Vol. 76, No. 11, November
2003
Letters
Letters to the editor: The Wisconsin Lawyer
publishes as many letters in each issue as space permits. Please limit
letters to 500 words; letters may be edited for length and clarity.
Letters should address the issues, and not be a personal attack on
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Please mail letters to "Letters to the Editor," Wisconsin Lawyer, P.O.
Box 7158, Madison, WI 53707-7158, fax them to (608) 257-4343, or email
them to wislawyer@wisbar.org.
Strengthen Jury Instruction on Eyewitness Identification
All of us were appalled by the plight of Steven Avery, the man who
spent nearly 18 years in prison for a crime he did not commit, as shown
by the DNA of a single human hair. The advent of DNA testing has
seemingly undermined our confidence in the criminal justice system, to
the extent that certain individuals have been exonerated after being
previously "proven" guilty beyond a reasonable doubt. How many other
such innocent defendants languish today behind bars?
Something needs to be done to lessen the likelihood of such terrible
injustices occurring in the future. We who practice criminal law are all
too familiar with the risks of eyewitness testimony. How often have we
experienced a victim-witness testifying under oath that he or she is
"100 percent sure ... no doubt in my mind" that the defendant
perpetrated a crime? How often does a jury proceed to base its verdict
upon such avowed certainty - just as the jury did in Mr. Avery's
case?
I presume that the Avery jurors had read to them the
standard Wisconsin Jury Instruction on eyewitness identification (No.
141), which cautions them to consider various factors bearing on
identification, such as opportunity to observe, time, lighting, and so
on. Instruction No. 141 is not nearly strong enough, in my opinion, to
safeguard against the danger of misidentification.
Something we can do right now to help correct the injustice committed
in the Avery case is to rewrite Instruction No. 141 to make the
language stronger. Reading the Comments to that instruction, we can see
that it has been challenged in the past as being inadequate for the
purpose. Other jurisdictions have stronger warnings, as the Comments set
forth in some detail. Particularly, the one in U.S. v.
Telfaire, 469 F.2d 522 (D.C. Cir. 1972), which is recited in full
in the Comments, and is cited favorably as an alternative to the
standard instruction's limited language.
The Telfaire instruction is much more cautionary about
eyewitness identification evidence. It emphasizes that "great care" must
be taken in evaluating such evidence, and it reminds the jury that the
state bears the burden of proving identity along with all other elements
of a crime.
Perhaps the idea for revising Wisconsin's eyewitness identification
instruction also occurred to members of the Criminal Jury Instructions
Committee of the Wisconsin Judicial Conference as they read about the
Avery case in the newspapers and watched the story unfold on
television. The commentary seems to imply that our present No. 141 is a
"barebones" version that could stand improving. We should change the
instruction by simply adopting the Telfaire instruction. That
would represent a small but worthy step toward creating a better system,
one in which future Avery-type problems are avoided or at least
made less likely to occur.
Richard L. Voss, Milwaukee
Pages Missing in 2001-02 Statute Books
Our office recently purchased from the Bureau of Document Services a
set of hardcover statute books for 2001-2002. Volume 3 is missing pages
3183 through 3214. I write this letter to alert other attorneys to check
their hardcover statute books for missing pages.
Robert E. Storck, Mayville
Wisconsin
Lawyer
