Dominion of New York


September 23, 2011

6 New York Legislative Proposals Addressing Wrongful Convictions

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Written by: Kelly Virella

illustration of hands in handcuffs

Illustration courtesy of Flickr/VectorPortal


he state of Georgia’s execution Wednesday night of Troy Davis made a lot of black people feel more vulnerable to the whims of parole boards, prosecutors, and judges than at anytime in the last four decades. It wasn’t because he was the only black man recently escorted to a death chamber while claiming innocence and bearing a mountain of evidence suggesting reasonable doubt. It was also because so many of us sat inside the echo chamber that is Twitter and talked about it for hours without developing any concrete solutions.

Today, every news outlet in America is analyzing the role that social media played in the protests and we’re rehashing the old argument whether social media can be a platform for social change. What most of us in the media aren’t doing is our job: tell you how you can use the political process to make yourself more secure.

Yes, wrongful convictions are too common in New York, more than 100 since 1970. But since 2010, the New York State legislature has been considering bills designed to reduce them. That year six such bills were introduced. (Have you heard of any of them?) Five of those are currently under consideration again and the New York State Bar Association is working to have the sixth one reintroduced.

Instead of feeling insecure and afraid, pick up the phone, call your state legislators and tell them how you feel about these 6 bills.

The 5 Bills Under Consideration

To see descriptions of each bill, press its plus sign.

Asssembly Bill 4879, Senate Bill S3276 — Exculpatory Evidence

Problem: Exculpatory evidence is often not delivered until just before the trial begins or during the trial even if the state is in possession of the information earlier.

How the bill aims to address the problem: The bill defines “exculpatory information” to clarify which materials must be delivered. It also sets time deadlines for delivery, makes clear that the obligation is continuing and that it applies to materials in the possession of agencies assisting the prosecution. A pre-trial conference would be required, where the court would receive a certification from the prosecutor that there has been compliance and examine into any outstanding issues. Finally, the bill authorizes various sanctions for noncompliance to be imposed at the court’s discretion, and provides for reference to a disciplinary body where a failure to comply is intentional or reckless.

Senate Bill 1400, Assembly Bill 1373 — False Confessions

Problem: Wrongful convictions often stem from false confessions that have have been coerced out of suspects.
How the bill aims to address the problem: The bill requires the creation of an electronic record of an entire custodial interrogation in order to eliminate disputes in court as to what actually occurred during the interrogation, thereby improving prosecution of the guilty while affording protection to the innocent. Recording insures the integrity of the fact finding process by recording accurately the full course of the interrogation and reducing false denials that incriminating admissions were made, or that such admissions were obtained by coercion or intimidation. Recording also improves the quality of police interrogations through easier monitoring by supervisors, use of recordings for training purposes and the use of taped admissions to confront suspected accomplices. Finally, recording helps prevent the ill treatment of detainees and reduces the likelihood that the detainee can lodge false complaints of physical or psychological abuse.

Assembly Bill 3609 — Jailhouse Informants

Problem: A large percentage of cases in which wrongful convictions have been documented involve testimony from informants who are themselves in-custody or facing criminal prosecution or otherwise receiving incentives such as financial payments for their testimony.

How the bill aims to the address the problem: This bill would require that an informant’s testimony be corroborated, that the jury receive instructions regarding the reliability of that testimony, and that the prosecutor disclose the corrobating sources prior to the the defendant’s acceptance of a plea bargain.

Assembly Bill 2908 — DNA Evidence After a Guilty Plea

Problem: Wrongful convictions often occur after an innocent person confesses. The New York statute doesn’t say whether such people should be able to move to vacate their convinctions when potentially exonerating DNA evidence emerges. But New York appellate courts have construed the statute as foreclosing the possibly of DNA testing after a guilty plea.

How the bill aims to the address the problem: The purpose of the bill is to provide a mechanism by which an individual convicted of a crime by a guilty plea could move to vacate the conviction based on new evidence consisting of DNA test results discovered since the entry of a judgment.

Assembly Bill 5317 — Eyewitness Identification

Problem: Erroneous witness identifications cause more wrongful convictions than any other single factor. They also tie up criminal justice resources, diverting them from prosecution of the real suspects.

How the bill aims to the address the problem: To address these issues, this bill includes provisions for double blind administration, cautionary instructions, effective use of fillers, permitting only one suspect per lineup, and documentation of the identification procedure. It also permits expert testimony on eyewitness identification at trial and provides for jury instructions on eyewitness identification. For the first time in New York, this bill will also permit evidence of photographic identifications to be admitted if they have been properly conducted and documented. The bill also provides sanctions for failure to comply with the mandated procedures.


The Bill Awaiting Reintroduction

Senate Bill 7868, Assembly Bill 11150 — Monetary Damages After Exoneration

Problem: New York law allows the wrongfully convicted to file a claim for damages. But there are a number of limitations and restrictions on this right that have proven, over the years, to deny or limit awards in cases where fairness and justice would seem to entitle the exonoree to an award. Under subdivision (c) of section 8-b, the claimant must prove that “he did not commit any of the acts charged in the accusatory instrument” or the acts “did not constitute a felony or misdemeanor….” This means that the claimant must prove that he has been exonerated on every charge initially brought, even if one or more of the charged offenses was dismissed prior to trial. In addition, subdivision (d) requires the claimant to prove that he “did not by his own conduct cause or bring about his conviction.”

How the bill aims to the address the problem: This bill would modify the standards for recovery by requiring the claimant to prove only that he was exonerated only on each and every charge submitted to the fact finder. The bill would make clear that neither the negligence of the defense attorney in the criminal trial, or a plea entered pursuant to such negligence, nor a plea entered into due to duress should be deemed to be conduct by which the claimant brought about his own conviction, and thereby barring recovery. However, a plea entered into to mitigate the risk of a longer sentence would not be a plea entered into under duress.

About the Author

Kelly Virella
Kelly Virella lives in an East Harlem walk-up with her husband, her bicycle and her books. She's worked as a journalist for 11 years and started this website during the summer of 2011. She fell in love with New York City during her first visit here as a 16-year-old and finally made good on her promise to move here in April 2010.


New York City Mayor Michael Bloomberg and NYPD Commissioner Ray Kelly, left to right. Photo courtesy of Flickr/Azipaybarah