Prosecution and Wrongful Convictions Research Paper

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This research paper explores the relationship between prosecution and wrongful convictions. It begins with an overview of the problem, and then it introduces the means by which wrongful convictions occur. Prosecutorial causes for wrongful convictions are then reviewed, as are pertinent court cases in the area. This research paper concludes with policy recommendations aimed at minimizing the role of prosecution in wrongful convictions.

Introduction

In June of 2007, Durham County District Attorney Michael Nifong was disbarred and stripped by the North Carolina State Bar Disciplinary Committee of his license to practice law (North Carolina State Bar v. Michael B. Nifong, 06 DHC 35 (2007)). Nifong’s disbarment was based on his actions during the infamous and highly publicized Duke University lacrosse scandal, during which he committed a number of professional missteps, including going public with false accusations and refusing to hear exculpatory evidence against the players identified as suspects in the case. According to the disciplinary committee, no other action short of disbarment would have been appropriate under the circumstances. Although the case was not typical, it served as a shining example of what can happen when prosecutors overstep their authority.

Prosecutors represent the government in criminal proceedings. According to the American Bar Association’s Code of Professional Responsibility, “The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.” Prosecutors also enjoy a significant amount of power in handling their duties, especially considering the fact that they choose which cases to pursue and whether to take cases to trial or to settle matters through plea agreements (Worall 2008). The control they have even plays a role in how cases are handled at each step of the process. Finally, research has shown that prosecutors are often instrumental in case outcomes, including as to whether a wrongful conviction takes place (Huff et al. 1986; Scheck et al. 2000; Schehr and Sears 2005).

Despite the image of prosecutors as hardworking professionals who represent the government and play a major role in the criminal process (Worall 2008), wrongful convictions owing to their actions place a black eye on the justice system. Such injustices undermine people’s faith in the ability of the justice system to identify and hold accountable people who break the law (Huff et al. 1986; Ricciardelli et al. 2009). For instance, knowing that wrongful convictions occur may result in jurors and other individuals calling into question the guilt of those being accused of crimes (Huff et al. 1986). Further, they may doubt that convictions secured by prosecutors are valid (Huff et al. 1986). In light of this concern, this research paper begins with an overview of the problem of wrongful convictions, and then it introduces the causes and contributing factors of wrongful convictions. Prosecutorial causes for wrongful convictions are also reviewed, as are pertinent (primarily US Supreme Court) cases in the area. This research paper concludes with policy recommendations aimed at minimizing the role of prosecution in wrongful convictions.

The Problem Of Wrongful Convictions

Wrongful convictions have been defined as “those cases in which a person was convicted.. ., but later is found to be innocent beyond a reasonable doubt, generally due to a confession by the actual offender, evidence that had been available but was not sufficiently used at the time of conviction, new evidence that was not previously available, [or] other factors,” (Huff et al. 1986, p. 519). This definition highlights a number of means by which a person can be convicted for a crime he or she did not commit. It also highlights particular features of a case that a wrongfully convicted individual may seize upon in order to challenge the trial verdict.

Conservative estimates suggest that wrongful convictions occur in about one-half of one percent of all felony convictions (Huff et al. 1986). Other estimates suggest that the rate of wrongful convictions reflect the particular type of crime at issue. For example, Gross (2008) estimated that the rate for capital murder, rape, and robbery could be from 2 % to 5 %. Focusing on capital rape murder, Risinger (2007) estimated that wrongful convictions occur in between 3 % and 5 % of such cases.

It is not clear which miscarriage of justice does the most harm. Is it worse to wrongfully incarcerate an individual for several years than tarnish a prosecutor’s reputation because he/she wrongfully convicted someone with no malicious intent whatsoever? In truth, each and every instance of wrongful conviction is an injustice, making it difficult to rank them from least to worst based on harm. That being said, most would agree that wrongfully executing an individual is the ultimate miscarriage of justice.

A defendant who is wrongfully convicted may eventually be exonerated. An exoneration is “an official act declaring a defendant not guilty of a crime for which he or she had previously been convicted” (Gross et al. 2005, p. 524). Identifying the total number of exonerations in this country is difficult, but evidence suggests that approximately 600–700 exonerations have occurred over the past 35 years (Gross 2008). Of the exonerations examined by Gross and his colleagues (2005), 96 % were for either murder or rape (or sexual assault).

The reasons for which the wrongfully convicted are exonerated also vary. For example, as of September 24, 2011, there were 273 individuals exonerated through the use of deoxyribonucleic acid (DNA) evidence in the United States, 17 of whom were sitting on death row prior to being exonerated (Innocence Project n.d.).

According to Gross (2008), it should come as no surprise that wrongful convictions occur. No system is perfect. Indeed, one can argue that trials are not supposed to be perfect, only fair. Even so, some people have a difficult time believing the criminal justice system can make such egregious mistakes. Were it not for the press attention high-profile exonerations receive, the problem might go relatively unnoticed. The sheer incidence of exonerations has increased from “an average of 12 a year from 1989 to 1994, to an average of 42 a year since 2000” (Gross et al. 2005, p. 527), making the problem of wrongful convictions all the more apparent.

The Death Penalty And Wrongful Convictions

Wrongful convictions in death penalty cases are especially worrisome and arguably the most serious type of mistake the justice system can make. For example, former Illinois Governor George Ryan placed a moratorium on the death penalty in 2000 because at one point, 13 individuals on the state’s death row had been exonerated (Zalman 2006). Since that time, seven more death row inmates have been exonerated, bringing the grand total to 20 (Center on Wrongful Convictions n.d.). These 20 exonerations amount to a rate of more than 6 %, which is the highest exoneration rate among states with the death penalty (Center on Wrongful Convictions n.d.). Partly in response to this problem, Illinois Governor Pat Quinn signed a bill into law during 2011 that abolished the death penalty in Illinois (Schwartz and Fitzsimmons 2011).

Unfortunately, researchers have been able to identify cases in which individuals were executed in spite of compelling claims of innocence (Bedau and Radelet 1987). Once a person is executed, there is obviously no going back to correct mistakes; the only way to correct the mistake would be to issue a posthumous exoneration, which would do nothing for the wrongfully convicted person who has been executed.

Notwithstanding the prospect of executing an innocent individual, there is also great concern about forcing the wrong person to sit on death row for an extended period of time. Death row exonerees have pointed to the “fear, anger, loneliness, and feelings of inhumanity that come with facing execution for crimes they did not commit” (Westervelt and Cook 2010, p. 266). Exonerees also speak about the fear that comes along with watching a fellow death row inmate be removed from his cell to face execution, the issues that come along with having one’s execution date set, and the anxiety and stress that come from coming within hours of actually being executed (Westervelt and Cook 2010).

The Innocence Movement

Barry Scheck and Peter Neufeld helped draw attention to the issue of wrongful convictions by launching the Innocence Project in 1992. Housed in the Benjamin N. Cardozo School of Law at Yeshiva University in New York, the Innocence Project focuses on helping exonerate the wrongfully convicted, primarily through the use of DNA testing (Innocence Project n.d.). The Innocence Project is able to pursue its mission with the help of the funding it receives from individuals, foundations, its annual benefit dinner, corporations, and the Cardozo School of Law (Innocence Project n.d.).

The Innocence Project is not alone. Other such projects across the country conduct similar work, investigating cases and fighting for individuals they have reason to believe were wrongfully convicted.

The Innocence Movement, as it has been called (Hughes 2011; Zalman 2006), has taken on a significant amount of power with the creation of the Innocence Network. The network is an “affiliation of organizations dedicated to providing pro bono legal and investigative services to individuals seeking to prove innocence of crimes for which they have been convicted and working to redress the causes of wrongful convictions” (Innocence Network n.d.). Each year, the Innocence Network holds an annual conference that brings together member organizations and provides training and information for attorneys working on wrongful conviction cases. In addition, these conferences welcome exonerees from all over the country and invite them to participate, usually through the provision of special activities in which exonerees are able to take part.

Causes Of Wrongful Convictions

Several causes of wrongful convictions have been identified. Some are incidental to prosecutorial misconduct. Others are not. Often, what contributes to the problem of wrongful convictions is a series of actions involving the prosecutor and other individuals inside and outside the criminal justice system.

Eyewitness misidentification has been noted as the leading cause of wrongful convictions (Innocence Project n.d.). According to the Innocence Project, eyewitness misidentification was a factor in 75 % of the convictions overturned through DNA evidence (Innocent Project n.d.). Although not necessarily identified as a cause, race has been identified as a factor involved in wrongful convictions, as well; plenty of evidence suggests a defendant’s race is associated with whether the individual will be convicted (Bedau and Radelet 1987; Gross et al. 2005).

Judicial errors have also proven responsible for wrongful convictions. They include instances in which judges “allow incompetent defense attorneys, overzealous police and prosecutors, and questionable forensic evidence to permeate the courtroom” (Ramsey and Frank 2007, pp. 446–447). This could include judges improperly allowing prosecutors to make improper and inflammatory statements during the trial.

So-called junk science has been linked with wrongful convictions, as well. This refers to scientific evidence that is either faulty or analyzed improperly and is introduced into evidence. It also refers to forensic testing that is “inaccurately conveyed in trial testimony” (Innocence Project n.d.).

Another cause of wrongful convictions is “snitch testimony,” or statements made by a witness who has an incentive to lie. “Snitches” are usually either jailhouse informants who receive some sort of leniency in exchange for their testimony or killers who are trying to divert suspicion from themselves (Warden 2004). According to Warden (2004), snitch testimony is the leading cause of wrongful convictions in capital cases.

Yet another cause is confirmatory bias, which is “the tendency to emphasize and believe experiences which support one’s views and to ignore or discredit those which do not” (Mahoney 1977, p. 161). This can be especially troublesome when prosecutors, those working in law enforcement, or even jurors allow confirmatory bias to guide their decision-making.

Still other causes of wrongful convictions include juror bias, juror neglect, community pressure for conviction, errors made by medical examiners and forensic science experts, false confessions, the mental capacity of the accused, and inadequate defense representation (Huff et al. 1986; Scheck et al. 2000; Schehr and Sears 2005).

In general, a single wrongful conviction case will involve more than one of the aforementioned causes (Huff et al. 1986). An example of this can be found in the case of Charles Chatman, who, before he was exonerated in 2008, served over 26 years of a 99-year sentence for a rape he did not commit. The factors that contributed to his wrongful conviction included inadequate defense representation and eyewitness misidentification (Innocence Project n.d.).

Prosecutorial Misconduct

Prosecutorial misconduct involves “the intentional use of illegal or improper methods for attaining convictions against defendants in criminal trials” (Lucas et al. 2006, p. 97). The prevalence of prosecutorial misconduct has been documented in cases of wrongful convictions. For example, in an examination of DNA exonerations conducted by the Innocence Project, researchers found that in 63 % of cases, police and prosecutorial misconduct played a significant part in the wrongful conviction (Scheck et al. 2000).

Prosecutorial misconduct occurs by several means. One common form of misconduct has been identified as withholding exculpatory evidence from the defense (Innocence Project n.d.), in violation of Brady v. Maryland (373 U.S. 83 [1963]). In Brady, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution” (p. 87). The Supreme Court has since explained that Brady only applies to pretrial disclosure and does not extend to the post-conviction context (see District Attorney’s Office for the Third Judicial District v. Osborne, [129S.Ct. 2308, 2319 (2009)]).

How serious is the problem of withholding exculpatory evidence? In their study of 340 wrongful capital convictions, Bedau and Radelet (1987) determined that prosecutor errors occurred in 50 of them. Of those 50, 35 involved the suppression by the prosecutor of exculpatory evidence.

Other methods of prosecutorial misconduct include deliberately mishandling, mistreating, or destroying evidence, allowing witnesses they know or should know are not truthful to testify, pressuring defense witnesses not to testify, relying on fraudulent forensic experts, and making misleading arguments that overstate the probative value of testimony (the Innocence Project n.d.). For example, consider the case of Steven Linscott, who was wrongfully convicted of murder and sentenced to 40 years in prison. During his trial, the prosecutor overstated the strength and importance of forensic evidence and also mischaracterized the state expert witness’s testimony (Innocence Project n.d.; West 2010). Or consider the case of Curtis McCarty, who was wrongfully convicted and sentenced to death for a crime he did not commit (Innocence Project n.d.; West 2010). The prosecutor in his case failed to disclose evidence to the defense in a timely manner, made improper comments about facts that were not in evidence, expressed his personal opinion about the guilt of the defendant, and made comments that were found to be improper and inflammatory (West 2010). McCarty served 21 years in prison before he was released (Innocence Project n.d.).

Causes Of Prosecutorial Misconduct

Identifying why prosecutorial misconduct occurs could be helpful in preventing future problems. It has been suggested that prosecutorial misconduct may result from insufficient training coupled with a focus on winning, as opposed to a focus on doing the right thing (Ridolfi and Possley 2010). In addition, it is possible that the use of a lower evidentiary standard in the early stages of a case (such as anything other than the “proof beyond a reasonable doubt” that is required at trial) can make it easier for prosecutors to convict someone who is innocent (Forst 2008).

Researchers have also called attention to the high occurrence of procedural errors that take place during the course of prosecutions of serious crimes (Bedau and Radelet 1987; Lucas et al. 2006). This may be as a result of the significant pressure that prosecutors face when dealing with difficult cases, leading them to engage in misconduct partly because they have convinced themselves that these defendants are guilty, thereby justifying their behavior (Lucas et al. 2006).

It has even been suggested that prosecutors engage in misconduct because of the heavy burdens and responsibilities placed on them and not because of any sinister intention to secure a conviction by any means necessary.

For example, the expectation of securing convictions may lead prosecutors to naturally view certain evidence in an inculpatory light, thereby preventing them from being able to see the exculpatory value of that evidence. Again, it is not necessarily the case that each instance of prosecutorial misconduct can be traced to intentional acts on the part of the prosecutor.

The Courts And Wrongful Convictions

Appellate courts are especially important in the discussion of wrongful convictions and prosecution because if an innocent individual is convicted, his or her next course of action is to file an appeal. The decisions handed down by appellate courts, especially the US Supreme Court, greatly influence how cases will be decided at the appellate level.

The US Supreme Court has decided a number of cases dealing with all facets of wrongful convictions. These cases have considered a number of issues, including DNA testing, the proper claims to file when seeking certain types of relief, and whether or not it is unconstitutional to execute an innocent person. In addition to Supreme Court cases, the North Carolina State Bar held a disciplinary hearing that was extremely important in reference to the behavior of prosecutors during their quest to obtain convictions. Though not a Supreme Court case, it ranks highly among key wrongful conviction cases.

Key US Supreme Court Cases

Under the doctrine of harmless error, it is possible for an appellate court to affirm a person’s conviction, even though prosecutorial misconduct or some other errors were present, so long as the reviewing court believes that the outcome of the case was not affected by errors (Ridolfi and Possley 2010). This was the rule announced in Chapman v. California (386 U.S. 18 [1967]), a case in which the Supreme Court decided that “there may be some constitutional errors in a conviction which, in the setting of a particular case, are so unimportant and insignificant that they may, consistent with Federal Constitution, be deemed harmless and which will not require automatic reversal of the conviction” (p. 22). The Chapman decision has had a significant effect on those seeking to prove their innocence on appeal. Why? If a number of errors were made at trial, someone who is wrongfully convicted may have serious trouble asserting his or her innocence if the errors made were “harmless.” In fact, these errors deemed as harmless may have actually contributed to the person being wrongfully convicted (West 2010).

Another Supreme Court case that has a serious impact on those that are innocent and appealing their convictions is Strickland v. Washington (466 U.S. 668 [1984]). Strickland dealt with the issue of ineffective assistance of counsel, which, as discussed earlier, is one of the causes of wrongful convictions. In Strickland, the Supreme Court set forth the two-prong test for appellate courts to use in analyzing a convicted individual’s claim that trial counsel was ineffective. A convicted defendant must show (1) that counsel’s performance was deficient, meaning that counsel made errors so serious that it was not functioning as the “counsel” guaranteed by the Sixth Amendment and (2) the deficient performance prejudiced the defense, meaning that counsel made errors so serious as to deny the defendant a fair trial. This test can make it difficult for convicted defendants to prevail on appeal because appellate courts often defer to the judgment of the trial counsel (see, e.g., Premo v. Moore, 131S.Ct. 733 [2011]). Therefore, even if defense counsel is ineffective at trial, that attorney’s actions may be seen as merely strategic and therefore treated with deference, meaning that a court of appeals will not likely overturn a guilty verdict.

In Herrera v. Collins (506 U.S. 390 [1993]), the Supreme Court considered the issue of whether, based on the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s due process guarantee, it is unconstitutional to execute someone who was actually innocent of the crime for which he or she is convicted. In that case, Herrera filed a petition for a writ of habeas corpus claiming that, based on new evidence, he was innocent and that his brother, who was deceased at the time the case was heard, actually committed the murders. Although the court ruled against Herrera, holding that his claim of actual innocence did not entitle him to federal habeas relief, it did not clearly articulate whether it would be unconstitutional to execute an innocent person, thereby leaving the key issue unresolved.

In District Attorney’s Office v. Osborne (129S.Ct. 2308 [2009]), the Supreme Court held that the defendant had no constitutional right to obtain post-conviction access to the state’s evidence for DNA testing. Osborne’s goal was to obtain restriction fragment length polymorphism (RFLP) DNA testing on the forensic evidence used in his case, as his attorney had failed to do so during trial. Even though Osborne had filed a request under Alaska’s post-conviction relief statute, the state would not allow for the evidence to be tested, claiming that the statute did not apply to DNA testing that had been available at trial. The Supreme Court sided with the state. The practical result of the court’s decision is that individuals seeking to prove their innocence in post-trial review are at the mercy of state law.

In Skinner v. Switzer (131S.Ct. 1289 [2011]), the petitioner was sentenced to death and was trying to obtain DNA testing of previously untested evidence by filing a civil rights action under 42 U.S.C. } 1983. The narrow issue the court decided concerned whether this avenue for relief was proper. It held that a post-conviction claim for DNA testing is properly pursued in a } 1983 claim, meaning that Skinner was permitted to pursue his claim in the federal courts. This provides convicted individuals with the opportunity to file a civil rights claim to seek post-conviction DNA testing, which at the very least allows for a remedy other than filing a writ for habeas relief. Even so, post-conviction review is not guaranteed in light of this decision.

Arizona v. Youngblood (488 U.S. 51 [1988]) offers yet another interesting look into the Supreme Court and the issue of wrongful convictions. Youngblood dealt with the issue of a prosecutor/police department’s duty to preserve evidence. The police in that case improperly stored evidence, causing it to be degraded. This prevented them from obtaining information that could have identified the offender. Youngblood argued that the destruction of evidence, which he claimed was potentially exculpatory, violated his due process rights. The Supreme Court, however, held that the prosecution and/or police’s failure to preserve potentially useful evidence did not amount to a denial of due process of law unless the defendant was able to prove bad faith on the part of the prosecution and/or police. The Youngblood decision was handed down in 1988, but in 2000, Youngblood’s attorneys were able to persuade the police to test the evidence using a new type of DNA technology. This testing revealed that Youngblood had in fact been wrongfully convicted, which led to his eventual release from prison. In addition, the DNA testing disclosed the identity of the true assailant, which led to that individual’s conviction.

The North Carolina Experience

The matter of The North Carolina State Bar v. Michael B. Nifong (06 DHC 35 (2007)) is also extremely important to the discussion of prosecution and wrongful convictions. The decision, which was rendered by the North Carolina State Bar, came on the heels of inappropriate actions by then-Durham County District Attorney Michael Nifong in connection with the infamous Duke lacrosse scandal, mentioned at the beginning of this research paper. Although the case did not involve a wrongful conviction per se, it is relevant in the present context because, before the North Carolina State Bar become involved, it was a wrongful conviction waiting to happen.

The matter began when an alleged victim reported to the police that she had been sexually assaulted at a party attended by a number of players for the Duke lacrosse team. Early on in the investigation, Nifong decided to prosecute the case himself, and it was believed he had ulterior motives in that he was trying to take advantage of the media attention the case was bound to receive (The North Carolina State Bar v. Michael B. Nifong, 06 DHC 35 (2007)). Indeed, it was determined that Nifong continued to proceed with the case and secured indictments against three members of the lacrosse team, even though there was a significant amount of evidence suggesting that the defendants were innocent. Such evidence included (1) questions about the alleged victim’s credibility, (2) inconsistent statements made by the alleged victim, (3) being told by law enforcement officials that there was no evidence a rape had occurred, (4) failure of the alleged victim to identify her attackers even though she had viewed two photo arrays, (5) testing from a rape kit that yielded no semen, blood, or saliva evidence in spite of the fact that the alleged victim claimed her attackers did not wear a condom, (6) the alleged victim identifying her alleged attackers on her third try under questionable circumstances, (7) and further DNA testing revealing DNA from four separate males, all of which were inconsistent with members of the lacrosse team.

In spite of all of this evidence, Nifong made repeated statements to the media, speaking about the fact that he was certain there was a rape and that it was racially motivated, talking about the harm and pain suffered by the alleged victim, and described the attack as “gang-like rape activity” (North Carolina State Bar v. Michael B. Nifong and 06 DHC 35 2007, p. 6). The disciplinary committee also found that Nifong had intentionally withheld exculpatory evidence and made false representations to the court – and to opposing counsel. As a result of his actions, the committee found that the only proper punishment was disbarment and ruled that Nifong would have to surrender his license to practice law in North Carolina. In hindsight, it appears that Nifong had every intention of continuing to pursue prosecution, regardless of evidence that the accused lacrosse players were innocent. He went beyond that, however, and even engaged in a campaign to withhold evidence, smear the defendants, and lie to the court. The facts of this case suggest that it had the potential to be a wrongful conviction and demonstrate what can happen when a prosecutor engages in a gross abuse of discretion.

Improving Prosecution

The US Supreme Court noted the following in its majority opinion in Berger v. U.S.:

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. (295 U.S. 78, 88 [1935])

This language highlights the important role of the prosecutor in criminal cases. Although the prosecutor may fight to win the case, the goal is to bring about a just result. In the process, prosecutors must avoid improper conduct that is intended to bring about a wrongful conviction.

As previously discussed, prosecutors enjoy a great deal of power. This is not to say, however, that all prosecutors abuse this power or that the majority of prosecutors do not care about whether they convict an innocent person. Instead, the point is that prosecutors possess a great deal of control in how cases are handled. This points to the fact that their power and discretion can be utilized to ensure that cases are handled properly and in accordance with all ethical guidelines and legal requirements. If prosecutors do make the decision to focus their efforts on seeking justice rather than thinking only about conviction rates, this could change the culture of district attorneys’ offices around the country. Such a cultural change could foster an environment in which future wrongful convictions are seen as both unacceptable and preventable. Indeed, there are two key means by which prosecutors’ offices can ensure that they seek justice and avoid contributing to wrongful convictions: the establishment of conviction integrity units and by support for post-conviction DNA testing.

Conviction Integrity Units

In January of 2007, newly elected Dallas County District Attorney Craig Watkins was sworn into office. After realizing that Dallas County led the nation in wrongful convictions, he established a Conviction Integrity Unit (Dallas County District Attorney n.d.). Working with the Innocence Project of Texas, the unit now reviews and reinvestigates legitimate post-conviction claims of innocence. It also reviews and prosecutes old cases, those that are DNA and non-DNA related, when there is evidence identifying different or additional perpetrators. To date, the Conviction Integrity Unit has reviewed more than 300 cases and has helped contribute to the running total of more than 20 wrongly convicted inmates coming out of Dallas County (Dallas County District Attorney’s Office n.d.).

Dallas County’s Conviction Integrity Unit conducts investigations of valid claims, which may require the review of case files, interviewing witnesses, and conducting DNA testing. The county also maintains an open-file policy, which allows defense attorneys to have access to all case files, even at the post-conviction stage (Dallas County District Attorney’s Office n.d.). In a number of instances, investigations have led the district attorney to even support the exoneration and release of individuals who have been wrongfully convicted (Dallas County District Attorney’s Office n.d.). In addition to exonerating those who have been wrongfully convicted, the unit has also reported instances of confirming the guilt of previously prosecuted individuals.

The Dallas County experience has encouraged similar reforms around the country. For example, in March of 2010, Manhattan District Attorney Cyrus R. Vance, Jr. created a Conviction Integrity Program with the goal of addressing claims of actual innocence and preventing future wrongful convictions. In addition to reinvestigating cases it deems as having meaningful claims of innocence, the unit also utilizes senior members of the staff in order to ensure that the policies of the office are proper in terms of preventing errors, such as false confessions and eyewitness misidentifications. The program also solicits advice from criminal justice experts who serve on the unit’s policy advisory panel and who offer advice on the best practices for minimizing wrongful convictions (New York County District Attorney’s Office n.d.).

Post-Conviction DNA Testing

Prosecutors should refrain from challenging requests that have been filed by convicted defendants seeking post-conviction DNA testing, especially when these requests are properly filed. In addition, prosecutors should support these requests in the sense that they are an opportunity to determine the truth. Although some prosecutors chose not to oppose requests early on, some exonerees report having faced resistance when they attempted to obtain DNA testing to prove their innocence (Garrett 2008).

Prosecutors have become more open to post-conviction DNA testing as a result of changes in state law (Garrett 2008). Forty-eight states currently have some sort of legislation that allows for access to post-conviction DNA testing (Innocence Project n.d.). Some of the elements of these statutes (depending on the state) involve appointing counsel to indigent defendants, setting forth the requirements to qualify for testing, providing information on which laboratory will be used for testing, and specifying who will shoulder the costs of testing (Swedlow 2002).

Despite the benefits associated with such statutes, a number of deficiencies need to be overcome. Several have been identified: (1) not allowing for DNA testing if the person seeking relief entered a guilty plea, (2) not making allowances for individuals that are no longer in custody, (3) not making allowances for individuals who want to challenge one conviction in spite of the fact that they are serving time for a second conviction, (4) not taking into consideration issues that may arise concerning the timing of when these requests should be filed, (5) not allowing successive petitions, and (6) failing to set forth what the proper procedural steps will be if the DNA testing exonerates an individual (Swedlow 2002).

Regardless of their potential limitations, DNA testing statutes play a pivotal role in the criminal process. Without such laws, individuals seeking DNA testing would be at the mercy of law enforcement (Kreimer and Rudovsky 2002). Moreover, access to DNA testing could be blocked, such as out of a desire to uphold the finality of a court’s decision, because of testing cost concerns, or due to a belief that a guilty verdict is solid and should be upheld (Kreimer and Rudovsky 2002).

Other Policy Recommendations

To the extent that prosecutors’ offices have a role in the incidence of wrongful convictions, they should take aggressive steps to ensure that actual perpetrators are held accountable. Of course, prosecutors are not solely to blame for wrongful convictions; additional justice system reforms are necessary. Several such reforms are readily identifiable.

First, prosecutors should ensure that evidence is being properly preserved, even after an individual is convicted. It has been noted that DNA evidence is not preserved in a large percentage of cases (Garrett 2008). A lack of DNA evidence creates a roadblock for convicted persons who wish to prove their innocence, making it more difficult or even impossible to secure an exoneration. Further, DNA testing has resulted in finding the actual perpetrator in almost 40 % of the DNA exonerations (Innocence Project n.d.). The failure to preserve evidence could prevent the police and prosecution from finding the actual offender once the innocence of the exoneree is proven.

Second, prosecutors should support police reforms that have been based on research identifying factors leading to wrongful convictions. Consider lineups. As previously mentioned, eyewitness misidentification has long been identified as a leading cause of wrongful convictions. Research has suggested that “double-blind” lineups should be utilized so that police officers cannot be suggestive in any manner during lineup administration (Gould and Leo 2010). Doubleblind lineups reduce the likelihood of suggestion because neither the officer nor the eyewitness knows the identity of the suspect (Gould and Leo 2010). Prosecutors should push for the implementation of lineup reform in police departments across the country. Doing so can only serve to improve the evidence with which they get to work.

Third, encouraging prosecutors to play some sort of role in the innocence movement could be beneficial. They need to further grasp the extent of the wrongful conviction problem and gain additional awareness of the role of prosecution in past wrongful convictions. Requiring prosecutors to “participate” in the innocence movement to a certain degree could also add to its credibility. This participation could be as simple as establishing a program or policy that resembles the Conviction Integrity Unit in Dallas County. Since prosecutors will likely have access to special resources that defense attorneys may not, establishing a specialized unit within the prosecutor’s office could result in not only uncovering miscarriages of justice but also confirming the guilt of convicted individuals.

Fourth, the importance of leadership in prosecutors’ offices cannot be overemphasized (Scheck et al. 2000). District attorneys and assistant district attorneys in positions of leadership could set the example for other prosecutors in their offices. They could make it clear that their office respects the law and intends to adhere to ethical guidelines and all applicable legal requirements. This could serve as a catalyst in creating the appropriate culture in prosecutors’ offices that may be lacking such qualities. At the very least, instilling in prosecutors the notion that although convictions are important justice is only served when the correct person is convicted for the crime could play a major role in improving some of the aforementioned problems associated with prosecution and wrongful convictions.

Fifth, in an effort to address some of the concerns associated with prosecutorial misconduct, prosecutors’ offices around the country should consider implementing written policies to ensure that misconduct will not be tolerated. These policies could include guidelines that set forth monitoring and disciplinary procedures that offices rely on when misconduct is suspected or occurs (Ridolfi and Possley 2010).

Sixth, prosecutors’ offices and law enforcement agencies could implement written policies that dictate how exculpatory evidence will be handled. These policies should include proper training for prosecutors and law enforcement officials. In addition, they should provide guidelines regarding the disclosure of evidence to ensure that law enforcement is making prosecutors aware of exculpatory evidence and, in turn, that prosecutors hand that evidence over to the defense (Ridolfi and Possley 2010). Written policies, along with proper training, could assist in preventing or reducing the failure of prosecutors to hand over exculpatory evidence.

Seventh, the immunity protection enjoyed by prosecutors should be narrowed, allowing for lawsuits to be filed based on intentional misconduct (Scheck et al. 2000). This would allow for wrongfully convicted individuals to file civil suits against prosecutors that, for instance, let a witness testify against a defendant when the prosecutor knows he or she is lying or intentionally conceals evidence that demonstrates a defendant’s guilt (Scheck et al. 2000). Permitting these lawsuits to proceed would prevent prosecutors from asserting immunity as a defense in order to get a suit dismissed. The filing of such lawsuits could serve as a deterrent to “the most outrageous practices, while not interfering with conscientious officials” (Scheck et al. 2000, p. 181).

Lastly, in the interest of justice, prosecutors should support and encourage the provision of adequate assistance to exonerees upon their release from prison. The post-incarceration needs of exonerees and the impact of wrongful convictions have been amply documented. Exonerees often face difficulty finding housing, lack sufficient resources, and are often unable to obtain reintegration services that would have been available to them had they been paroled (Scheck et al. 2000). In addition, exonerees have to deal with feelings of anger, may become anxious when out in public, may suffer from posttraumatic stress disorder, and have to deal with the fact that personal relationships were damaged or destroyed as a result of them being sent to prison (Denov and Campbell 2005). According to the Innocence Project, only 27 states currently have compensation packages that offer monetary (and possibly other types of assistance) to exonerees once they are released from prison, and some of these packages are extremely limited (Innocence Project n.d.). At a minimum, prosecutors could acknowledge that wrongful convictions occur and that exonerees are in need of assistance once they are released from prison. As such, prosecutors should support both the creation of statutes in states that have none and the improvement of existing statutes that are lacking in the services provided to exonerees.

Conclusion

Wrongful convictions have garnered considerable attention over the past few decades, and the role that prosecutors may play in them has been of increasing interest. Prosecutors enjoy considerable authority and autonomy in the criminal justice system. Unfortunately, their authority and autonomy are sometimes abused. At the same time, however, the tremendous power and discretion that prosecutors enjoy can be used to ensure that each case is handled properly and that justice is sought.

Fortunately, progress is being made. DNA testing statutes, court decisions clarifying rights and setting forth certain paths for individuals to take to seek relief, and the implementation of innovative policies like Dallas County’s Conviction Integrity Unit are designed to ensure that those who are wrongfully convicted (or even think they are) have some mechanism for challenging their convictions. With continued efforts on the part of everyone involved in the process, including prosecutors, positive change will continue to take place.

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