrongful
convictions; the effects on wrongful convictions of state law regarding eyewitness identification
procedures, the recording of custodial interrogations, post-conviction DNA testing, and writs of
habeas corpus based on relevant scientific evidence; and whether the creation of an innocence
commission to investigate wrongful convictions would be appropriate. 1
The Panel held its first organizational meeting on October 13, 2009, to set an agenda for
the following year and divide into workgroups based on each content area directed by statute. In
addition, the Panel expressed interest in discovery procedures and informant evidence, and
workgroups were created for these areas. Workgroup meetings were held December 7 and 8,
2009, followed by a trip to Tarrant County by the full Panel to observe the county’s electronic
discovery system. Workgroup and full Panel meetings were held April 21 and 22, 2010,
followed by the full Panel meeting on August 12, 2010. Numerous workgroup conference calls
and meetings were held to draft the report and the final recommendations.
The Panel’s report and the meetings that led to it were not meant to pin wrongful
convictions on “bad apples,” but rather to look for junctures in our system of criminal justice
where errors occur. 2 While the Panel was not created to do in-depth analysis of errors in
individual cases (e.g., the important work pursued by the Harris County District Attorney Pat
Lykos 3 and the Dallas County Convictions Integrity Unit created by District Attorney Craig
Watkins 4), the Panel attempted to make recommendations that will impact multiple points of
weakness in the system as a whole: investigations (eyewitness identification procedures and
recording custodial interrogations), pre-trial and trial procedures (automatic discovery that
permits electronic access to or photocopies of materials), and post-conviction procedures (DNA
testing, writs of habeas corpus based on changing science, and creating a process for continued
review of wrongful convictions). In this way, the Panel viewed its task as one of defining
“organizational accidents,” 5 or perhaps more appropriately “systemic accidents,” rather than one
of placing blame on individual actors.

1

Tex. H.B. 498, 81st Leg., R.S. (2009).
See James M. Doyle, Learning from Error in American Criminal Justice, 100 J. CRIM. L. & CRIMINOLOGY 109
(2010).
3
See, e.g., OFFICE OF DISTRICT ATTORNEY PATRICIA R. LYKOS, RACHELL REPORT (2009), http://www.patlykos.com/
linked_docs/rachell_report.pdf.
4
Conviction Integrity – Dallas County DA’s Office, http://www.dallasda.com/conviction-integrity.html (last visited
Aug. 5, 2010).
5
Doyle, supra note 2.
2

1|Page
Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

The Panel believes that this approach lends itself to the kind of justice Tim Cole’s family
spoke of when they stated that “There is no ‘perfect system.’” 6 Instead, the Cole-Session family
said that the collaborative approach taken by the Panel indicated that “Texas is on the path
toward the Zenith of Criminal Justice Reform. The Tim Cole Advisory Panel has brought
together a collaborative consensus from all three Branches of our State Government.” Tim’s
mother, Ruby Cole Session, and brother, Cory Session, continued, “For our family’s great loss
there are now great gains in the Justice System. We are pleased that the State of Texas is now in
pursuit of Equal Justice Under Law for all.” 7
The Panel submits to the Task Force the following materials: 1) a summary of the Panel’s
recommendations, 2) the Panel’s summary report, and 3) a comprehensive report of the Panel’s
research that analyzes in further detail the content areas introduced in the summary report. In
addition to the areas required by the statute, the Panel addressed discovery policies in its
deliberations and recommendations, and Prof. Sandra Guerra Thompson submitted a report on
informant evidence for inclusion in the Panel’s research materials. To the extent possible, the
report represents the consensus of the Panel. Although there are additional opportunities for
reform in any system, the Panel believes that adopting represent would represent an important
step forward for the State of Texas in the effort to prevent wrongful convictions.
The Panel takes seriously its duty to learn from the mistakes, revealed through postconviction DNA testing, that sent innocent Texans to prison for crimes committed by others.
The first 39 of cases were documented in a report by The Justice Project and included in the table
below. Since publication of that report, one additional man, Jerry Lee Evans, has been
exonerated, and three others have been released on new DNA evidence and await full
exoneration from the state.

6

Email from Cory Session, to Jim Bethke, Director, Texas Task Force on Indigent Defense (Aug. 5, 2010) (on file
with Texas Task Force on Indigent Defense).
7
Id.

2|Page
Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

The Justice Project: The Texas DNA Exonerated 8

Last Name

First Name

ope

Alejandro

1m

Blair

1994 2008

Buder

1983 2000

Smith

8,..

1985 1997

H.Yris

Chatman
Cole·
Criner
Danziger

1981

TlTlOIhy Beiln

'''

Fuller

Giles

Jarres Osls

Good

",,'"

Gossett

"'""'"

Kauge

&.goo
Enlre Nax

Lavemia

Lindsey

Jltmie Earl

McGowan

Miller

M"',
Mumphrey
O<hoo
Phil~ps.

"'"

2007

19'"
1990 2001
1986 2003
1981 2006
1983 2007
1984 2004

Tho""

Tr""is

llIpe, mlJdef

Ellly J<mes

Ft,,,"

""'"
Tratis

1983 2008
1985 2008
1984 2006
1988 2005
1986 2006

"""

""'"
""'"

",,'

,n,,'"

./

12

16
20
10

./

10
7

./

./

2
7

op,

./

."

./

16
26
23

22

./

17

./

18

./

12

26

","" lug'"

""'"

ope

Harris

op,

1987 2004

./
./

./

,

15

./

10

./
./
./
./
./

./

./
./

./

17

1992 1997
1987 2006
1999 2004

Tr""is

op,

Haris

",,'

2007

Harris

ope

EO,

",,'

15

ope

4

!ape, mlJder

1986 2002
1983 2006

Patrldt

1983 2007
1992 2008

Wal6s

1969 2007

Washing~n

1987 2001

Md..enrnn

Webb
Woodard

1981 20CB

TOTALS
"Died (/ png)fl (/ 1999

27
13'

./

",,'

"""
""'"

Waller

"

./

./

0"
""
ope

1985 2000

Kelh E,

Waller

17

10

"''''

2003 2008
1987 2000

Taylor

""'"

1984 2006
1997 2004

Rachel

Sullon

LublxX:k

Christopher
2001
Sl:evm Oakls 1983 2007

""''"

14

./
op,
ope

200J 2007

1986 2001

Salazar
Smith

./

1990 2000

Pope
Robinson
Rodriguez

4

./

1987 2001

5

19
4

./

"

16
18
13

./

13
27

",,'

"""

1IlJ~

rape
33

7

11

5

5

7

548

8

THE JUSTICE PROJECT. CONVICTING THE INNOCENT: TEXAS JUSTICE DERAILED: STORIES OF INJUSTICE AND THE
REFORMS THAT CAN PREVENT THEM (2009), reprinted with permission from The Justice Project.

3|Page
Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

Allen Wayne

1990

Harris

rape

Michael A.

1983

Harris

rape

Ernest

Porter**
Green**

Approximate Years in
Prison

kidnapping

Sonnier**

✓
✓
✓
✓

False Confession or
Plea
Suppression of
Exculpatory Evidence
or Other Misconduct

Harris

1986

Jailhouse Informant &
Accomplice Testimony

1986

Jerry Lee

Unreliable or Limited
Forensic Methods

rape

Evans

Faulty Forensic
Testimony

Crime

Dallas

First Name

Mistaken Eyewitness
Identification

County

2009

Last Name

Year Convicted

Year Exonerated

New and Pending DNA Exonerations 9

23

✓

23
19
27

**Released on new DNA evidence, awaiting final exoneration from the State of Texas

9

THE JUSTICE PROJECT, CONVICTING THE INNOCENT: TEXAS JUSTICE DERAILED: TEXAS DNA EXONERATION
UPDATE (2010).

4|Page
Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

Chapter 1: Eyewitness Identification Procedures
Panel Recommendations
In a survey of 1,038 Texas law enforcement agencies, 750 responded and only 88 (12%)
had any written policies to guide investigators as they prepare and administer eyewitness
identification procedures. 1 Based on the seriousness of eyewitness misidentification, the Panel
makes the following recommendations. These proposals are in line with the language in the
House committee substitute to SB 117 during the 81st Legislature (see Appendix A of the
Research Details). These consensus procedures were supported by a broad range of criminal
justice stakeholders during the session and continue to be supported by this diverse Panel:
1. The State of Texas should require Bill Blackwood Law Enforcement Management
Institute of Texas (LEMIT) to work with scientific experts in eyewitness memory
research and law enforcement agencies to develop, adopt, disseminate to all law
enforcement agencies, and annually review a model policy and training materials
regarding the administration of photo and live lineups. That model policy should
comport with science in the areas of cautionary instructions, filler selection, doubleblind administration, documentation of identification procedures, and other
procedures or best practices supported by credible research.
By working with experts in the field of eyewitness memory and identification procedures,
LEMIT can develop a standardized procedure that will guide the photo and live lineups
conducted throughout the state. Annual review of this model policy will ensure that eyewitness
identification procedures in Texas are guided by the most current science and best practices
available.
2. The State of Texas should require all law enforcement agencies to adopt eyewitness
identification procedures that comply with a model policy promulgated by the Bill
Blackwood Law Enforcement Management Institute of Texas (LEMIT).
The Panel recommends that a model policy be developed and promulgated by LEMIT to
make implementation easy for Texas law enforcement agencies.
3. The State of Texas should integrate training on eyewitness identification procedures
into the required curricula of the Bill Blackwood Law Enforcement Management
Institute of Texas (LEMIT) and the Texas Commission on Law Enforcement
Standards and Education (TCLEOSE).
The Panel believes the law enforcement community can benefit from increased training
on the science of eyewitness misidentification and how to prevent those errors through the
policies advocated above.
4. The State of Texas should permit evidence of compliance or noncompliance with the
model policy to be admissible in court.
Because jurors must weigh the quality and value of the evidence that is presented to them
in order to determine the guilt or innocence of a defendant, it is important for evidence of
1

THE JUSTICE PROJECT, EYEWITNESS IDENTIFICATION PROCEDURES IN TEXAS 3 (2008), available at
http://www.thejusticeproject.org/wp-content/uploads/texas-eyewitness-report-final2.pdf.

5|Page
Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

compliance or noncompliance with the model policy to be presented to them during a criminal
trial. Without appropriate context for identification evidence, jurors may inadvertently rely on
testimony resulting from a flawed procedure in their deliberations.
5. The State of Texas should allow law enforcement agencies discretion on the
adoption of sequential procedures.
Although several jurisdictions in Texas have included sequential presentation in their
eyewitness identification standard operating procedures, the majority of the Panel believes that
the science is not yet settled on whether sequential presentation is superior to simultaneous
presentation.
Panel Report
Introduction
Erroneous eyewitness identification has played a role in over 80 percent of Texas
exonerations, making it is the most common factor that has contributed to wrongful convictions
in Texas. 2 To guide policy discussions on this important subject, the Panel reviewed the existing
laws relating to eyewitness identification procedures and evaluation, and the science of
eyewitness identification. The Panel recommends that standardized eyewitness identification
procedures and training are needed in law enforcement agencies across the state to prevent
wrongful conviction through mistaken identifications, in line with the recommendations
proposed in CSSB 117 during the 81st Legislature.
Texas Case and Statutory Law
Currently, there is no Texas statutory law governing eyewitness identification procedures,
leaving methodology up to the discretion of local authorities. Although the Texas Court of
Criminal Appeals and the United States Supreme Court have addressed problems of eyewitness
error in their opinions, courtroom remedies alone may not be the most effective method available
to prevent wrongful convictions. First, judicial remedies are applied only after potentially
flawed eyewitness evidence is presented in court, and jurors may find it difficult to discount
eyewitness testimony once presented. Second, science indicates that there are many facets of the
identification procedure itself that can impact the outcome of the procedure. The composition of
the lineup, the instructions given to the eyewitness, the lineup administrator, and the method of
presentation may all play a role in: 1) whether an identification is made and 2) the lineup
member who is identified. In order to effectively prevent wrongful conviction due to eyewitness
error, those errors must be eliminated at the investigatory phase.
The Science of Eyewitness Identification
Filler Selection
One of the first considerations of an identification procedure is the selection of fillers for
either a live or photographic lineup. Fillers (also known as “foils” or “distracters”) are people
investigators believe to be innocent of a crime (e.g., plain clothes officers or jail inmates, photos
taken from a mug book or database) and are shown to an eyewitness witness along with the
police suspect for a crime. When composing a lineup, fillers may be chosen using two common
methods: those who resemble the suspect (resemble-suspect), or those who match the description
2

Id. at 1.

6|Page
Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

of the perpetrator (match-description). Although the theory is that fillers should resemble the
suspect in a lineup (resemble-suspect) so the suspect does not unduly stand out, some argue that
the strategy “promotes unnecessary or gratuitous similarities between distracters and the
suspect.” 3 These researchers advocate the match-description strategy, arguing that as long as all
fillers match the initial description of the culprit given by the eyewitness, the police suspect
should be sufficiently hidden among the fillers to ensure that the procedure is a recognition test.
Cautionary Instructions and Sequential Presentation
When an eyewitness is given the task of reviewing a lineup, a reasonable expectation
may exist that the police would not make the effort to assemble a lineup unless they felt they had
a viable suspect for the crime. If the eyewitness assumes that the perpetrator is in the lineup, then
he or she is likely to simply select the subject who most closely resembles the perpetrator. 4 To
guard against this potential problem, lineup administrators should explicitly instruct the witness
that the lineup may or may not contain the actual perpetrator and to give additional guidance that
it is just as important to free innocent people from suspicion as it is to identify the guilty party. 5
Such cautionary instructions are unbiased and may reduce the pressure on an eyewitness to make
an identification. 6
To further reduce this pressure, scholars have tested a method of sequential presentation.
With sequential presentation, an eyewitness is shown lineup members individually and asked
after each photo to determine if that photo is of the perpetrator. Initial results using the sequential
method seemed to support the superiority of the method, 7 but subsequent studies on the
procedure have not provided a definitive answer on the utility of sequential over simultaneous
lineups. Results have shown that although sequential lineups may reduce false identifications,
they may also reduce correct identifications. 8

3

Gary L. Wells, Sheila M. Rydell & Eric P. Seelau, The Selection of Distractors for Eyewitness Lineups, 78 J.
APPLIED PSYCHOL. 835, 835 (1993) The authors suggest that if the suspect does not match the eyewitness’
description, fillers should be chosen who match on the features where there is a discrepancy (e.g., eyewitness
described curly hair, but the suspect has straight hair; fillers should have straight hair), but they are free to vary on
other features. Id.
4
Gary L. Wells, Roy S. Malpass, R.C.L. Lindsay, Ronald P. Fisher, John W. Turtle & Solomon M. Fulero, From the
Lab to the Police Station: A Successful Application of Eyewitness Research, 55 AM. PSYCHOLOGIST 581, 585
(2000).
5
Id. at 575-76.
6
Id. at 576.
7
See Brian L. Cutler & Steven D. Penrod, Improving the Reliability of Eyewitness Identification: Lineup
Construction and Presentation, 73 J. APPLIED PSYCHOL. 281 (1988); R. C. L. Lindsay, James A. Lea & Jennifer A.
Fulford, Sequential Lineup Presentations: Technique Matters, 76 J. APPLIED PSYCHOL. 741 (1991); R. C. L.
Lindsay, James A. Lea, Glenn J. Nosworthy. Jennifer A. Fulford, Julia Hector, Virginia LeVan & Carolyn Seabrook,
Biased Lineups: Sequential Presentation Reduces the Problem, 76 J. APPLIED PSYCHOL. 796 (1991); R. C. L.
Lindsay & Gary L. Wells, Improving Eyewitness Identifications from Lineups: Simultaneous Versus Sequential
Lineup Presentation, 70 J. APPLIED PSYCHOL. 556 (1985).
8
See R. C. L. Lindsay, Jamal K. Mansour, Jennifer L. Beaudry, Amy-May Leach & Michelle I. Bertrand, Sequential
Lineup Presentation: Patterns and Policy, 14 LEGAL & CRIMINOLOGICAL PSYCHOL. 13 (2009); Roy S. Malpass, A
Policy Evaluation of Simultaneous and Sequential Lineups, 12 PSYCHOL. PUB. POL’Y & L. 394 (2006); Roy S.
Malpass, Colin G. Tredoux & Dawn McQuiston-Surret, Public Policy and Sequential Lineups, 14 LEGAL AND
CRIMINOLOGICAL PSYCHOL. 1 (2009); Roy S. Malpass, Colin G. Tredoux & Dawn McQuiston-Surret, Response to
Lindsay, Mansour, Beaudry, Leach and Bertrand’s Sequential Lineup Presentation: Patterns and Policy, 14 LEGAL
& CRIMINOLOGICAL PSYCHOL. 25 (2009).

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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

Confidence, Accuracy, and Double-Blind Procedures
Research into the relationship between eyewitness confidence and accuracy has
demonstrated that the relationship is inconsistent at best, most likely because the confidenceaccuracy relationship is malleable through both expectancy effects and post-identification
feedback. Expectancy effects exist when an administrator knows the identity of a suspect in an
eyewitness lineup and gives (often unintentional) verbal and nonverbal cues that enhance the
likelihood that the suspect will be chosen. Research has found that administrators who know the
identity of the suspect can influence the selection made by the eyewitness. In addition,
administrators who know the identity of a police suspect may impact the confidence-accuracy
relationship through post-identification feedback. 9 This feedback occurs when police
communicate to an eyewitness that he or she has identified the suspect through either verbal
(“Good, you picked the suspect.”) or nonverbal (nodding, smiles, etc.) means, and studies have
shown that feedback can artificially inflate an eyewitness’ confidence in that identification. 10
Researchers have tested ways to prevent these impacts on the confidence-accuracy
relationship. First, eyewitnesses may be asked for their confidence in their identifications before
any feedback is provided to them. This is valuable because “the certainty of the witness at the
time of the identification, uncontaminated by feedback, would then be available at trial through
discovery motions.” 11 Second, scholars suggest that law enforcement can ensure that the person
who conducts the lineup is unaware of which member is the police suspect. 12 Researchers have
found that these measures all but eliminate administrator influence from the procedures. 13
Organizations’ Recommended Practices
The studies summarized above have led researchers to develop a set of recommendations
for the conduct of eyewitness identification lineups. Scientists generally agree that lineups
should contain only one suspect, the suspect should not unduly stand out from the fillers,
appropriate cautionary instructions are needed, the administrator of the lineup should not know
who is the police suspect (double-blind procedures), and the administrator should collect a
confidence statement from the eyewitness at the time of the identification before any feedback is
given. 14 Many of these recommendations have been adopted by organizations such as the
Department of Justice, the American Bar Association, and the International Association of
Chiefs of Police (see table below). In Texas, the Governor’s Criminal Justice Advisory Council
and the Texas Criminal Justice Integrity Unit have both called for additional study and reform of
eyewitness identification procedures.

9

See Gary L. Wells, Amina Memon & Steven Penrod, Eyewitness Evidence: Improving Its Probative Value, 7
PSYCHOL. SCI. PUB. INT. 45 (2006) (reviewing the literature on confidence and accuracy).
10
Carolyn Semmler, Neil Brewer & Gary L. Wells, Effects of Postidentification Feedback on Eyewitness
Identification and Nonidentification Confidence, 59 J. APPLIED PSYCHOL. 334, 342 (2004).
11
Amy L. Bradfield, Gary L. Wells & Elizabeth A. Olson, The Damaging Effect of Confirming Feedback on the
Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. OF APPLIED PSYCHOL. 112, 119 (2002).
12
See generally Wells et al., supra note 3.
13
Carolyn Semmler, Neil Brewer & Gary L. Wells, Effects of Postidentification Feedback on Eyewitness
Identification and Nonidentification Confidence, 59 J. APPLIED PSYCHOL. 334, 335 (2004).
14
See Gary L. Wells, Eyewitness Identification: Systemic Reforms, 2006 WIS. L. REV. 615 (2006); Gary L. Wells,
Mark Small, Steven Penrod, Roy S. Malpass, Solomon M. Fulero & C. A. E. Brimacombe, Eyewitness Identification
Procedures: Recommendations for Lineups and Photospreads, 22 LAW & HUM. BEHAV. 1 (1998).

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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

Summary of Organizations’ Recommended Practices

Filler Selection

Cautionary
Instructions

Lineup
Administration

Documentation

Other

DOJ 15

ABA 16

IACP 17

• One suspect per lineup
• Fillers should match
witness’ description of
perpetrator
• Minimum of 5 fillers (4
for live lineups)

• Fillers should match
witness’ description of
perpetrator
• Sufficient number of
fillers needed

• “Just as important to
clear innocent persons”
• “Person who committed
the crime may or may
not be present”
• “Regardless of whether
an identification is
made, police will
continue to investigate”

• “Perpetrator may or
may not be in the
lineup”
• “Do not assume that the
person administering
lineup knows identity of
suspect”
• “Need not identify
anyone”

• Instructions for both
simultaneous and
sequential procedures
• Blind administration not
addressed
• Ask witness to state, in
her own words, how
certain she is of any
identification
• Preserve photos and
presentation order
• Video or audio
recommended for live
lineups
• Record identification
and nonidentification
results in writing
• Recommendations for
initial reports by first
responders, mug books
and composites,
procedures for
interviewing witness,
show-ups

• Blind administration
whenever practicable

• One suspect per lineup
• Individuals of similar
physical characteristics
• Minimum of 5 fillers (4
for live lineups)
• Photographs themselves
should be similar
• “Just as important to
clear innocent persons”
• “Person who committed
the crime may or may
not be present”
• “You do not have to
identify anyone”
• “Regardless of whether
an identification is
made, we will continue
to investigate”
• Blind administration
whenever possible
• Note that sequential
procedures have been
recommended by some
• Video or audio tape live
lineup whenever
possible
• Preserve photo array for
future reference

• Ask witness to state, in
her own words, how
certain she is of any
identification
• Video record
recommended of lineup
procedure
• Photos should be taken
of lineup

• Training for police and
prosecutors on how to
implement
recommendations,
conduct non-suggestive
lineups

• Recommendations for
multiple witnesses,
blank lineups, right to
counsel at eyewitness
identifications

15

TECHNICAL WORKING GROUP FOR EYEWITNESS EVIDENCE, U.S. DEP’T OF JUSTICE, Eyewitness Evidence: A Guide
for Law Enforcement (1999), available at http://www.ncjrs.gov/pdffiles1/nij/178240.pdf.
16
ABA CRIMINAL JUSTICE SECTION, Report to the House of Delegates: Recommendation of Best Practices for
Promoting the Accuracy of Eyewitness identification Procedures (2004), available at
http://meetings.abanet.org/webupload/commupload/CR209700/relatedresources/ABAEyewitnessID
recommendations.pdf
17
INT’L ASS’N OF CHIEFS OF POLICE, Training Key No. 600, Eyewitness Identification (2006).

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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

Although the Panel agrees that the reforms listed above are necessary for the State of
Texas, additional policy reforms and approaches have been suggested and may be
considered by the Legislature, as outlined below in the concurring report.
Concurring Report to TCAP Eyewitness Identification Report
(See Appendix B in Research Detail for Supplemental Information)
Submitted by Prof. Sandra Guerra Thompson
University of Houston Law Center
1.

TCAP should make recommendations for the adoption of statutory rules to govern
the use of single-suspect showups.
a.

The failure to address single-suspect showups is a major and unnecessary
omission in the TCAP report. A large percentage of identifications are obtained
by means of single-person “showups.” In Dallas, three of the first 19 DNA
exonerations were due to erroneous identifications at showups. Twenty percent of
the DNA exonerations nationwide are due to the use of this highly suggestive
procedure. (see attachment)

b.

The Department of Justice Report, Eyewitness Evidence: A Guide for Law
Enforcement (1999), requires administrators to (1) document a witness’s
description of the suspect prior to a show-up and (2) separate witnesses during a
showup. It recommends that if a witness make a positive identifications,
investigators should consider using other types of identification procedures for all
subsequent confirmatory identifications, rather than this highly suggestive
method. As with lineups and photo arrays, the DOJ report also requires
investigators to give cautionary instructions to the witness that the person in the
showup may or may not be the perpetrator, and it urges investigators to obtain a
statement of the witness’s certainty following a positive identification and
maintain written documentation of that statement. Specifically, the DOJ report
requires written documentation of the time, place, and result of the showup. The
Innocence Project further recommends that the showups occur in a neutral, nonlaw enforcement location, without handcuffs (when practicable), and with the
suspect removed from the squad car. It also recommends that showups be
videotaped whenever practicable.

c.

Other states have adopted measures to limit and regulate the use of showups. The
Wisconsin, New York, and Massachusetts high courts, for example, refuse to
admit identification testimony if it is based on a showup, unless the showup was
conducted in the immediate aftermath of the crime or other exigent circumstances
necessitated it. Maryland requires its law enforcement agencies to adopt written
policies on identification procedures that comply with the Department of Justice
recommendations.

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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

2.

d.

The Dallas Police have good written guidelines for showups (see attached): only
to be used when necessary and appropriate, not when probable cause to arrest
exists, within a short window of time (30 minutes – 2hours), if suspect
apprehended near the crime, if public safety concerns exist. Also requires police
to instruct witness that the person may or may not be the perpetrator and that the
investigation will continue regardless of whether an ID is obtained, if one witness
makes an ID subsequent witnesses will be shown lineups, separate witnesses (one
witness per showup, other witness cannot be present), avoid suggestive statements
(use of the word “suspect”), document detailed description from witness
beforehand, do not use showup if suspect does not match witness’s description,
and documentation (completion of showup documentation form).

e.

Guidelines recommended by the IACP (International Association of Chiefs of
Police) in their Traning Key #600 are similar (see attached): no showup if
probable cause to arrest, obtain complete description from witness before a
showup, suspect should not be in a cell, handcuffed or in jail attire, separate
witnesses and do not allow them to talk about the ID before or after, same suspect
should not be shown to a witness more than once, suspect should not be required
to wear perpetrators clothing or speak similar words, police should avoid
suggestive statements about the suspect, witnesses should be warned the person
they view may or may not be the perpetrator, and confidence statement should be
obtained. However, these guidelines do not address any time limitations (2 hours
after the crime, etc), when showups are appropriate, or that if one witness makes
an ID subsequent witnesses should be shown a lineup instead.

TCAP should recommend that all witnesses who make an identification be asked for
a statement of certainty.
There is robust scientific research demonstrating the confidence is malleable, and can be
easily inflated by feedback received post-identification. Moreover, studies have found
that jurors place great weight on the confidence of eyewitnesses at trial, irrespective of
their accuracy. As long as witnesses are permitted to state their confidence in their
identifications at trial, it is critical that their level of confidence be documented, in the
witness’s own words, at the time of the out-of-court identification. While TCAP’s
recommendation that the police document anything the witness says is a good one, it
should recommend, specifically, that the witness’s confidence be documented, since there
may be witnesses who make identifications but do not, on their own, express their degree
of certainty.

3.

Regarding warnings to witnesses, while TCAP recommends the most critical
warning (the perpetrator may or may not be present), it should be noted that other
instructions could and should be given as well.
A better and more comprehensive set of instructions can be found in legislation passed in
North Carolina in 2008 1:
a.

1

The perpetrator might or might not be presented in the lineup,

N.C. GEN. STAT. § 15A-284.52(b)(3) (2009).

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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

4.

b.

The lineup administrator does not know the suspect's identity,

c.

The eyewitness should not feel compelled to make an identification,

d.

It is as important to exclude innocent persons as it is to identify the perpetrator,

e.

The investigation will continue whether or not an identification is made.

TCAP should recommend blind and sequential lineups and photo arrays.
a.

Research experiments have shown time and again how some practices are
suggestive or conducive to erroneous identifications. Some law enforcement
officials have taken the position that laboratory studies are not relevant to real
police work, but the constant flow of DNA exonerations proves that the findings
of those laboratory studies were right all along. Those studies have
overwhelmingly demonstrated the problem of “relative judgment” that causes
erroneous identifications and that sequential identification procedures can
minimize this effect.

b.

Researchers distinguish between identifications based on “relative judgment”
(comparable to the use of a process of elimination) and “recognition memory.”
The following is a discussion about relative judgment by Gary Wells, one of the
top psychologists who has conducted decades of research on eyewitness
identifications:
“[P]eople have a tendency to select the person who looks most like the offender
relative to the other members of the lineup. At first glance, this relative-judgment
process would seem to be nonproblematic. In fact, however, the relative-judgment
process is extremely problematic. The problem is made apparent by considering
the fact that there is always someone who looks more like the offender than the
remaining members of the lineup, even when the lineup does not include the
offender. In these cases, eyewitnesses have a tendency to select that innocent
person and confuse this relative-judgment process with recognition memory.
The relative-judgment problem is well illustrated in an experiment in which a
crime was staged 200 times for 200 separate witnesses. All of the witnesses were
then shown one of two lineups. Every witness was warned that the offender might
or might not be in the lineup. Half of the witnesses viewed a six-person lineup in
which the offender was present. Of these 100 witnesses, 21% made no selection at
all, 54% picked the offender, 13% picked particular filler, and the remaining
witnesses spread their choices across the other lineup members. The other half of
the witnesses viewed a lineup in which the offender was removed and was not
replaced. The critical question in this scenario is what happened to the 54% of
witnesses who would have chosen the offender had he been present; did they shift
to the no-choice category, thereby causing 75% to make no choice? No. Of these
100 witnesses, the no-choice rate increased to only 32% whereas the person who
was previously picked only 13% of the time was now picked 38% of the time. In
other words, even though all of the witnesses were warned that the offender might
not be in the lineup, removing the offender from the lineup led witnesses to shift
to the "next best choice," nearly tripling the jeopardy of that person. Controlled
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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

eyewitness experiments consistently show that the most difficult problem for
eyewitnesses is recognizing the absence of the offender because, even when the
offender is not in the lineup, there is still someone who looks most like the
offender relative to other members of the lineup.
The majority of DNA exoneration cases represent instances in which the actual
offender was not in the lineup. This is precisely what eyewitness researchers had
predicted based on data from controlled experiments. Unfortunately, there are
hundreds of circumstances under which police might unknowingly place an
innocent suspect in a lineup. Sometimes police place an innocent suspect in a
lineup because they received an anonymous but erroneous tip that the person was
the offender; sometimes an innocent suspect is placed in a lineup merely because
the person fits the general physical description and was in the vicinity of the
crime; sometimes an innocent person came into possession of something linked to
the crime; and sometimes one or more detectives places a suspect in a lineup
based on a "hunch." Whatever the cause, it can never be presumed that the suspect
is the offender; if police knew that, they would not need the lineup at all.”
(Wisconsin Law Review, 2006)
c.

A large body of peer-reviewed research conducted over the last 20 years
demonstrates that sequential presentation, when coupled with a “blind”
administrator, greatly minimizes the likelihood of incorrect identifications.

d.

The Illinois State Police study that created controversy over sequential lineups
was worthless and should not impede important reform. This report has caused
some law enforcement agencies to oppose sequential procedures, but others have
rejected it.

e.

A distinguished panel of seven scientists outside the field of eyewitness
identification studied the Illinois experiment and found that it had a fundamental
confound in its comparison of double-blind sequential lineups with non-blind
simultaneous lineups, a flaw that has “devastating consequences for assessing the
real-world implications…[and] guaranteed that most outcomes would be difficult
or impossible to interpret.” In short, the study could not answer the research
question as to whether sequential lineup procedures are superior to simultaneous,
nor whether double-blind procedures are superior to non-blind. (2008)
Moreover, a recent journal article summarized the data from the Evanston police
department, procured through a Freedom of Information Act lawsuit filed by the
National Association of Criminal Defense Lawyers and the MacArthur Justice
Center of the Bluhm Legal Clinic at Northwestern University School of Law,
raises even more serious concerns about the validity of the Illinois study (Chicago
and Joliet have not yet turned over their data), specifically about the lack of
random assignment. 2 Random assignment is a fundamental requirement of sound
scientific study. Underlying data Dr. Steblay’s comparison of the data from the
non-blind simultaneous lineups to data from the double-blind sequential lineups

2

Nancy K. Steblay, What We Know Now: The Evanston Illinois Field Lineups, Law & Hum. Behav. (forthcoming
2010).

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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

reveals not only that the study’s cases were not randomly assigned to the two
conditions, but that the cases more likely to result in suspect identifications were
assigned to the non-blind simultaneous condition.

5.

f.

TCAP is not the correct forum to make political compromises on account of law
enforcement resistance to changes due to the confusion created by the Illinois
study. The proper role of this panel is to advise the legislature on the best
practices for reducing wrongful convictions.

g.

Other states have adopted sequential identification procedures, even after the
Illinois study was reported. The Attorney General of Wisconsin rejected the
conclusions on sequential procedures of the Illinois study and continued to require
blind and sequential procedures. (2006) New Jersey’s Attorney General had
adopted blind and sequential lineups and photo arrays in 2001 and made no
change in light of the Illinois study. The North Carolina legislature adopted
sequential, double-blind for lineups. (2007). Ohio reformed its procedures to
adopt a sequential “folder” method (2010).

TCAP should propose more active judicial oversight of eyewitness identification
evidence.
Texas law should address the inherent weaknesses in eyewitness testimony with
mandates to trial courts regarding reliability hearings, jury instructions, and expert
testimony. This approach is reflected in the framework proposed by the Innocence
Project and adopted by the Special Master in State v. Henderson. See. State v.
Henderson, A-9 Sept. Term 2008, 2009 N.J. LEXIS 45 (N.J. Feb. 26, 2009). Specifically,
reliability hearings should be conducted in every case to examine all relevant factors both
event and procedure-related, affecting identification accuracy, including suggestion by
non-state actors. In addition, remedial interventions such as jury instructions on the
numerous variables shown by robust scientific studies (and, in particular, meta-analyses)
to affect the reliability of identifications, admission of expert witnesses, requiring
corroborating evidence, or exclusion to address the inherent weakness of some
identifications. The lack of reliability of identifications may be the result of
contamination of the witness’s memory by other witnesses, family and friends, the media,
or simply on account of factors inherent in the witness (including race 3, stress, age,
influence of alcohol) or factors inherent in the crime (including whether a weapon was
present, the distance between the witness and the perpetrator, lighting conditions, etc.).
The important thing to note here is that some identification testimony is too unreliable to
admit or may require some remedial intervention, even though the police may fully
comply with “best practice” procedures.
The TCAP proposals focus only on “system variables,” not “estimator variables.”
System variables are those factors that the legal system can control, for example, by
means of improved police procedures. Estimator variables are those qualities inherent in

3

A major concern is the fact of reduced accuracy due to the witness being of a different race than the suspect. This
factor is so thoroughly established in the research as to be beyond dispute. New Jersey Supreme Court has
mandated jury instructions on cross-race identification when identification plays a key role and there is no
corroborating evidence (1999).

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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

the eyewitness such as the witness’s age or race, the ability to observe the suspect,
lighting conditions, etc.
In June of 2010, a Special Master appointed by New Jersey’s top court called for a major
overhaul of the legal standards for the acceptance of eyewitness testimony in court, citing
33 years of robust scientific research on memory and interview techniques. The Special
Master’s opinion was made public in a 64-page report following an unprecedented
hearing on eyewitness identification science and law that began in September 2009.
The New Jersey court recommended that prosecutors – not defendants – should bear the
burden of proof regarding the reliability of eyewitness testimony, and that juries as well
as judges should be fully informed as to the factors proven by science to impact
eyewitness identification reliability.
The court also found that not just law enforcement but “outside actors” (e.g., other
witnesses or family members) can contaminate a witness’ memory, and courts should
take this into account when reviewing the reliability of testimony.
In 2007 and 2009 respectively, the Tennessee and Utah Supreme Courts required that
expert testimony be admitted when the requirements of Rule of Evidence 702 are met,
removing the traditional discretion of trial courts to exclude the testimony.
6.

TCAP should not propose that the Bill Blackwood Law Enforcement Management
Institute develop a model policy and that law enforcement agencies be required to
adopt procedures that comply with the model policy.
If TCAP chooses to propose that the legislature delegate rulemaking authority to the Bill
Blackwood Institute, a number of procedural steps must be taken to properly implement
the regulatory authority of the Institute. Otherwise, the Institute would only be making
recommendations that would not be legally enforceable under the exclusionary rule of
Article 38.23.
a.

b.

The purported advantages of delegation are said to be:
i.

that it enables a timely response to updated research; greater flexibility
than legislative rulemaking process;

ii.

the Institute has experts available to draft procedures; and

iii.

these same experts would provide police training.

Countervailing Considerations:
i.

Best practices and scientific research have already become wellestablished. Major changes to best practices are highly unlikely. Only
minor changes may be required, and the legislature can make these.

ii.

If all departments are required to follow the procedures, it does not make
sense to change the rules regularly. Changes would require re-training.
There should be stability, and only important changes should be made.
Legislative rulemaking process can address the few, important changes as
needed.
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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

iii.

The Bill Blackwood Law Enforcement Institute is not a regulatory agency.
The Institute describes itself as a law enforcement training program:
The Bill Blackwood Law Enforcement Management Institute of Texas
(LEMIT) was created by the 70th Texas Legislature to develop the
administrative, analytical, and executive skills of current and future law
enforcement officials at no cost to either the participant or his/her agency.
Public administration, management issues, the political, legal, and social
environments of policing, and advanced technical issues are studied in
detail. It is the largest and most sophisticated statewide preparation
program for police management in the United States.
The Institute’s mission statement does not include acting as a regulatory
agency, but only as an educational organization:
OUR MISSION
We are committed to serving the law enforcement profession through
exceptional education, research, and training. Our aim is to inspire
excellence in management and leadership through personal and
professional development.

iv.

Under the TCAP proposal, the Institute would de facto be vested with new
rule-making authority since the proposed legislation would require all law
enforcement agencies to comply with the “model policy” of the Institute.
According to some members of TCAP, the “model policy” would have the
effect of law for purposes of the exclusionary rule in Article 38.23. Thus,
it is not accurate to call it a “model policy;” it would instead be a set of
legally-required procedures. Alternatively, if it is merely a “model
policy,” then it is not subject to Article 38.23. The courts would not
consider the police department’s guidelines based on the model policy to
be legally required. In that case, the legislature would have succeeded in
creating a wish list of procedures, but no actual enforceable rules.

v.

How will the individuals within the Institute who will have rule-making
authority be appointed? The legislature will need to specify how
individuals will be appointed to the new rule-making body within the
Institute. The Institute is not a politically accountable body, so the
legislature would need to implement the means for the participation of
individuals representing a variety of viewpoints and areas of expertise so
that the rulemaking process is not anti-democratic.

vi.

Will the legislature provide a time table for promulgating the rules?

vii.

Will the legislature provide the procedures by which the Institute will rule
make? Typically, notice and comment procedures are required for
administrative rulemaking. Notice and comment is standard in
administrative rulemaking legislation to give the public the opportunity to
take part in the rulemaking process. Is this contemplated, or will it be a
closed-door process with no system for input from outside the Institute?
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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

viii.

Since the Institute would be making legally enforceable rules for all Texas
police departments, the rules the Institute promulgates should be readily
available to the public by means of publication in the manner of statutes
and administrative rules. Specifically, the public should have access to the
rules online and in print form.

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Chapter 2: Recording Custodial Interrogations
Panel Recommendation
6. The State of Texas should adopt a mandatory electronic recording policy, from
delivery of Miranda warnings to the end, for custodial interrogations in certain
felony crimes. The policy should include a list of exceptions to recording and the
judicial discretion to issue a jury instruction in the case of an unexcused failure
to record.
Creating a complete, accurate, and reviewable document that captures the entirety of a
custodial interrogation will help prevent wrongful convictions. The Panel therefore recommends
that electronic recording be made mandatory in Texas for custodial interrogations in cases of
murder, capital murder, kidnapping, aggravated kidnapping, continuous sexual abuse of a child,
indecency with a child, sexual performance by a child, sexual assault, and aggravated sexual
assault.
The Panel also recommends that exceptions to electronic recording be allowed for good
cause, such as equipment malfunction, uncooperative witnesses, spontaneous statements, public
safety exigencies, or instances where the investigating officer was unaware that a crime that
required recorded interrogations had been committed. This takes into consideration the
contingencies that investigating officers may face when dealing with a witness or suspect in the
field.
The final recommendation from the Panel is that in instances where the Court determines
that unrecorded interrogations are not the result of good faith attempts to record or that none of
the exceptions to recording apply, the Court may deliver an instruction to the jury that it is the
policy of the State of Texas to record interrogations, and they may consider the absence of a
recording when evaluating evidence that arose from the interrogation.
Panel Report
Introduction
False confessions have contributed to wrongful convictions in Texas. 1 In order to assess
the adequacy of Texas statutes that govern statement evidence and to determine the best policy,
the Timothy Cole Advisory Panel on Wrongful Convictions examined the science behind false
confessions, recommended practices endorsed by a variety of criminal justice organizations, and
the policies adopted by U.S. and Texas jurisdictions. Based on this study, the Panel recommends
that Texas adopt a statewide policy to record interrogations in certain classes of crimes.
Texas Law
Statement evidence in Texas is regulated by Articles 38.21-.22 of the Texas Code of
Criminal Procedure. Statements may be used in court if they are “freely and voluntarily made
without compulsion or persuasion” 2 and follow the rules established in Miranda v. Arizona 3 and
1

See THE JUSTICE PROJECT. CONVICTING THE INNOCENT: TEXAS JUSTICE DERAILED: STORIES OF INJUSTICE AND THE
REFORMS THAT CAN PREVENT THEM (2009), available at http://www.thejusticeproject.org/wp-content/uploads/
convicting-the-innocent.pdf.
2
TEX. CODE CRIM. PROC. ANN. art. 38.21 (Vernon 2010).

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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

Art. 38.22. These rules require that the suspect be informed that he has the right to remain silent,
that any statement may be used in court, that he has the right to an attorney, and that he has the
right to end an interview at any time. Suspects must knowingly and voluntarily waive these
rights in order for an interview to commence. 4
Although the existing statutes provide that statements in certain situations be recorded,
the provisions differ significantly from the practices voluntarily adopted by many jurisdictions
within Texas and other states. First, audio and/or video recording under the existing statute is
only required for a statement—not a custodial interrogation. Second, recording is only required
in the case of oral or sign language statements, which are relatively rare. Law enforcement
agencies overwhelmingly rely on the written statements that are described in Art. 38.22 Sec. 1.
The Science of False Confessions
Post-conviction DNA testing has proven that people at times confess to crimes that they
did not commit. Scientists studying this phenomenon have documented, elicited, and
categorized the causes of false confessions.
Types of False Confessions
Researchers and theorists have classified the known cases of false confessions into three
types: voluntary, coerced-compliant, and coerced-internalized. 5 In a voluntary false confession,
an innocent person may offer a false confession without being questioned by investigators. The
two types of coerced confessions are elicited through the process of interrogation. In coercedcompliant false confessions, the suspect confesses for a functional purpose, such as to escape a
situation or avoid a threat. 6 Those who give coerced-internalized false confessions, however,
“come not only to capitulate in their behavior, but also to believe that they committed the crime
in question.” 7
Miranda Waivers
Most false confessions begin with a suspect who signs a Miranda waiver and agrees to be
interviewed by investigators without an attorney present. At some point during the interview the
investigators, convinced of the person’s guilt, switch to interrogation, refuse to accept a
statement of innocence, and instead pursue a confession until it is obtained. 8 Researchers have
concluded that innocent suspects may waive their right to counsel because they believe that since
they are innocent, they have nothing to hide.
Investigator Bias and Ability to Detect Deception
3

384 U.S. 436 (1966). See also Montejo v. Louisiana, 130 S. Ct. 23 (2009) (overruling Michigan v. Jackson, 475
U.S. 625 (1986), which sought to assure that the right to counsel is not lost during police interrogation); Berghuis v.
Thompkins, 130 S. Ct. 2250 (2010) (ruling that a suspect must vocalize his or her wish to remain silent).
4
Miranda, 294 U.S. at 475.
5
Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature and Issues, 5
PSYCHOL. SCI. PUB. INT. 33, 49 (reviewing the types and theories of false confessions). No Texas DNA exoneration
cases that involved false confessions were related to voluntary confessions; all were coerced, but the record does not
indicate whether any of the false confessions were internalized. See THE JUSTICE PROJECT, supra note 3.
6
Kassin & Gudjonsson, supra note 6, at 49.
7
Id. at 50.
8
See Steven A. Drizin & Richard A. Leo. The Problem of False Confessions in the Post-DNA World, 82 N.C. L.
REV. 891, 911 (2004).

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Numerous studies demonstrate that investigators enter interviews with a presumption of
the suspect’s guilt. 9 One such study concluded that “interrogators saw themselves as the most
aggressive when they interviewed suspects who—unbeknownst to them—were truly innocent.” 10
These findings illustrate that an innocent suspect’s decision to waive Miranda rights may result
in a particularly aggressive interrogation, increasing the likelihood of a false confession.
Studies have also tested the ability to detect deception. Research indicates that people
are poor judges of deception, in part because “people who stand falsely accused of lying often
exhibit patterns of anxiety and behavior that are indistinguishable from those who are really
lying.” 11 Studies have also shown trained investigators are no more accurate in judging the
veracity of confessions than untrained college students, yet act with significantly more
confidence. 12
Traits, Techniques, and Theories of False Confessions
There are a variety of factors that contribute to whether or not an innocent individual will
make a false confession. These include youth, low intelligence or developmental or intellectual
disability, and mental illness; psychological factors such as sleep deprivation and drug use or
withdrawal; as well as personality variables such as antisocial tendencies, anxiety, depression,
compliance, suggestibility, and low self esteem. 13 In addition to personal traits and
interrogations techniques, theories of false confession indicate that the psychoanalytic
perspective, 14 the decision-making model, 15 the cognitive-behavior perspective, 16 and cultural
considerations 17 each may contribute to false confessions.
False Confessions and Wrongful Conviction
A large proportion of documented false confessions from across the nation have come
from suspects who were young, including 35 percent under age 18 and more than half under age
25. 18 Those who provided false confessions were also subjected to lengthy interrogations. More
than 90 percent of normal interrogations last less than two hours, but in 44 studied cases of false
confessions, 84 percent lasted more than six hours, with two lasting between 48 and 96 hours.
Further, confessions have a significant impact on jury verdicts and sentencing. Studies have

9

See, e.g., Saul M. Kassin, et al., Behavioral Confirmation in the Interrogation Room: On the Dangers of
Presuming Guilt, 27 LAW & HUM. BEHAV. 187 (2003).
10
Id. at 194.
11
Saul M. Kassin & Christina T. Fong, “I’m Innocent!”: Effects of Training on Judgments of Truth and Deception
in the Interrogation Room, 23 LAW & HUM. BEHAV. 499, 501 (1999).
12
Saul M. Kassin, et al., “I’d Know a False Confession if I Saw One”: A Comparative Study of College Students
and Police Investigators, 29 LAW & HUM. BEHAV. 211 (2005); Christian A. Meissner & Saul M. Kassin, “He’s
Guilty!”: Investigator Bias in Judgments of Truth and Deception, 26 LAW & HUM. BEHAV. 469 (2002).
13
Jessica R. Klaver, et al., Effects of Personality, Interrogation Techniques, and Plausibility in an Experimental
False Confession Paradigm, 13 LEGAL & CRIMINOLOGICAL PSYCHOL. 71, 72 (2008).
14
Kassin & Gudjonsson, supra note 6, at 45.
15
Id.
16
Id. at 46.
17
See Richard A. Leo, et al., Chapter 2: Psychological and Cultural Aspects of Interrogations and False
Confessions: Using Research to Inform Legal Decision-Making, in 2 PSYCHOLOGICAL EXPERTISE IN COURT:
PSYCHOLOGY IN THE COURTROOM 25 (Daniel A. Krauss & Joel D. Lieberman, eds., 2009).
18
Drizin & Leo, supra note 8, at 945.

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found that confession evidence has a greater impact on jurors and is seen as having a greater
impact by jurors than any other type of evidence. 19
Organizations’ Recommended Practices
Based on the body of research that has been done, legal scholars and associations, law
enforcement organizations, and policy organizations have made recommendations to reduce the
likelihood that suspects will be wrongfully convicted of crimes to which they falsely confess. By
far, the most common recommendation has been to record interrogations from the time a suspect
is read his Miranda rights through the end.
Legal scholars have long called for complete documentation of interrogations through
audio and/or video recording because “it favors neither the defense nor the prosecution but only
the pursuit of reliable and accurate fact-finding.” 20 Taping also lends transparency to the
process, which leads to better interrogation practices. 21 Finally, scholars argue that recorded
interrogations allow judges and juries to better gauge the reliability of confession evidence.
Both professional and policy organizations also recommend complete recording of
interrogations. Among these organizations are the American Law Institute, 22 the New York
County Lawyers’ Association, 23 the American Bar Association Section of Criminal Justice, 24 the
National Association of Criminal Defense Lawyers, 25 state bar associations in Michigan 26 and
New York , 27 The Justice Project, 28 and the Chicago Tribune. 29
Perhaps the most ringing endorsement for recording interrogations comes from the
hundreds of jurisdictions around the country that already record complete interrogations. A
survey found that almost 2400 police and sheriffs’ departments videotaped interrogations in at
least some cases, with 84 percent believing that videotaping improved the quality of police
interrogations. 30 A study of the law enforcement perspective on the practice found that
19

Saul M. Kassin & Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the
Fundamental Difference Hypothesis, 21 LAW & HUM. BEHAV. 469, 481 (1997).
20
Id. at 995.
21
Id. at 997.
22
MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE (1975), available at http://www.nacdl.org/sl_docs.nsf/
a1bf9dda21904164852566d50069b69c/e1a4d2c7cf86cbed852570820072a805/$FILE/ALI-Model_Recording_Code1975.pdf.
23
The N.Y. County Lawyers’ Ass’n & A.B.A. Section of Criminal Justice, Report to the House of Delegates 15,
available at http://www.abanet.org/crimjust/policy/revisedmy048a.pdf.
24
Id.
25
Nat’l Ass’n of Criminal Def. Lawyers, Resolution of the Board of Directors Supporting Mandatory Videotaping
of Law Enforcement Interrogations (May 4, 2002), available at http://www.nacdl.org/public.nsf/resolutions/
7cac8b149d7416a385256d97005.
26
State Bar of Michigan. Revised Resolution (September 21, 2005), available at http://www.michbar.org/
generalinfo/pdfs/ 9-22Custodial2.pdf.
27
New York State Bar Association. Memorandum No. 11 (June 13, 2007), available at http://www.nysba.org/
AM/Template.cfm?Section=Home&section=Legislative_Memoranda_2007_2008&template=/CM/ContentDisplay.c
fm&ContentFileID=2009.
28
THE JUSTICE PROJECT. ELECTRONIC RECORDING OF CUSTODIAL INTERROGATIONS: A POLICY REVIEW (2009),
available at http://www.thejusticeproject.org/wp-content/uploads/polpack_recording-fin2.pdf.
29
Editorial, No More Excuses. Go to the Tape, CHI. TRIB., Apr. 21, 2002, at C6.
30
William A. Geller, Videotaping Interrogations and Confessions, NATIONAL INSTITUTE OF JUSTICE: RESEARCH IN
BRIEF, March 1993.

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“virtually every officer who has had experience with custodial recordings enthusiastically favors
the practice.” 31
Recording in the States and Texas
To date, 17 states and the District of Columbia record interrogations as either a result of
statutory law 32 or court rulings. 33 In contrast to Texas, each of these states requires audio and/or
video recording of interrogations from the reading of Miranda rights through any confession that
is given. In addition, some states have spelled out exceptions to recording in order to meet the
needs of local authorities and provide remedies when there is a failure to comply.
Although not required by statute, many Texas jurisdictions record interrogations, at least
in some classes of offenses. Three hundred and eighty of 441 departments who participated in a
survey “indicated that they either routinely record custodial interrogations, record interrogations
for certain classes of felonies, or record interrogations at the discretion of the lead
investigator.” 34 These jurisdictions have found that the practice of recording custodial
interrogations lends a variety of benefits to the officers, the defendant, and the prosecution, and it
has not been cost-prohibitive for these departments. Communication with Dallas and Alpine
Police Departments, for example, indicate that rooms may be outfitted for recording
interrogations at a cost of $500 to $600 per room. 35
In addition, a review of the recording policies of the largest counties and municipalities
indicated that over half provided no written policies or procedures on electronic recording of
custodial interrogations beyond statutory requirements. By contrast, policies for departments in
Amarillo, Austin, Corpus Christi, Dallas, El Paso, Houston, Irving, Pasadena, and San Antonio
provide for more robust recording of interrogations. Although false confessions may never be
completely eradicated from criminal investigations due to personal or situational factors,
statewide policies can be adopted to guide law enforcement, judges, and juries on the best
methods to document and preserve confessions in the context in which they were elicited.

31

THOMAS SULLIVAN, POLICE EXPERIENCES WITH RECORDING CUSTODIAL INTERROGATIONS 6 (Nw. U. Sch. of L.
Center on Wrongful Convictions 2005), available at http://www.law.northwestern.edu/wrongfulconvictions/issues/
causesandremedies/falseconfessions/SullivanReport.pdf.
32
D.C. CODE § 5-116.01 (2010) (District of Columbia); 725 ILL. COMP. STAT. 5/103-2.1 (2010) (Illinois); ME. REV.
STAT. ANN. tit. 25, § 2803-B(I)(K) (2010) (Maine); MD. CODE ANN., [Crim. Proc.] § 2-401 (LexisNexis 2010)
(Maryland); MO. REV. STAT. § 590.701 (2010) (Missouri); MONT. CODE ANN. § 46-4.4 (2010) (Montana); NEB.
REV. STAT. § 29-4501 (2010) (Nebraska); N.M. STAT. ANN. § 29-1-16 (West 2010) (New Mexico); N.C. GEN. STAT.
§ 15A-211 (2010) (North Carolina); OHIO REV. CODE ANN. § 2933.81 (LexisNexis 2010) (Ohio); OR. REV. STAT. §
419C.270 (2010) (Oregon); WIS. STAT. ANN. § 972.115 (West 2010) (Wisconsin).
33
N.J. SUP. CT. RULE 3.17 (2005); Stephan v. State, 711 P.2d 1156, 1162 (Alaska 1985); State v. Hajtic, 724
N.W.2d 449, 456 (Iowa 2006); Commonwealth v. Digiambattista, 442 Mass. 423 (2004); State v. Scales, 518 N.2d
587, 591 (Minn. 1994); State v. Barnett, 147 N.H. 334 (2001).
34
THE JUSTICE PROJECT. ELECTRONIC RECORDING OF CUSTODIAL INTERROGATIONS IN TEXAS: A REVIEW OF
CURRENT STATUTES, PRACTICES, AND POLICIES (2009), available at http://www.thejusticeproject.org/wpcontent/uploads/tx-recording-report-tjp-may-2009.pdf.
35
E-mail from Edwin Colfax, Texas Policy Director, The Justice Project, to Lieutenant Losoya, Alpine, Texas
Police Department (Aug. 2, 2010) (on file with Texas Task Force on Indigent Defense). E-mail from Edwin Colfax,
Texas Policy Director, The Justice Project, to Jennifer Willyard, Grant Program Specialist, Texas Task Force on
Indigent Defense (Aug. 2, 2010) (on file with Texas Task Force on Indigent Defense).

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Chapter 3: Discovery Procedures
Panel Recommendation
Texas’ discretionary discovery policy has left the state with a wide variance in practices,
where the quality of defense, investigation, and preparation is at least partially dependent upon
geography. All other factors being equal, cases in two counties may have different outcomes due
to the timing, manner, and nature of materials that are—or are not—exchanged through
discovery. This result is contrary to the general premise of discovery, which is to encourage
case investigation and preparation, to support efficient resolution of cases where the facts are not
disputed, and, where the facts are disputed, to ensure that those facts are fairly presented to the
ultimate factfinder—the judge or jury. To achieve those goals, the defense should have the
opportunity to review and test the evidence that the prosecution would use to convict and
sentence, and the prosecution should have the opportunity to obtain certain information from the
defense that will enable the prosecutor to carry out his or her duty “not to convict, but to see that
justice is done.” 1
7. The State of Texas should adopt a statewide discovery policy that is mandatory,
automatic, and reciprocal, and requires either electronic access to or photocopies
of materials subject to discovery.
Texas is in the distinct minority when it comes to limiting discovery in criminal cases; as
explored below, many states and the federal courts currently operate under a system in which the
prosecution and the defense must share information, reports, witness statements, witness lists,
and more with the other party before trial. As such, the Panel agrees that Texas law should align
with the prevailing trend in criminal discovery by mandating reciprocal discovery in criminal
cases. The Panel further recommends that in accordance with policy that best prevents wrongful
convictions, either photocopying of, or electronic access to, discoverable materials be required.
Panel Report
Introduction
One of the most important ways that jurisdictions can provide for effective counsel is to
adopt discovery policies that allow the defense early and complete access to essential documents
in the case against the defendant. Without access to offense and expert reports until the time of
trial, the ability for defense counsel to provide a meaningful defense is diminished. Although
discovery policies cannot completely guard against ineffective assistance of counsel claims, they
set the foundation for a quality and meaningful defense.
Discovery as a component of effective counsel is especially important in helping to guard
against wrongful convictions. A relationship between discovery and wrongful conviction is
sometimes difficult to ascertain at first glance, but “[t]he record of wrongful convictions has
demonstrated that exculpatory evidence can be withheld for years, even decades, while an
innocent person sits in prison.” 2 In fact, seven of Texas’ first thirty-nine DNA exonerations
1

TEX. CODE CRIM. PROC. ANN. art. 2.01 (Vernon 2010).
THE JUSTICE PROJECT. CONVICTING THE INNOCENT: TEXAS JUSTICE DERAILED: STORIES OF INJUSTICE AND THE
REFORMS THAT CAN PREVENT THEM 11 (2009), available at http://www.thejusticeproject.org/wp-content/ uploads/
convicting-the-innocent.pdf.
2

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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

involved suppression of exculpatory evidence or other prosecutorial misconduct. 3 This statistic
includes the case of Timothy Cole, whose defense counsel was never informed that only one
victim chose Cole out of a photo lineup as the perpetrator of a rape on the Texas Tech campus.
Although the Supreme Court’s decision in Brady v. Maryland 4 provides defendants with
a constitutional right of access to exculpatory information held by the State and in the possession
of law enforcement, it is an insufficient tool to prevent wrongful convictions because Brady
complaints are made post-conviction. Since a wrongful conviction cannot be retroactively
prevented once it has already occurred, 5 other means of prevention must be explored. One way
to reduce the potential for errors is to increase the scope of discovery, the process of pre-trial
information exchange between prosecution and defense.
Brady and Criminal Discovery Procedures in Texas
The Supreme Court ruled in Brady v. Maryland that defendants have a constitutional
right to any evidence the State may have in its possession that tends to exculpate the defendant.
Brady, however, does little to prevent wrongful conviction of the innocent because the burden to
determine what constitutes exculpatory information rests with prosecutors, who do not construct
theories of the case for the defense. This has led some observers to argue that Brady is
incompatible with an adversarial system because prosecutors and defense attorneys have
fundamentally opposing positions, the Brady holding provides for only weak enforcement, it
excludes incriminating evidence (which is much more common that exculpatory evidence), it is
poorly suited to plea bargaining 6 and informant testimony, 7 and it requires misconduct on the
part of the state rather than innocence of the defendant. 8
As mentioned above, Brady is an inefficient tool to prevent wrongful conviction because
Brady motions are not raised until after a defendant has been convicted of a crime and new
evidence that was in the possession of the prosecution comes to light. Therefore, by definition, it
cannot prevent wrongful conviction before it happens. Additionally, the standards of review are
complex, as a Brady claim requires judges to weigh materiality and relevance. These factors are
difficult to measure separately, so judges often attempt to address whether the “evidence in
question [would] have changed the outcome of the trial.” 9 The difficulty in making this decision

3

Id.
373 U.S. 83 (1963). For holdings that helped to further define Brady obligations, see United States v. Agurs, 427
U.S. 97 (1976); Moore v. Illinois 408 U.S. 786 (1972); Giglio v. United States, 405 U.S. 150 (1972); Giles v.
Maryland, 386 U.S. 66 (1967).
5
See Jenny Roberts, Too Little, Too Late: Ineffective Assistance of Counsel, the Duty to Investigate, and Pretrial
Discovery in Criminal Cases, 31 FORDHAM URB. L.J. 1097 (2004).
6
See Stephanos Bibas, The Story of Brady v. Maryland: From Adversarial Gameship Toward the Search for
Innocence? in CRIMINAL PROCEDURE STORIES 129, 149 (Carol Steiker ed., 2005); John D. Douglas, Can
Prosecutors Bluff? Brady v. Maryland and Plea Bargains, 57 CASE W. RES. L. REV. 581 (2007); Lee Sheppard,
Disclosure to the Guilty Pleading Defendant: Brady v. Maryland and the Brady Trilogy, 72 J. CRIM. L. &
CRIMINOLOGY 165 (1981).
7
See Giglio, 405 U.S. 150 (1972); Note, A Prosecutor’s Duty to Disclose Promises of Favorable Treatment Made to
Witnesses for the Prosecution, 94 HARV. L. REV. 887 (1981); Peter A. Joy, Brady and Jailhouse Informants:
Responding to Injustice, 57 CASE W. RES. L. REV. 619 (2007).
8
Bibas, supra note 6.
9
Victor Bass, Brady v. Maryland and the Prosecutor’s Duty to Disclose, 40 U. CHI. L. REV. 112, 126 (1972).
4

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“is exacerbated by the fact that the trial may have been distorted by the defendant’s inability to
use the suppressed evidence to prepare.” 10
Criminal Discovery Procedures in Texas
Texas discovery is controlled by Article 39.14 of the Texas Code of Criminal
Procedure. 11 Article 39.14 does not mandate automatic defense access to police reports and
witness statements, and there is no provision specifically allowing the defense to obtain copies of
these items. Rather, defense counsel is required to file motions to request access to basic case
information, including offense reports and expert reports. In order to receive the requested
access, the defense must make a showing of “good cause.” 12
There is no certification process or specified timelines for either party, with the exception
of the disclosure of expert witnesses. In some local jurisdictions, defense counsel is only
permitted to make notes about items in the prosecution’s file. In addition, the prosecution does
not have access to reciprocal discovery. Unlike many other states, Texas law provides no formal
rules for case conferences, wherein the prosecution, defense, and judge meet to discuss the
evidence that is available and will be presented at trial. Article 39.14 does not define
“exculpatory evidence” to guide the prosecution in what material is subject to discovery
obligations. Therefore, although Texas does have a criminal discovery statute, policy groups and
practitioners argue that the statutes are “so minimal that they fail to guarantee the opportunity for
evidence to be fully investigated and meaningfully challenged.” 13
Texas case law has further held that the trial court must allow discovery of evidence that
is shown to be material to the defense of the accused, 14 but no general right to discovery exists. 15
Instead, the decision as to what is discoverable rests with the discretion of the trial court. 16 To
determine materiality, the omission is evaluated in the context of the entire record, and error is
found only if the omitted evidence creates a reasonable doubt that did not otherwise exist. As
with other avenues reviewed in this section, existing Texas case law may not provide an effective
means to prevent wrongful convictions of the innocent due to suppression of exculpatory
evidence. The existing statute provides little direction to the courts and has been interpreted to
leave discretion with prosecutors and trial courts. The end result has been a wide range of
discovery practices and policies across the state that may or may not provide meaningful
protection to innocent suspects under investigation for crimes they did not commit.
Organizations’ Recommended Practices
The American Bar Association’s (ABA) Standards for Criminal Justice: Discovery and
Trial by Jury address the general principles of discovery, the obligations of the prosecution and

10

Id.
TEX. CODE CRIM. PROC. ANN. art. 39.14 (Vernon 2010).
12
Id.
13
THE JUSTICE PROJECT, supra note 1, at 11.
14
See, e.g., Massey v. State, 933 S.W.2d 141, 153 (Tex. Crim. App. 1996).
15
See, e.g., Kinnamon v. State, 791 S.W.2d 84, 91 (Tex. Crim. App. 1990); Whitchurch v. State, 650 S.W.2d 422,
425 (Tex. Crim. App. 1983).
16
See Whitchurch, 650 S.W.2d at 425.
11

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defense, special procedures, timing and manner of disclosure, depositions, general provisions,
and sanctions if discovery rules are not properly implemented. 17
Timing Although the ABA standards outline no specific time requirement within which
discovery should be completed, the standards encourage discovery “as early as practicable in the
process.” 18 The ABA recommends that each jurisdiction adopt time limits and notes that the
prosecution should first disclose discoverable materials. 19 Under the ABA standards, parties
operate under a “continuing obligation to produce discoverable materials to the other side.” 20
Obligations of the Prosecution and Defense The ABA standards specifically state that
the prosecution should “permit inspection, copying, testing, and photographing” of any statement
from the defendant or codefendant; names, addresses, and written statements of witnesses; any
inducements for cooperation between the prosecution and the witness; written statements from
experts; any tangible objects that pertain to the case; any record of previous criminal history;
information related to any identification procedures conducted; and any material that tends to
negate or mitigate the guilt of the defendant. 21 In addition, the defense should be informed of
character evidence, evidence gathered through electronic surveillance, and information or
documentation of the acquisition of evidence gathered through search and seizure. 22
The ABA standards promote reciprocal discovery and suggest a more limited list of
defense materials to be shared with the prosecution. These include the names and addresses of
all witnesses that will be called at trial; any expert reports or written statements; and any tangible
objects that will be introduced as evidence at trial. 23 The standards also recommend discovery of
character evidence not relating to the defendant and the names and addresses of witnesses who
will be asked to support an alibi or insanity defense. 24
Additional Recommendations The ABA standards also address where counsel must
search for discoverable information. The standards extend the obligation of the prosecutor and
defense attorney “to material and information in the possession or control of members of the
attorney’s staff and of any others who either regularly report to or, with reference to the
particular case, have reported to the attorney’s office.” 25 This applies the standards to not only
prosecutors and defense attorneys, but also to investigators, previous attorneys, and other staff.
Sanctions Should a party fail to fulfill discovery obligations, the ABA recommends one
of the following actions on behalf of the court: order the noncomplying party to permit the
discovery of the material and information not previously disclosed; grant a continuance; prohibit
the party from calling a witness or introducing into evidence the material not disclosed, subject
to the defendant’s right to present a defense and provided that the exclusion does not work an
injustice either to the prosecution or the defense; and/or enter such other order as it deems just

17

A.B.A. STANDARDS FOR CRIMINAL JUSTICE: DISCOVERY AND TRIAL BY JURY (3d ed., 1995).
Id. § 11-4.1(a).
19
Id. § 11-4.1(b).
20
Id. § 11-4.1(c).
21
Id. § 11-2(a).
22
Id. § 11-2.1(b) to (d).
23
Id. § 11-2.2(a).
24
Id. § 11-2.2(b) to (c).
25
Id. § 11-4.3(a).
18

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Timothy Cole Advisory Panel on Wrongful Convictions: Report and Recommendations

under the circumstances. 26 The standards also recommend that the court may find counsel in
contempt if it is revealed that she “willfully violated a discovery rule or order.” 27
While not included in the ABA standards, the subject of certification has been addressed
by advocacy groups such as The Justice Project. The organization recommends that “a discovery
certificate should be filed by the District Attorney’s office with the court during pretrial
procedures, and should specify when evidence was exchanged and by what method of
delivery.” 28 This type of certification creates a court record stating that both defense and
prosecution have fulfilled their discovery responsibilities, provides documentation of information
received from third parties, and makes it more difficult for evidence to be willfully suppressed. 29
Recommended Practices and the States
Only five states have discovery provisions that are equivalent in scope to the current
ABA standards. 30 The majority of the remaining states have standards more in line with either
Federal Rule 16 31 (providing the most limited discovery) or some area in between the two
standards. 32 Current Texas law, however, is considerably more restrictive than Federal Rule 16.
Analysis and Evaluation
A comprehensive review of state discovery policies was conducted in 2004 by the
Federal Judicial Center (FJC). 33 The organization surveyed all fifty states and the District of
Columbia and found a patchwork of different policies across the nation.
FJC found that “all fifty states and the District of Columbia address the prosecutor’s
obligation to disclose information favorable to the defendant,” 34 but that is where the similarities
end. The states differ in how Brady material is defined, 35 whether discovery is mandatory, 36 the
timing of discovery, 37 certification of complete discovery, 38 sanctions, 39 and whether
suppression of exculpatory evidence constitutes a violation of due process. 40
Texas consistently falls into the narrowest category of discovery policies. Texas requires
a written discovery motion, and is also one of only ten states that places additional conditions on
discovery and requires the defendant to demonstrate that the materials are necessary to the
preparation of the defense or “show ‘good cause.’” 41

26

Id. § 11-7.1(a).
Id. § 11-7.1(b).
28
THE JUSTICE PROJECT, EXPANDED DISCOVERY IN CRIMINAL CASES: A POLICY REVIEW 6 (2007).
29
Id. at 3, 6.
30
WAYNE R. LAFAVE, ET AL., CRIMINAL PROCEDURE § 20.2(b) & n.34 (3d ed. 2009).
31
Bibas, supra note 6, at 16 (reviewing FED R. CRIM. P. 12.1-2, 16(a)(1), 16(b), 16 advisory committee’s note).
32
LaFave et al., supra note 30, § 20.2(b).
33
LAURAL L. HOOPER, ET AL., TREATMENT OF BRADY V. MARYLAND MATERIAL IN UNITED STATES DISTRICT AND
STATE COURTS’ RULES, ORDERS, AND POLICIES (Federal Judicial Center 2004).
34
Id. at 17.
35
Id. at 18-19
36
Id. at 23.
37
Id. at 26.
38
Id. at 27.
39
Id. at 27-28.
40
Id. at 18.
41
TEX. CODE CRIM. PROC. ANN. art. 39.14 (Vernon 2010), quoted in id. at 23.
27

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Expanded discovery procedures are consistently recognized as an area of Texas law in
which reform is needed. Several Texas counties, however, are leading the way to modernize
discovery procedures and broadening defense access to evidence; some point to Tarrant County's
system as a model for the state. 42 Tarrant County’s open file discovery utilizes an electronic
case filing system to manage the discovery process.

42

Alex Branch, Tarrant County’s Electronic Open-File System Seen as Gold Standard for Reducing Wrongful
Convictions, FORT WORTH STAR TELEGRAM, March 18, 2010.

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Chapter 4: Post-Conviction DNA Testing and Writs of Habeas Corpus Based
On Changing Science
Panel Recommendations
In the areas of post-conviction DNA testing and writs of habeas corpus based on changing
science, the Timothy Cole Advisory Panel on Wrongful Convictions recommends the following:
8. The State of Texas should amend the Chapter 64 motion for post-conviction DNA
testing to allow testing of any previously untested biological evidence, regardless of
the reason the evidence was not previously tested, or evidence previously tested
using older, less accurate methods.
The Panel reached consensus that the language proposed in SB 1864 during the 81st
Legislative Session would make needed adjustments and improvements to the existing statute
(see Appendix F in Research Details).
9. The State of Texas should amend the Chapter 11 writs of habeas corpus to include a
writ based on changing scientific evidence.
The Panel agreed that a writ of the type proposed in SB 1976 during the 81st Legislative
Session would provide meaningful access to the courts to those with claims of actual innocence
following a conviction based on science that has since been falsified (see Appendix G in
Research Details). Creation of a dedicated writ and procedure will allow those with claims to be
heard without opening all convictions up to scrutiny. The Panel believes this is a valuable
reform for the criminal justice system in Texas.
Panel Report
Introduction
To date in Texas, 41 people have been exonerated of crimes for which they were
convicted after post-conviction DNA testing revealed that they were not the true perpetrators of
those crimes. One of the lessons we can learn from the wrongful convictions revealed through
DNA testing is that post-conviction access to DNA and other forensic tests are an important and
meaningful way to ensure the integrity of our criminal justice system and to see that justice is
done for victims of crime and the wrongfully convicted.
Texas Law
Post-conviction DNA testing is controlled by Chapter 64 of the Texas Code of Criminal
Procedure. The statute allows those who have been convicted of crimes to petition the court for
DNA tests to be performed on biological material that was not previously subjected to DNA
testing through no fault of the convicted person because DNA testing 1) was not available, 2)
was available but not technologically capable of providing probative results, or 3) has improved
so that material can be tested using more accurate and probative testing methods. 1
Those who have claims of wrongful conviction based on other types of forensic error
apart from DNA testing (e.g. bullet lead comparison, arson investigation, or dog scent evidence)
1

TEX. CODE CRIM. PROC. ANN. art. 64.01 (Vernon 2010).

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may petition the court with a writ of habeas corpus as defined in Article 11.07 of the Code of
Criminal Procedure for those who have not been sentenced to death, and Article 11.071 for those
who have been sentenced to death. Specifically, 11.07 states that “it shall be the duty of the
convicting court to decide whether there are controverted, previously unresolved facts material to
the legality of the applicant's confinement.” 2 If it is found that there are, “the court may order
affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using
personal recollection” 3 to resolve those issues.
Organizations’ Recommended Practices
In 1999, under the leadership of Attorney General Janet Reno, the National Commission
on the Future of DNA Evidence released its publication, Postconviction DNA Testing:
Recommendations for Handling Requests. In it, the group outlined five categories of cases that
contain claims of actual innocence and request DNA testing and suggested responses for each
category. The group’s range of recommendations included granting tests in cases where DNA
was collected, still exists, and will provide exclusionary results, to rejecting requests when
frivolous. Regardless of whether the categories should be considered as “hard and fast” rules,
the group offered additional recommendations for prosecutors, defense counsel, the judiciary,
victim assistance, and lab personnel regarding post-conviction DNA testing that emphasized
communication between all parties.
Post-conviction DNA testing guidance is provided by the American Bar Association in
two documents. 4 In Resolution No. 115, the ABA states that “all biological evidence should be
made available to defendants and convicted person upon request and, in regard to such evidence,
such defendants and convicted persons may seek appropriate relief notwithstanding any other
provision of law.” 5 Standard 16-6.1 further states that those who have been convicted of serious
crimes should be granted post-conviction DNA tests if testing that was unavailable at the time of
the trial has become available or there is reason to believe that the testing conducted at trial is
now unreliable. 6
Recommended Practices Specific to Texas Law
During the last legislative session in 2009, two bills were introduced to increase postconviction access to the courts. The first bill, SB 1864, 7 would have amended §64.01, the
motion for post-conviction DNA testing, to provide “that a motion could be made for DNA
testing if the material was not previously subjected to testing, no matter the reason testing was
not done, if the other stated conditions were met.” 8 Supporters of the bill argued that this change
was necessary because although “current law provides that untested material can be tested if it is
2

TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3(c) (Vernon 2010).
Id. § 3(d).
4
For information on the ABA’s recommendations on post-conviction matters, see ABA STANDARDS FOR CRIMINAL
JUSTICE, POSTCONVICTION REMEDIES (2d ed., 1978), available at http://www.abanet.org/crimjust/
standards/postconviction_toc.html; see also ABA STANDARDS FOR CRIMINAL JUSTICE, DNA EVIDENCE § 16-6.1
cmt. (3d ed., 2006) (quoting ABA House of Delegates Resolution No. 115 (August 2000)), available at
http://www.abanet.org/crimjust/standards/ dnaevidence.pdf.
5
ABA STANDARDS FOR CRIMINAL JUSTICE, DNA EVIDENCE, supra note 6.
6
Id. § 16-6.1(a)(i)
7
Tex. S.B. 1864, 81st Leg., R.S. (2009) (authored by Sen. Rodney Ellis and sponsored by Rep. Scott Hochberg).
8
House Research Org., Bill Analysis, Tex. S.B. 1864, 81st Leg., R.S. at 2 (2009), available at
http://www.hro.house.state.tx.us/pdf/ba81r/sb1864.pdf#navpanes=0.
3

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in the interests of justice. . . [,] an unsympathetic judge still could deny the motion, even where
material went untested due to failure on the part of the defense attorney rather than the
defendant.” 9
A second bill from the 81st legislative session, SB 1976, would have addressed those who
had been convicted of crimes using science that had since been discredited. 10 According to the
House Research Organization, the bill “would authorize courts to grant relief on writs of habeas
corpus that, subject to criteria in the bill, raised relevant scientific evidence that was not available
at the time of a trial or that discredited scientific evidence relief on by the prosecution at a
trial.” 11 The language also provided that petitioners could file this writ even if a previous writ of
habeas corpus had been made. This provision is important because many writs of habeas corpus
“are filed without an attorney or soon after a conviction.” 12 Without the ability to file a writ that
is based on science, inmates may lose the opportunity to demonstrate that the science that
convicted them previously has since been disproved.
After reviewing the recommendations from national and state leaders, the Panel agreed
that the provisions laid out in the 81st Legislature represent sound post-conviction policy for the
State of Texas.

9

Id.
See Tex. S.B. 1976, 81st Leg., R.S. (2009) (authored by Sen. John Whitmire and co-authored by Sen. Juan
Hinojosa). See also Tex. H.B. 3579, 81st Leg., R.S. (2009) (companion bill, authored by Rep. Pete Gallego, who
also sponsored the Senate bill). Although the bill received unanimous passage from both the Senate Criminal
Justice and House Criminal Jurisprudence committees, there was one witness who testified against the bill (Harris
County District Attorney’s Office) and one who registered against the bill (Lubbock County District Attorney’s
Office) during the Senate committee hearing. Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 1976,
81st Leg., R.S. (2009). There was no opposition to the bill during the House committee hearing. . House Comm.
on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 3579, 81st Leg., R.S. (2009).
11
House Research Org., Bill Analysis, Tex. S.B. 1976, 81st Leg., R.S. at 2 (2009), available at
http://www.hro.house.state.tx.us/pdf/ba81r/sb1976.pdf#navpanes=0.
12
Id. at 3.
10

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Chapter 5: Feasibility of Establishing an Innocence Commission
Panel Recommendations
10. The State of Texas should formalize the current work of the innocence projects that
receive state funding to provide further detail in the projects’ annual reports and
distribute those reports to the Governor, Lieutenant Governor, Speaker of the
House, and Chairs of the Senate Jurisprudence, House Corrections, House Criminal
Jurisprudence and Senate Criminal Justice Committees. Report input should be
solicited from other innocence projects, interested bar associations, judicial entities,
law enforcement agencies, prosecutor associations, and advocacy organizations.
The Panel recommends that the annual reports currently filed with the Task Force on
Indigent Defense by each innocence project be filed jointly and amended to include analysis of
the requests and cases received, investigated, and litigated to identify any systemic criminal
justice issues that are revealed by claims of actual innocence. The Panel further recommends
that this report be presented to the Governor, Lieutenant Governor, Speaker, and committees,
along with input from other innocence projects, interested bar associations, judicial entities, law
enforcement agencies, prosecutor associations, and advocacy organizations. The report may
address such topics as showups and informant testimony.
11. The State of Texas should provide an FTE for the Task Force using the current
appropriation or other grant funding to administer these responsibilities, and
contracts between the innocence projects and the Task Force on Indigent Defense
should be amended to reflect the new administrator and additional responsibilities.
Because the innocence projects are located in geographically diverse areas and have
many responsibilities to their students and the cases they investigate, the Panel recommends that
a full-time employee position be created that is dedicated to the coordination and administration
of the innocence projects. This FTE will further help the innocence projects meet the
recommendations listed above and serve to organize and audit the funding received from the
Task Force.
Panel Report
Introduction
The possibility of establishing an innocence commission in Texas has been under
consideration for several years, with legislation filed in however many sessions. Questions have
concerned how to establish a commission; the makeup of the commission and method of
appointment; the duties, power, and independence of a commission; and the quantity and source
of funding needed to create and sustain a commission. Several states have established innocence
commissions under a variety of formats to achieve these ends. For example, study commissions
like the Timothy Cole Advisory Panel on Wrongful Convictions have been created in California,
Connecticut, Illinois, North Carolina, Pennsylvania and Wisconsin. North Carolina additionally
created an innocence commission to investigate claims of wrongful conviction. The Panel
reviewed the approaches taken by other states and countries in order to determine if an innocence
commission is feasible for the State of Texas. Following a workgroup meeting with
representatives from the innocence projects, the Panel recommends formalization of the work
already underway by innocence projects.
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Study Commissions
As noted above, several states have passed legislation creating commissions to study the
causes of wrongful conviction and recommend policies to prevent those errors in the future. One
advantage of study commission is that, like innocence commissions, they are comprised of a
wide variety of criminal justice stakeholders including judges, academic researchers, prosecutors
and defense attorneys, law enforcement, spiritual and other community leaders, representatives
for governors’ and attorneys general offices, or state legislators. This helps to ensure that the
recommendations are based on the broadest level of consensus possible and that those who have
the power to implement those changes are party to the research and recommendation process.
Another benefit is that study commissions are inexpensive. As the Innocence Project stated,
participation in a study commission is often “consistent with most members’ existing work, and
in many cases can simply be an extension of their existing jobs.” 1
A disadvantage of the study commission method is that it is generally a one-shot
approach to wrongful conviction reform because study commissions are sometimes created to
expire at a time certain. Second, study commissions generally do not investigate claims of actual
innocence, but rather examine known (usually through post-conviction DNA results) cases of
wrongful conviction. While their recommendations will benefit future innocent suspects of
crime, they do not necessarily provide relief to specific individuals who have claims of actual
innocence for review.
Innocence Commissions
In the United States, only North Carolina has established an operating innocence
commission that actively investigates claims of wrongful conviction. 2 The North Carolina
Innocence Inquiry Commission (NCIIC) was signed into law in August of 2006. Made up of
eight members from the judiciary, law enforcement, prosecution, defense, the victims’ rights
community, and the public, “the commission and its staff carefully review evidence and
investigate cases in a non-advocatory, fact-finding manner.” 3
Cases reviewed by the NCIIC follow a three-step process: review, investigation, and
hearing. Upon receipt of a claim of innocence, it is evaluated to determine whether it meets the
criteria set by the Commission, upon which time it enters the review process. During review,
information about the facts of the case and the claim of innocence are gathered. If the claim still
meets statutory requirements, it proceeds to the investigation phase. The investigation may be
stopped at any time if it is revealed that the claim no longer meets the statutory criteria. If the
claim withstands these criteria, it will move to the first of two hearing phases. In the first, the
claim and evidence of actual innocence are presented before all NCIIS members, and the
Commissioners determine whether to send the claim to a three-judge panel for a final hearing.
At that hearing, the panel decides whether to dismiss the conviction. Three total hearings have
been held, with one ending in exoneration.
1

The Innocence Project, Criminal Justice Reform Commissions, http://www.innocenceproject.org/Content/248.php#
(last visited Aug. 2, 2010).
2
Although Connecticut passed a bill authorizing a similar commission, the members voted for a broader focus and
instead issued the report noted above. The Innocence Project, Innocence Commissions in the U.S.,
http://www.innocenceproject.org/Content/415.php (last visited Aug. 2, 2010).
3
NORTH CAROLINA INNOCENCE INQUIRY COMMISSION, REPORT TO THE 2009-2010 LONG SESSION OF THE GENERAL
ASSEMBLY OF NORTH CAROLINA 3 (2009), available at http://www.innocencecommission-nc.gov/Report2009.htm.

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Innocence Projects
Innocence projects are non-profit organizations that often work in conjunction with law
schools to investigate claims of actual innocence. In Texas, state funds are provided to four
innocence projects located at the four state university law schools: 1) Innocence Project of Texas
at Texas Tech University, 2) Texas Innocence Network at the University of Houston, 3) Texas
Center for Actual Innocence at the University of Texas at Austin, and 4) the Thurgood Marshall
Innocence Project at Texas Southern University. Each of the four innocence projects is eligible
to receive reimbursement of expenditures up to $100,000 per year. They secure additional
funding through grants and donations.
The most recent report shows that between September 1, 2004 and August 31, 2009, the
four projects received innocence claims from over 12,000 cases that met the selection criteria.
The offenses ranged from capital murder (473 cases) to sexual assault of a child (1,373 cases) to
felony DWI (65 cases). Although innocence projects rely greatly on students and have often
lacked resources and funding, 4 the projects in Texas have accomplished a great deal, including
the posthumous exoneration of Timothy Cole.
Analysis
Although the predominant model of post-conviction investigation in the United States is
the innocence project, the United Kingdom’s adoption of the Criminal Cases Review
Commission (CCRC) provides scholars with a way to compare and contrast the two systems.
Increased creation of innocence projects in the United Kingdom further augments the
comparison.
The CCRC has developed a three-stage review process to evaluate claims it receives. In
stage one, applications are reviewed for eligibility. A case manager and commissioner are
assigned in stage two, and police are employed if an investigation is needed. Stage three of the
CCRC process is the “real probability” test, 5 in which the case manager and commissioner
determine whether there is “‘more than an outside chance that the conviction will be found
unsafe.” 6 If the application meets that test, it proceeds to a panel of three commissioners who
must unanimously vote to send the case to the Court of Appeals. At that time, the CCRC’s
involvement ends, and the case is turned over to attorneys who will handle the appeal.
Even with innocence commissions, innocence projects continue to play a vital role in
legal education and policy reform. Students involved in the projects learn writing and critical
thinking skills, how to conduct investigations and organize those findings into the law, and
ethical considerations related to the wrongfully convicted and victims of crime. 7 Moreover, the
work and research of the innocence projects provides valuable information to policy makers and
legislators as they craft effective legislation. Even with these contributions, the founders of the

4

Stephanie Roberts & Lynn Weathered, Assisting the Factually Innocent: The Contradictions and Compatibility of
Innocence Project and the Criminal Cases Review Commission, 29 OXFORD J. LEGAL STUD. 43 (2009).
5
Lissa Griffin, Correcting Injustice: Studying How the United Kingdom and the United States Review Claims of
Innocence, 41 U. TOL. L. REV. 107, 113 (2009).
6
Id.
7
Roberts & Weathered, supra note 4.

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Innocence Project of New York, Barry Scheck and Peter Neufeld, have called for the creation of
innocence commissions in the United States. 8
Innocence Commission Debate in Texas
To help further the conversation on innocence commissions in Texas, the Panel invited
representatives from the innocence projects at the four state universities to join a Panel
workgroup meeting on April 21, 2010. Together, the workgroup meeting participants suggested
a unique approach for the State of Texas. Instead of creating an innocence commission to
perpetuate the study of wrongful convictions, the Panel and innocence projects suggested an
approach that would formalize the work currently underway by the innocence projects. The
innocence projects provide a report of their activities to the Task Force each year as part of the
statute that provides state funding to the projects. By augmenting this report and distributing
their findings to the Governor, Lieutenant Governor, Speaker, and chairs of relevant committees,
the State can benefit from knowledge of both individual and systemic issues that require reform
to prevent wrongful convictions. As non-profits, innocence projects can further inform policy
makers on behalf of those initiatives, an area in which governmental agencies are limited. Taken
together, the Panel believes that these recommendations will provide a novel approach to the
study of wrongful convictions that fits the unique association between the State of Texas and
innocence projects.

8

Barry C. Scheck & Peter J. Neufeld, Toward the Formation of “Innocence Commissions” in America, 86
JUDICATURE 98 (2002).

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