It is better that one innocent escape than a guilty person be convicted. This twist on Sir William Blackstone’s 18th-century formulation perhaps better fits contemporary criminal justice models with so many innocent individuals serving sentences in local, state, and federal correctional facilities. The escape, of course, is not by unlawful means, but through scientific and legal efforts. The use of DNA testing to exonerate innocent prisoners has led the race in this regard. Over the past 20 years more than 300 individuals in the United States have won their release from prison based largely upon the use of DNA testing by groups commonly referred to as “innocence projects.” Most of the innocent prisoners served a minimum of 10 years by the time of their release, including those on death row.
The Innocence Project was founded in 1992 by Barry Scheck, a law professor, and attorney Peter Neufeld following a government report that indentified faulty eyewitness identification as the primary factor in the majority of wrongful convictions in the United States. Since then, various similar projects have been created throughout the United States as well as in different countries. Many have come together as part of a network of organizations with the goal of proving the innocence of wrongfully convicted persons and seeking to improve the criminal justice system in an effort to prevent wrongful convictions from occurring in the first instance. Some innocence projects will only accept cases where DNA testing may contribute to proving actual innocence. Indeed, the use of DNA test results has been the single most significant factor in making such determinations. Innocence projects often involve lawyers who offer their time and effort on a pro bono basis. Such efforts may also be undertaken by investigative journalists, retired criminal investigators, and forensic scientists.
Based upon the many successful efforts of innocence projects, postrelease studies of exonerated individuals have identified a number of factors that contributed to their convictions. These include witnesses, law enforcement, improper acceptance of scientific or pseudoscientific evidence, prosecutorial misconduct, incompetent defense counsel, judicial error, and jury issues. Often, though, it is a complex interrelation of these factors that leads to wrongful convictions.
Victims and witnesses make false allegations for a number of reasons. Even the most credible and honest people make inaccurate eyewitness identifications whether at the scene of the crime, during a suspect lineup or photo array, or in the courtroom. In fact, one report from the U.S. Department of Justice indicated that approximately 70 percent of wrongful convictions can be attributed to this factor. Testimony by individuals seeking to avoid or mitigate their sentences is not always accurate. Like any other witness, they may or may not be telling the truth. Many innocence projects refer to these individuals as “jailhouse snitches,” but the use of such pejorative terms in an effort to cast even truthful witnesses as liars may be counterproductive to the truth-finding process.
Law enforcement officers, particularly investigators, have been identified in some studies as contributing to wrongful convictions through the presence of investigative tunnel vision and the use of certain interrogation techniques. However, in principle, neither are the direct reasons for wrongful convictions. Tunnel vision may contribute to excluding the true guilty party, but it takes one or more substantive errors, such as those discussed in this essay, or the fabrication of evidence for such a result to occur. False confessions are also a major concern. These are different from coerced confessions obtained by the police from guilty suspects. False confessions are those that are made by people who did not commit the crime. They are more frequently seen among members of vulnerable populations such as juveniles, the elderly, and the mentally impaired. Innocent adults of sound mind have also confessed to crimes they did not commit for a number of reasons including police misconduct or to “take the rap” for another person. In either case, it is most often the intentional or careless conduct of the investigator that brings about the false confession, not an interrogation technique that has been deemed to be lawful by the courts.
The improper admission of expert testimony is certainly a contributing factor to wrongful convictions. Juries and even judges are often swayed by scientific or technical evidence. But the admission of such evidence where error exists or when not based upon certain scientific standards can produce disastrous results in the administration of justice. Similarly, the exclusion of sound scientific evidence, whether inculpatory or exculpatory, can lead to inaccurate conclusions in the courtroom. These issues are so significant that the National Academy of Sciences has urged comprehensive reform of forensic science in the United States with a number of recommendations, including the independence of forensic science laboratories from law enforcement agencies.
Prosecutors sometimes play a role in wrongful convictions. Like any other actor in the criminal justice system, they may operate with malicious motives, disregard or fail to disclose exculpatory evidence, or engage in race-based jury selection or other unethical conduct in order to secure a conviction. Prosecutors may simply “outgun” the defense attorney in the courtroom. This is by no means a fault on the part of the prosecutor, but it does identify another weakness in the criminal justice system, particularly when capital cases are involved.
Judges and juries cannot escape responsibility for sending innocent persons to prison. Like police officers, judges and jurors must consider and evaluate the veracity and credibility of witnesses; and like police officers, sometimes they are wrong. Even the highest courts in the United States recognize that judges and jurors often make such determinations based strictly on the witness’s demeanor on the stand. Judges, as the triers of law, also may err in their rulings on the admission of physical or testimonial evidence, which can have a drastic effect on the outcome of the proceedings.
The grand jury is designed to serve as a buffer between the government and the people. The idea is that no person should be subjected to the harshness and consequences of a criminal prosecution without having been first approved by the citizens of a community. In reality, a grand jury indictment is correctly referred to as a “rubber stamp” for the prosecutor. The petit or trial jury, as the trier of fact, makes the ultimate determination of guilt or innocence. Rarely will a judge disturb the findings of a jury. Even though instructed otherwise, jurors may also draw negative inferences in cases where defendants do not testify on their own behalf during the trial. All of this leaves room for error relative to whether a particular defendant is guilty or innocent. Adding to this is the burden of proof in a criminal case. It is a heavy burden on the prosecution, indeed, but it must be remembered that such a standard does not require the absence of any doubt in the mind of the juror, only that there be no reasonable doubt.
The reaction to the identification of factors that contribute to wrongful convictions has been mixed. There are prison wardens who have proclaimed that there are no innocent people serving time in their facilities. There are prosecutors who have refused to reopen cases or to cooperate in the testing of DNA even when confronted with credible evidence to support such an undertaking. On the other hand, there are prosecutors who have created conviction integrity units for the sole purpose of examining old cases and to prevent future occurrences. Innocence commissions have been created to examine the issues and to make recommendations to the executive, legislative, and judicial branches of government. The law enforcement community has become much more involved in assessing what it can do to prevent such occurrences. In fact, the International Association of Chiefs of Police has even convened a summit on the issue with the goal of preventing wrongful arrests and convictions.
There can be no question that the efforts of innocence projects across the country have directly resulted in the release of innocent men and women who should never have been convicted and imprisoned. These groups have also identified a number of factors that led to these unfortunate results. When the contributing factors are considered, one can see that the major cause of wrongful convictions is a complex interrelationship of many of the components of the American criminal justice system. While this system is said to be the best in the world, it is not perfect. It is doubtful that the efforts of innocence projects will ever lead to a perfect criminal justice whereby no innocent person is ever convicted. By staying focused on exonerating the factually innocent, however, and seeking realistic reforms based upon sound empirical research, innocence projects will continue to make significant contributions to the proper and effective administration of justice.
- Burns, Sarah. The Central Park Five: The Untold Story Behind One of New York City’s Most Infamous Crimes. New York: Vintage, 2012.
- Eggers, Dave and Lola Vollen, comps. Surviving Justice: America’s Wrongfully Convicted and Exonerated. San Francisco: McSweeny’s, 2005.
- Grisham, John. The Innocent Man: Murder and Injustice in a Small Town. New York: Dell, 2012.
- Scheck, Barry, Peter Neufeld, and Jim Dwyer. Actual Innocence: When Justice Goes Wrong and How to Make It Right. New York: New American Library,
- Wells, Tom and Richard Leo. The Wrong Guys: Murder, False Confessions, and the Norfolk Four. New York: New Press, 2008.
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