Convicting the Innocent: A U.S. Tale

1. Convicting the Innocent:A U.S. Tale Richard Lempert

2. Before I Begin • Apology • The story should be comparative. • Don’t 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.

3. 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.”

4. 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.

5. 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.

6. Proof is Difficult • People believe what they want. • Occasional injustices corrected. • “Court of Last Resort.” • General Problem Ignored/Denied.

7. 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.

8. 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

9. 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.

10. 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.

11. 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

12. 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.

13. 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%

14. Differences Between Studies • Eyewitness testimony presence. • Depends on number of rape cases. • Garrett doesn’t 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.

15. 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.

16. 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.

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

18. 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 Gross’s exonerees under 18 confessed compared to 13% of adults; about 70% of those retarded or mentally ill or under 15 confessed.;

19. Why Aren’t 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. (Bail=not indigent.)

20. Why aren’t 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.

21. Why aren’t 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.

22. Why aren’t 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 don’t suggest mistake in verdict. • Supreme Court appeal useless. • Refused to hear 30 of 31 innocents who sought review; upheld conviction in 31st case.

23. 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 & O’Brien: 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.

24. Why have we tolerated error? • We didn’t 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 didn’t want to know (No resources for post conviction research; protesting innocence hurt parole chances.)

25. 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.

26. Why have we tolerated error? • It doesn’t 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.

27. 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.

28. What has DNA done? • Changed everything. • Individual exonerations may: • Reopen’s victim’s 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.

29. 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.

30. 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.)

31. 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?

32. 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?

33. 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?