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In any system of justice, there is a risk of convicting innocent people. The United States is no exception, and innocent people have been convicted throughout American history, a phenomenon that was first documented in 1923 (Borchard 1923). In the past two decades, however, more attention has been paid to this problem because, for the first time, post-conviction DNA testing has allowed us to determine with scientific certainty that innocent people have been convicted and often can point to the real perpetrator. The first such exoneration occurred in 1989, and as of 2012, the Innocence Project reports the exoneration of 297 individuals by post-conviction DNA testing. The National Registry of Exonerations identified hundreds more who have been exonerated using nonbiological evidence of innocence. As more of these exonerations occurred, they sparked interest in what can go wrong during an investigation and trial that can lead to such troubling systemic failures. Thus, advocates, academics, and policymakers have invested significant time and resources into identifying isolating the causes of wrongful convictions.
In 2008, in the most thorough study to date, University of Virginia law professor Brandon Garrett exhaustively studied the first 200 DNA exonerations, examining how they were handled from investigation through the trial, appellate, and post-conviction process. Garrett and others have demonstrated that there are six major causes of wrongful convictions: eyewitness testimony, unreliable forensic science evidence, false confessions, incentivized witnesses, government misconduct, and inadequate defense counsel. This research paper will summarize how each of these problems can cause wrongful convictions and what can be done to ensure that these problems are addressed so that they do not lead to wrongful convictions in the future.
To date, eyewitness error is the number one cause of documented wrongful convictions in DNA cases and also is quite prevalent in non-DNA exoneration cases (Garrett 2008; Gross 2005). Professor Garrett found that in 158 of the first 200 DNA exonerations – 79 % – eyewitness error led to the wrongful conviction, and Professor Gross found that 219 of the 340 DNA and non-DNA wrongful convictions between 1989 and 2003 involved eyewitness error. Thus, it is clear that eyewitness fallibility is a significant problem.
The simple reason for this is that human memory for faces is far less accurate than most people – particularly participants in the criminal justice system – have long believed. In addition to being inaccurate, both human memory and confidence about the accuracy of one’s memory are quite malleable (Wells et al. 1998). Moreover, even when problems with an eyewitness’s memory can be exposed in the courtroom by pointing out discrepancies in the witness’s description or problems with their ability to clearly see the perpetrator of a crime, research has shown that if an eyewitness is confident, that is the number one factor considered by jurors and courts in determining the accuracy of an eyewitness (Wells et al. 1998). This is true even though confidence at trial does not have a correlation with accuracy (although confidence at the time of the initial identification has a slightly higher correlation with accuracy) (Wells et al. 1998).
Unfortunately, unintended manipulation of human memory and confidence through the traditional identification process – in which an investigator on the case in question shows the witness several photos or individuals at the same time – exacerbates these problems (Wells et al. 1998). Social psychologists have been studying this issue for decades and have identified several key problems in traditional eyewitness identification procedures that exacerbate the fallibility and malleability of human memory. Those problems include:
• Feedback (often unintentional) to witnesses by law enforcement officers who are implementing a lineup procedure, which can improve a witness’s confidence in the accuracy of the identification
• The use of “relative judgment,” in which a witness looking at a group of photos or individuals at the same time chooses the individual who looks most like the perpetrator, even when the actual perpetrator is not in the lineup
• Repeated identification procedures (photo array, live lineup, preliminary hearing, etc.) that can increase a witness’s confidence in the accuracy of an identification (Wells et al. 1998) The same social scientists have recommended a series of reforms that have been shown to make eyewitness identifications more accurate and capture the confidence of a witness’s identification at the time it was made, instead of relying on inflated confidence estimates at the time of trial. Those reforms include:
• Double-blind administration, a procedure in which neither the witness nor the officer administering the photo array or lineup knows who the suspect is
• Confidence statements that would require the witness to immediately make a statement about his or her confidence after making an identification
• Sequential lineups in which photos or individuals are shown to a witness one at a time, requiring the witness to use absolute judgment instead of relative judgment, comparing her memory to one individual in a lineup or one photo at a time
• Videotaping the identification procedures, which will allow defense counsel to identify any potential issues with the identification procedures (Wells et al. 1998)
According to a recent review of reforms that have been implemented (Norris et al. 2010), ten states have taken steps to improve eyewitness identification procedures by either recommending or requiring some or all of these recommendations. Those states are Georgia, Maryland, New Jersey, North Carolina, Ohio, Rhode Island, Vermont, Virginia, West Virginia, and Wisconsin.
Unreliable Forensic Science Evidence
With its purported ability to scientifically link a defendant to a crime scene, forensic science plays a critically important role in criminal trials. For decades, forensic science and forensic scientists were seen as infallible. With the development of DNA testing, however, flaws in many types of forensic science have been exposed. In fact, forensic science evidence is the second most common type of evidence used to secure a wrongful conviction. One hundred thirteen of the first 200 DNA exonerations involved cases in which some kind of forensic science evidence either linked the defendant to the crime scene or placed the defendant within the population of individuals who might have committed the crime (Garrett 2008). In those cases where analysts said that forensic science linked the defendant to the crime, DNA testing proved that this testimony and those sciences were wrong. The most common forensic evidence involved serology (conventional blood typing), followed by hair evidence, soil comparison, DNA tests, bite-mark comparisons, fingerprint evidence, dog scent identification, spectrographic voice evidence, shoe prints, and fiber comparison.
Most forensic science used in courtrooms – both before and after the advent of DNA testing – involves the attempt to determine whether a suspect can be tied to a crime scene. This can happen in several ways, including the following: (1) because a suspect leaves part of himself, such as hair, semen, saliva, sweat, or blood, at a crime scene; (2) because a suspect leaves something else, such as fibers, soil, or footprints, at a crime scene; or (3) because the weapon used to injure the victim has markings that can be compared to an item (usually a gun or knife) owned by the suspect. Oftentimes, forensic scientists testified that a suspect or items in possession of the suspect “matched” evidence found at a crime scene and that this match was conclusive proof that the defendant had, in fact, been at the crime scene. This testimony often went unchallenged by defense lawyers in the era before DNA testing.
However, the explosion of DNA exonerations in cases where at trial other forensic sciences conclusively linked a defendant to a piece of evidence at a crime scene proved that in many cases, what people believed to be infallible science was actually quite fallible and possibly not even science. Thus, in 2009, a committee of the National Academy of Sciences (“NAS”) issued a report commissioned by Congress that was designed to evaluate the reliability of forensic science techniques. The report identified several flaws with the way that forensic science has been developed, regulated, and practiced. It expressed particular concern with microscopic hair comparison, fingerprint comparison, gunshot residue analysis, firearm and tool-mark analysis, shoe prints, and soil and fiber comparisons. In each of those sciences, the report found that the conclusions reached by experts (that samples from crime scenes could be matched to defendants or items in the possession of defendants) were not grounded in any scientific research and were not validated by any empirical data. In addition, the lack of accreditation and certification among crime laboratories means that there frequently are no standards to determine what constitutes a match – examiners are allowed to determine for themselves, based on their experience, whether items match. Finally, even where there are standards, the lack of proficiency testing means that unqualified examiners are allowed to continue working and testifying without sufficient oversight.
In recent years, states have made some effort to reform crime laboratories and the use of forensic evidence in criminal trials. By statute, 13 states enacted some type of forensic oversight, and in two states, the state’s attorney general established oversight entities. In addition to ensuring that crime laboratories are accredited and follow best practices, some oversight commissions are also charged with investigating forensic misconduct. In 2004, Congress passed the Justice for All Act, which included a provision that links the receipt of grants by state crime laboratories under the Paul Coverdell Forensic Science Improvement Grants Program to the establishment of guidelines for handling allegations of negligence or misconduct. In the wake of the NAS report, various advocates also are working to create an entity within the federal government that would foster real scientific research into various areas of forensic science, as well as set standards and licensing requirements that would help create some uniformity within the various forensic science disciplines.
Prior to the advent of DNA testing, it was difficult for most actors in the criminal justice system – including defense lawyers – to believe that an innocent person would confess to a crime that he or she did not commit. Although it was easy to imagine that such confessions would occur in an environment with physical coercion, most American police departments long ago abandoned those tactics and focus instead on persuasive psychological tactics. However, in Professor Garrett’s study of the first 200 DNA exonerations, he found that 31 cases involved false confessions. Professors Steve Drizin and Richard Leo documented in a 2004 study published in the University of North Carolina Law Review 125 recent provable false confessions in the United States.
False confessions are particularly problematic because the phenomenon is so hard for most people to understand. Once an individual confesses to a crime, a conviction is almost assured. The police stop investigating, prosecutors ask fewer questions, defense lawyers are more likely to encourage a guilty plea, and juries are unlikely to believe protestations of innocence. This is true regardless of how reliable the confession appears. In many exoneration cases, the confessors were wrong about basic facts like the race of the victim, the location of the crime, and the weapon used, but they were convicted nonetheless. Quite simply, very few people believe that anyone could confess to something they did not do.
Because these false confessions are such a perplexing problem, they have been the subject of significant research by both psychologists and legal scholars who have sought to examine what factors – both individual and systemic – might lead someone to falsely confess to a crime. That research has determined that individuals who are “unusually suggestible and compliant” – such as juveniles and the mentally retarded – are more likely to provide authorities with a false confession (Drizin and Leo 2004). Of the 31 false confessions documented by Professor Garrett, 11 involved mentally retarded defendants, and 12 involved juvenile defendants. Juveniles are likely to falsely confess because they are more likely to make impulsive decisions, engage in risky behavior, and be more susceptible to suggestions. Individuals with mental retardation may be more susceptible to suggestions because they want to please authorities, want others to believe they are competent, often cannot control their impulses, and are willing to accept blame.
The idea that inherently suggestible individuals are more likely to falsely confess to crimes is not terribly surprising; it is far more surprising that a significant number of the false confessions documented by Professor Garrett and by Professors Drizin and Leo involved individuals who are not inherently suggestible. Thus, despite that lack of inherent suggestibility, these individuals made the choice to confess to a crime that they did not commit. Legal scholars and social scientists examining the reasons for this have determined that modern interrogations involve multiple tactics that – particularly when combined – can help cause false confessions. First, the purpose of interrogations is to elicit confessions and to ignore protestations of innocence (Drizin and Leo 2004) (“police are trained to interrogate only those suspects whose guilt they presume or believe they have already established”). Second, recognizing the inherent difficulty of getting anyone – guilty or innocent – to confess to a crime, interrogations are designed to convince the suspect that confessing is the logical choice. To do this, investigators rely upon a technique known as “minimization and maximization” (Drizin and Leo 2004), in which investigators maximize the extent of the evidence against the defendant to intimidate them but then offer them the opportunity to minimize their involvement (e.g., by claiming self-defense in a murder or consent in a rape) and thus avoid harsher criminal penalties. Third, the police are allowed to lie to suspects about the evidence against them (Drizin and Leo 2004). Fourth, during the course of an interrogation, police may – often inadvertently – provide the suspect with information about the crime that can be used to validate a false confession later. And fifth, interrogations often are quite long, which has been shown to increase an individual’s likelihood of falsely confessing (Kassin 2010). One study found that in cases where a false confession was made, the interrogation lasted an average of 16.3 h (Kassin 2010). The same study also found that 34 % of interrogations lasted 6–12 h, and 39 % lasted 12–24 h (Kassin 2010).
Solving the problem of false confessions is achievable through reforms that often are beneficial to both law enforcement and to innocent defendants. The most common reform recommended to combat false confessions is the videotaping of all interrogations, from start to finish. Although this cannot prevent false confessions, it can increase the likelihood that false confessions are caught before they lead to conviction. More than 500 jurisdictions now do just that. In addition, some have recommended a reformation of interrogation practices, advocating for investigative interviews of suspects instead of interrogations that are designed only to elicit confessions (Drizin and Leo 2004). Thus, while false confessions are one of the most perplexing causes of wrongful convictions, they also are one of the easiest problems to solve.
Government Informants: Snitches
Investigating crime is difficult for many reasons, and one of those reasons is that relevant witnesses often do not want to cooperate with the police, often because of fear or bias against law enforcement or because it is against their interest. Thus, the government is permitted to incentivize testimony by offering reduced sentences, reduced charges, favorable treatment in prison, or – in some cases – reward money. Such deals can be offered to codefendants, reluctant witnesses, or – in the most dangerous form – jailhouse informants who allegedly heard the defendant confess to the crime in a jail cell. While such deals are a necessary evil, the potential for abuse is obvious.
Wrongful conviction cases prove this point again and again. In 35 of the first 200 DNA exonerations, Professor Garrett found that some type of incentivized testimony was used from an informant, a jailhouse informant, or an alleged co-perpetrator. In 2005, the Center on Wrongful Convictions released a study on the 111 death row exonerations since the death penalty was reinstated in this country in the 1970s. The study found that of those exonerations, 51 individuals were wrongfully convicted based on informant testimony, making incentivized testifying the leading cause of wrongful convictions in capital cases.
The reason for this is that the incentives, combined with the ease of making up seemingly credible information, create a world in which informants are able and willing to lie in ways that are difficult to detect. In the most problematic cases, informants make statements that the defendant has confessed to the informant – either out on the street or in a jail cell. Those statements often contain details that seemingly would be difficult to obtain from anyone other than the true perpetrator of a crime. However, when an informant has access to the Internet, media, friends, and – in some cases – the court file that the defendant has left in his jail cell, he or she can obtain information about the case that is used to create a plausible story that is difficult to either verify or disprove. Indeed, in a 60-min segment, Leslie Vernon White, who admitted to lying on many occasions as a jailhouse informant, demonstrated the ease with which he could obtain information about a crime and make up a confession.
These problems are exacerbated when either the deals provided to an informant or an informant’s full history of cooperating with the government is not fully disclosed to the defense. If a jury knows that an informant has received some benefit for his testimony or that he has testified as an informant on multiple occasions, the jury at the very least has the benefit of more balanced information about the informant. In many cases, however, that information is not disclosed, which takes testimony that is inherently suspect and inappropriately bolsters it in the minds of the jury.
Despite its inherent flaws, banning informant testimony is not a tenable solution. Without the ability to incentivize witnesses, the government would have a difficult time convincing witnesses to talk. Thus, any solution to the problem of informants involves both appropriately verifying facts in the informant’s testimony and properly disclosing an informant’s history and benefits he has received in exchange for his testimony. Recommendations on how to handle incentivized testimony include having informants wear wires, recording informant conversations with authorities and providing the recording to defense counsel, disclosing the benefit that the informant will receive in exchange for testifying, and keeping a database of informants so that law enforcement and the defense know who may be manipulating the system to repeatedly receive benefits from the government. In Illinois, the state legislature requires significant disclosures, pretrial reliability hearings, corroboration, and cautionary jury instructions in any capital case involving a jailhouse informant.
In many cases, wrongful convictions are caused by an unfortunate series of honest mistakes – eyewitnesses who have erred, scientific testimony that was unintentionally overstated, and confessions that, while false, were obtained using what police believed to be appropriate tactics. In other cases, however, police and prosecutors who are under pressure to get convictions sometimes lose sight of their obligation to do justice and – whether intentionally or not – commit misconduct by, among other things, failing to turn over exculpatory evidence, improperly characterizing evidence at trial, engaging in improper interrogation tactics, or inappropriately attempting to influence an eyewitness. Such misconduct is far more widespread than anyone might have believed before the advent of DNA testing.
Although it is impossible to quantify exactly how many exonerations involved such misconduct because it is so difficult to uncover, it clearly has been a significant factor in many wrongful conviction cases (Garrett 2008). In 2003, the Center for Public Integrity found that since 1970 prosecutorial misconduct was a factor in dismissed charges, reversed convictions, or reduced sentences in at least 2,012 cases of the 11,452 cases in which claims of prosecutorial misconduct were reviewed by courts (The Justice Project 2009). Unfortunately, studies also have shown that there are few incentives for prosecutors, in particular, to avoid committing misconduct (Ridolfi and Possley 2010). Thus, this is an area that is ripe for reform.
The reforms suggested in the sections on eyewitness error and false confessions also would address government misconduct in these areas, but they would not address the problem of failing to turn over exculpatory evidence. In civil cases, both sides are required to liberally exchange information in lengthy and complicated discovery procedures. In criminal cases, however, discovery is much more limited. The Supreme Court found in Brady v. Maryland that the Constitution requires the government to disclose exculpatory and impeachment information to the defense, but the Constitution requires nothing else. Some states, such as North Carolina, require the government to provide open-file discovery, but that is not the norm. In the federal system and the District of Columbia, for example, criminal defendants are entitled to only what is constitutionally required, their own statements, and expert notice. Unless a defendant has a good investigator, he may not even know who the witnesses against him are until those witnesses testify at trial.
Because so many states have such limited discovery, the onus usually is on the prosecutor to determine what information needs to be disclosed. Prosecutors are trusted to do this because they have two roles in the criminal justice system – to zealously prosecute crimes and to do justice. Unfortunately, the DNA exonerations and other exonerations have shown that prosecutors often fail to disclose information that could have been helpful to the defense. Sometimes, this is deliberate. In other cases, however, prosecutors who are working to zealously prosecute a defendant simply do not see certain information as exculpatory and therefore do not turn it over to the defense.
Various entities looking at this problem have proposed various solutions. Those solutions include open-file discovery and more meaningful sanctions for prosecutors who do break the rules. In addition, the Innocence Project has proposed criminal justice reform commissions that can bring all parties – including police and prosecutors – to the table to come to a consensus on how to handle the actors in the criminal justice system who do not follow the rules.
Inadequate Defense Counsel
The Sixth Amendment of the United States Constitution guarantees criminal defendants the right to counsel, and the Supreme Court in Gideon v. Wainwright found that this requires the state to provide indigent defendants with a lawyer who is financed by the state. While Gideon was a tremendous milestone for indigent defendants, it did not specify how states were required to make attorneys available to indigent defendants. Thus, states responded to Gideon in a variety of ways, including statewide public defender systems, contract systems in which independent agencies bid for court appointments and are awarded contracts based on a variety of factors, contract systems in which contracts go to the lowest bidder, and ad hoc court appointments in which judges appoint lawyers on a case-by-case basis. Predict ably, this has resulted in a huge disparity between jurisdictions, with some committing to the provision of high-quality indigent defense lawyers despite the unpopularity of doing so and others providing defendants with inexperienced, poorly paid attorneys who are overburdened with extraordinary caseloads and denied access to investigators and necessary experts.
There is little incentive for states to provide anything other than the bare minimum. Although the Supreme Court found in Strickland v. Washington that defendants have a right to effective counsel, a defendant challenging his conviction based upon ineffective assistance of counsel must prove that his attorney was defective and that if his attorney had acted properly, the result of the proceeding would have been different. In any event, challenging a conviction based on ineffective assistance of counsel requires competent counsel, something many defendants simply do not have, particularly after they have been convicted and through the appellate process, when the right to counsel ends.
Unsurprisingly, the lack of quality defense lawyers leads to wrongful convictions. When an innocent defendant lacks an advocate who can investigate and meaningfully challenge the government’s case, it is to be expected that a wrongful conviction might occur. According to the Innocence Project, many wrongful convictions in DNA cases involved lawyers who were incompetent, ineffective, overworked, or all three. Among the errors noted in these cases are lawyers who slept in the courtroom during trial, failed to investigate alibis, failed to consult experts or adequately challenge forensic evidence, and failed to show up for hearings.
This problem is difficult to solve largely because it requires the investment of scarce government resources in something that is considered to be unpopular, the representation of accused criminals. However, a commitment of sufficient resources to indigent defense systems would solve most, if not all of the problems that cause wrongful convictions. While it would not directly solve the problem of unethical or lazy attorneys, the proper investment of resources would help decrease caseloads, allow for sufficient investigative funds, provide funding for experts, provide training that is sorely lacking, and help reduce the disparity of resources between indigent defense systems and prosecutors. While such funding might not be popular, most prosecutors and other actors in the criminal justice system recognize that a well-funded indigent defense system helps make the system function properly and can help prevent the conviction of innocent people.
Every wrongful conviction is a tragic example of how the criminal justice system can fail at its most critical function: the reliable conviction of the guilty and exoneration of the innocent. While these cases are tragic, they also provide us with an unprecedented opportunity to learn where our criminal justice system is fallible and how it can be improved. It is known that wrongful convictions have exposed problems with eyewitness testimony, forensic science evidence, false confessions, government informants, government misconduct, and ineffective assistance of counsel. It is important to continue to study wrongful convictions so that best practices can be determined for how to handle these issues. With continued study and reform, steps can be taken to correct problems with these factors in order to prevent the conviction of the innocent in the future.
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