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    Wisconsin Lawyer
    November 01, 2003

    Letters to the Editor

    Richard Voss; Robert Storck

    Wisconsin Lawyer
    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 others. Letters endorsing political candidates cannot be accepted. 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


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