Convicting the Innocent: A U'S' Tale

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Convicting the InnocentA U.S. Tale

• Richard Lempert

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Before I Begin

• Apology
• The story should be comparative.
• Dont know of other data.
• Does the U.S. Experience apply to Brazil? Italy?
  Other countries?
• You can decide.
• I will share some thoughts in conclusion.

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Is there a problem?

• Judge Learned Hand "Our procedure has always
  been haunted by the ghost of the innocent man
  convicted. It is an unreal dream."
• But No doubt grand juries err and indictments
  are calamities to honest men
• And we must work with human beings and we can
  correct such errors only at too large a price.

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A Rare Problem

• Some mistakes will happen in any system of human
  judgment, but courts rarely err.
• The more serious the case - rape, murder, death
  penalty the more careful a court will be.
• Every convict claims to be innocent.

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A Contested Matter

• New evidence is discovered (someone else
  confesses) and convict claims innocence.
• Prosecutor denies claim (confessor doing a
  favor).
• Courts unsympathetic.
• Celebrated cases. (Sacco and Vanzetti)
• Collections of errors. (1983 Bedau and Radelet
  23 innocent executions.)
• Markman and Cassell Two prosecutors respond.

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Proof is Difficult

• People believe what they want.
• Occasional injustices corrected.
• Court of Last Resort.
• General Problem Ignored/Denied.

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What has changed?

• In a word DNA.
• Irrefutable proof of innocence.
• DNA taken from a crime scene does not match the
  DNA of the person who has been convicted often
  does match the DNA of another convicted criminal,
  perhaps a known rapist.
• Mistaken convictions can no longer be denied.
• Non DNA exonerations.

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Shocking Findings

• Among people convicted during the past 30 years
  more than 200 have been shown innocent through
  DNA and about another 150 have been proven
  innocent through other evidence.
• The most serious crimes rape, murder, a number
  of people released from death row sometimes with
  a few days of execution.
• Tip of the iceberg. 1000s or even 10,000s may be
  innocent.
• DNA not always saved.
• Many crimes do no involve DNA

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Why does it happen?

• Three situations.
• Rigged political prosecutions.
• Not in the United States. (???)
• Mass exonerations.
• Crooked cop or forensic scientist.
• Error in individual case.
• Focus on the last.

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Four levels of Explanation

• Evidence that misleads. (Police prosecutors,
  trial judges, juries, appellate courts.
• Failure to spot error.
• The production of misleading evidence.
• The toleration of error.

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Some Data

• Exonerations by Crime Type Gross et al.
• Murder205 (60)
• Death Sentences 74 (22)
• Other Murder Cases 131 (39)
• Rape 121
  (36)
• TOTAL 340
• Exonerations by Crime Type Garrett
• Rape 141
  (70.5)
• Murder 12
  ( 6)
• Rape-Murder 44 (22)
• TOTAL 200

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Comparng the Tables

• Almost all serious crimes
• 14 of Gross and 3 of Garrett for some crime other
  than rape or murder.
• Crimes people choose to reinvestigate.
• Crimes with DNA trace evidence.
• Gross more murders and Garrett more rapes.
• Gross exonerations all causes.
• Garrett first 200 DNA acquittals.
• Most rapes have DNA evidence most murders do
  not.

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Evidence in Mistaken Conviction Cases

• Gross
• 
  Murder(205) Rape(121)
• Eyewitness Mis-identification 50
  88
• Reported Perjury
  56 25
• False Confession
  20 7
• Garrett
  All Cases
• Eyewitness Mis-Identification 79
• Forensic Evidence
  55
• InformantTestimony 18
• False Confession
  16

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Differences Between Studies

• Eyewitness testimony presence.
• Depends on number of rape cases.
• Garrett doesnt report perjury.
• Informant testimony involves perjury.
• Confession cases involve perjury in describing
  how interrogation was conducted and/or
  information provided suspect.
• Gross neglects forensic science evidence.

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Eyewitness Identifications

• Most common cause of wrongful convictions,
  especially for rape.
• Often present.
• Convincing and sufficient.
• Well known flaws.
• Excitement interferes with perception.
• Cross-racial ID problems
• Misplaced memories.
• Confidence poor guide to accuacy.
• Suggestive ID procedures.

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Forensic Science Evidence

• Convincing Testimony
• Mystique of science.
• Appears objective.
• Confident, professional witnesses.
• Last piece of puzzle in case.
• Lacking scientific validity or low probative
  value.
• History of failed technologies paraffin tests,
  Neutron Activation Analysis, voiceprints.
• Current suspect areas hair matches, bite mark
  analysis, handwriting comparisons, blood spatter
  analysis, arson identification.

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Informants

• Street sources and jailhouse snitches.
• Criminals themselves.
• Rewarded for providing evidence.
• Private motives.
• Grudge against the defendant.
• Deflect suspicion.

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False Confessions

• Most surprising (If no torture).
• Some few spontaneous.
• Interrogation stress.
• Hopelessness and desperation.
• Promised rewards (e.g Can go home).
• Vulnerable targets.
• Young, mentally retarded, mentally ill.
• 43 of Grosss exonerees under 18 confessed
  compared to 13 of adults about 70 of those
  retarded or mentally ill or under 15 confessed.

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Why Arent Errors Caught?

• Failures of defense counsel.
• Incompetent (asleep in court).
• Assume client guilty (Most are).
• Systemic causes.
• Heavy caseloads.
• Inadequate compensation.
• No money for investigators or experts.
• No defense counsel.
• Unrealistic indigency tests. (Bailnot indigent.)

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Why arent errors caught?

• Influence of race.
• Talia Harmon data examining defendants sentenced
  to death.
• 62 non-whites with white victims were released
  from death row or exonerated compared to 42 of
  whites with white victims. 56 of exonerated/
  released group convicted on one or two types of
  evidence compared to 15 of those executed, and
  51 of non-whites who killed whites convicted on
  1 or 2 types of evidence compared to 27 of
  whites.
• Implication prosecutors are willing to bring
  death penalty cases forward with fewer types of
  evidence when they suspect a non-white of killing
  a white than when they suspect a white, and/or
  juries are willing to convict with fewer types of
  evidence. Since nonwhites are convicted on
  weaker evidence than whites, it is not surprising
  that more are later shown to be innocent.

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Why arent errors caught?

• Problems of cognition.
• Problem of non-whites is not race hatred but
  rather stereotypes mean they look guiltier than
  whites representativeness heuristic.
• Other cognitive problems.
• Tendency to seek only eidence that confirms a
  hypothesis.
• Effect of self-interest in leading police and
  prosecutors under great pressure to solve crimes
  to see what they want to see.
• Effects of emotion exacerbated by allowing
  emotionally arousing irrelevant evidence.

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Why arent errors caught?

• Appeals provide little to the innocent.
• About 9 of Garret sample was reversed, higher
  than 1 overall criminal reversal rate on appeal
  but about the same as 8 rate for matched sample
  who never claimed innocence.
• Appeals are designed to rectify procedural errors
  not substantive errors.
• Strong tendency to accept decision below as
  substantively correct unless procedural error
  closely related to actual innocence. (Brady,
  ineffective assistance.)
• Kinds of common error (e.g. eyewitness
  misidentification, perjury, false cofession dont
  suggest mistake in verdict.
• Supreme Court appeal useless.
• Refused to hear 30 of 31 innocents who sought
  review upheld conviction in 31st case.

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What generates error?

• Actual cases unlike detective stories. Evidence
  comes from knowing suspect not vice versa.
• Police take longer to file charges against
  innocent. (Gross OBrien 64 of executed but
  36 of exonerated arrested within 10 days of
  crime 22 of former and 42 of latter arrested
  one month or more after crime.)
• Need for evidence leads to biased lineups,
  perjured informant testimony, coerced confessions
  designed to make or firm up case against
  suspected criminal.
• Fewer false confessions and less perjured
  testimony in rape than in murder cases because it
  is not needed when there is an eyewitness
  identification. Police stop looking when they
  have enough.
• Prosecutors need evidence to tell story. Let
  jurors sort out weaknesses.
• Rely on weak science, false confessions, etc.

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Why have we tolerated error?

• We didnt know (before DNA)?
• Mistaken eyewitness IDs often like true IDs.
• False confessions often seem true (Facts only
  culprit knew revealed possibility of police
  perjury ignored.)
• Appeals not designed for substantive review.
• We didnt want to know (No resources for post
  conviction research protesting innocence hurt
  parole chances.)

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Why have we tolerated error?

• Errors are inevitable in any human decision
  making system.
• Small number of proven errors not troublesome.
• Level of error not inevitable.
• Better eyewitness ID procedures?
• Videotaping confessions.
• Greater suspicion of informant testimony.
• More rigorous standards for forensic science
  evidence.

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Why have we tolerated error?

• It doesnt matter (much).
• People wrongfully arrested lack influence.
  (young, poor, minorities, mentally ill, criminal
  records.)
• Deterrence depends on people thinking criminals
  have been punished and not whether the right
  person has been punished.
• Police and prosecutors rewarded so long as it
  they have made an arrest and secured a
  conviction?
• Victims get closer when they think the person who
  has harmed them has been caught and punished.
• Justice system seems to be working well when it
  appears to have returned a justified guilty
  verdict.

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Is error beneficial?

• Society (deterence), police and prosecutors job
  approval/rewards) and victims (closure) all may
  be better off if the wrong person is convicted of
  a serious crime than if no one is punished for
  it.
• Who and what suffers?
• The convicted, friends, family.
• Society (unknowingly) as the search for the true
  culprit ends, and he is free to offend again.
• Justice.

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What has DNA done?

• Changed everything.
• Individual exonerations may
• Reopens victims wounds, burden witnesses,
  jurors, prosecutors and others with guilt,
  threten perjurers with punishment, reveal flaws
  in scentific testimony.
• Exonerations as a group have
• Threatened legitimacy of the criminal justice
  system (especially the death penalty).
• Renewed concern over coerced confessions.
• Called attention to police and informant perjury.
• Raised suspicions of much forensic science.
• Called attention to weaknesses of eyewitness
  testimony.

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The Bright Side

• We have a reform moment.
• More reliable line up procedures.
• Videotaping of all police interrogation.
• Pressure on police to preserve evidence.
• Greater skepticism of forensic science
  technologies. (Even fingerprinting.)
• Move toward forensic science/lab accredidation.
• Diminished support for the death penalty.

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BUT!

• Will DNA take away what DNA brought.
• As new cases use DNA, DNA acquittals will
  diminish.
• Other errors will persist, but will the public
  focusing only on DNA and not seeing irrefutable
  proof of error grow again complacent?
• Must we reform soon if we are to reform at all?
• Some prosecutors are fighting reform are they
  playing for time? (e.g. Illinois experiment and
  lineup reform.)

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Is this only a U.S. Tale?

• Do police and prosecutors elsewhere behave
  differently?
• Are they less subject to pressure to close cases?
• Are they less victimized by prejudice and
  cognitive biases? Is their thinking less
  affected by emotion?
• Are lineup ID procedures, techniques for
  eliciting confessions, reliance on informants
  handled better elsewhere than in the United
  States?
• Does forensic science play a different role in
  other countries?
• Are questionable technologies rejected?
• Are forensic scientists less likely to identify
  with the prosecution?
• Are scientists and laboratories accredited based
  on proficency testing and other procedures?

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Only a U.S. Tale? (cont.)

• Do defendants have better legal assistance
  elsewhere?
• Do their counsel have reasonable case loads?
• Are there funds for defense investigators and
  experts?
• Are defense counsel adequately paid, and do the
  have incentives that reward freeing the innocent?
• Do professional judges or mixed courts do a
  better job spotting innocents than American
  courts and juries?
• Are they less likely to be swayed by emotions,
  prejudice, stereotypes, expectations and
  cognitive biases generally?
• Are they rewarded as much for acquittals as
  convictions?
• Do they acquit more or less frequently than U.S.
  Courts?

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Only a U.S. tale? (cont.)

• Does the appeal process grant the wrongfully
  convicted greater protection than in the U.S.?
• Can the court review for substantive as opposed
  to procedural error?
• How often do appellate courts engage in
  substantive review and how often do they find for
  the convicted?
• Do those convicted of crimes have a meaningful
  opportunity to reopen their cases on the basis of
  newly discovered evidence?
• Do erroneous convictions matter more in other
  countries than in the U.S.?
• Are those convicted less likely to be the poor,
  the mentally disturbed, former criminals,
  minorities and the like?
• Are the benefits of convicting the innocent as
  opposed to no one at all less in other countries
  than in the U.S.
• Is the cost of mistaken convictions greater?
• What criminal justice reforms are being
  considered elsewhere?