Category Archives: Scholarship

New Scholarship Spotlight: Innocence Found: The New Revolution in American Justice

Keith Findley, President of the Innocence Network, has posted the above-titled chapter on SSRN.  Download here:  The summary says:

This short extract — the first four pages of Chapter 1 in an edited volume, Controversies in Innocence Cases in America — begins to describe the history and significance of the Innocence Movement in the American Criminal Justice System. The full chapter traces the origins of the innocence organizations that came together to form the Innocence Network and fostered the new Innocence Movement, the manner in which the Innocence Movement has created an impetus and model for criminal justice reform that shifts the focus from the Warren Court’s due process revolution of the 1960s to a more substantive focus on reliability. In this framework, the chapter then considers some of the specific reforms that have emerged from the Innocence Movement’s focus on substantive justice, and the challenges that lie ahead.

New Scholarship Spotlight: In Defense of American Criminal Justice

The Honorable J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit has published the above-titled article in the Vanderbilt Law Review.  It argues that the system is not nearly as broken as many critics allege, some convictions of innocents is part of a necessary trade-off, and that the reforms pushed by the Innocence Movement often go to far.

Have a read here.

New Scholarship Spotlight: The Consequences of Error in Criminal Justice

Daniel Epps has posted the above-titled article on SSRN.  Download here.   Abstract below.  I haven’t read the piece yet, but the friend who sent it to me read it and said, “These kids with their Harvard degrees and Supreme Court clerkships and no real experience in the criminal law trenches can be really scary.”   Have a read…Enjoy!

“Better that ten guilty persons escape, than that one innocent suffer,” William Blackstone’s famous adage, stands for a powerful idea in the criminal law: that it’s essential to minimize wrongly convicting the innocent even at the expense of overall accuracy. This “Blackstone principle” accords with most people’s deeply felt intuitions about criminal justice.

This Article challenges that fundamental precept. It begins by situating the Blackstone principle in the history of Anglo-American criminal law. That history shows how the principle gained prominence — most notably, because in Blackstone’s time and earlier death was the exclusive penalty for many crimes — but provides no compelling justification today.

The leading modern argument for the Blackstone principle is that false convictions are simply more costly than false acquittals. But that argument is incomplete, because it focuses myopically on the costs of errors in individual cases. A complete analysis of the Blackstone principle requires taking stock of its dynamic effects on the criminal justice system as a whole. The Article conducts that analysis, which reveals two significant but previously unrecognized draw-backs of the Blackstone principle: First, its benefits to innocent defendants are smaller than usually assumed; it could even make those defendants worse off. Second, the principle reinforces a widely recognized political process failure in criminal justice, hurting not just defendants but society as a whole. The magnitude of these effects is uncertain, but they could more than cancel out the principle’s putative benefits.

The Article then analyzes alternative justifications for the Blackstone principle. None is satisfactory; each rests on dubious empirical premises, logical errors, or controversial premises. There is thus no fully persuasive justification for the principle. Rejecting the Blackstone principle would require us to re-think — although not necessarily redesign — various aspects of our criminal-procedure system.

New Scholarship Spotlight: A Systems Approach to Error Reduction in Criminal Justice

John Hollway, for the Quattrone Center for the Fair Administration of Justice, has posted the above-titled article on SSRN.  Download here.  The abstract states:

The “systems approach” has been used, improved, and refined over time to improve safety and reduce errors in a variety of complex, high-risk industries, including health care, aviation, and manufacturing, among others. Such an approach targets the system for improvement rather than specific individuals within the system, and seeks to provide an environment that maximizes each participant’s ability to act safely and in a way that achieves the goals of the system. It prizes a non-punitive culture of disclosure to identify errors, gathers and applies data to understand the causes of the error, and tests systems changes to prevent future errors. This focus on system improvement, rather than on individual punishment or blame, unites all participants around objective criteria and allows each participant to do his or her job more efficiently, accurately and safely.

While the challenge of preventing errors in well-meaning complex systems is neither new nor unique to criminal law, the need for error reduction in the criminal justice system is clear. This document advocates for the application of a systems approach to reducing errors in the criminal justice system, generating reform in a fashion that will unify well-intentioned but professionally adversarial participants around an objective shared by all: the integrity of investigations, prosecutions, and adjudications, and the elimination of known and currently unknown errors that undermine the fair administration of justice. It then sets forth requirements for the successful application of a systems approach, and a model for interaction among researchers, reformers, and practitioners in the criminal justice system – including prosecutors, defense attorneys, judges, and law enforcement officials – that will allow for more rigorous analyses of the criminal justice system and the design, testing, dissemination and implementation of successful best practices that will improve the fair administration of justice.

Book Review – Forensic Testimony; Science, Law and Expert Evidence

 

Bowers book

There has been a recent addition to the literature regarding the validity of forensic evidence and the power that expert testimony has in court.  The book Forensic Testimony; Science, Law and Expert Evidence is written by C. Michael Bowers and published by Elsevier Academic Press.

Professor Jane Taylor, University of Newcastle, New South Wales, Australia has reviewed the book, and you can read that review here.

I have had the opportunity to personally review this book, and can say without question that it is a must read for anyone who deals with the validity (or lack of) and the power of forensic evidence and expert testimony in a trial.

The book really resonates with me, because it emphasizes the problems with the “uniqueness principle” and the use of flawed inductive reasoning in the development of the forensic disciplines (I refuse to call them “sciences.”) that I have been preaching about for years.

I most highly recommend it.  The book is available on Amazon here.

The chapter headings:

Chapter 1     The History of Experts in English Common Law, with Practice Advice for Beginning Experts

Chapter 2     Science and Forensic Science

Chapter 3     The Admissibility of Forensic Expert Evidence

Chapter 4     Professional Forensic Expert Practice

Chapter 5     Managing Your Forensic Case From Beginning to End

Chapter 6     Character Traits of Expert Witnesses: The Good and the Bad

Chapter 7     Voir Dire and Direct Examination of the Expert

Chapter 8     Cross Examination: The Expert’s Challenge and the Lawyer’s Strategies

Chapter 9     Uniqueness and Individualization in Forensic Science

Chapter 10   Forensic Failures

Chapter 11   Forensic Expert Ethics

Chapter 12   The Unparalleled Power of Expert Testimony

 

 

New Scholarship Spotlight: Expert Testimony on Interrogation and False Confession

Innocence Network President Keith Findley and others have posted the above-titled article on SSRN.  Download here.  The abstract states:

This article examines the need and bases for expert testimony on false confessions in criminal cases. Drawing on social science research, the article first briefly assesses the role of false confessions in wrongful convictions, including the nature of the false confession problem and the impact of false confessions in producing false convictions as well as in tainting other evidence and other aspects of police investigations. The article then turns to admissibility standards that govern expert testimony and their application to false confession expert testimony. In particular it sets forth the typical standards used for assessing admissibility of expert evidence and then shows that, when those standards are applied objectively, appropriately framed expert testimony on false confessions should be admissible in most cases. In particular, the article discusses the research on false confessions to highlight the types of facts that experts can provide to juries. The article then addresses the most prominent systemic response to coerced confessions “the Miranda warnings.” The article examines psychological research to demonstrate that Miranda provides very little protection against coerced and false confessions, and, therefore, cannot provide justification for dispensing with expert testimony.

 

 

National Academy of Sciences Study: Over Four Percent of People Sentenced to Death are Likely Innocent

New peer-reviewed research indicates that at least 4.1 percent of defendants sentenced to death in the United States are likely innocent. The article, “Rate of False Conviction of Criminal Defendants who are Sentenced to Death,” published today in one of the world’s most respected scientific journals—Proceedings of the National Academy of Sciences—is available at http://www.eurekalert.org/account.php

“This study provides the first rigorous estimate of the rate of conviction of innocent criminal defendants in any context. It shows that the number of innocent people sentenced to death is more than twice the number of inmates actually exonerated and freed by legal action,” said Bruce Levin, Ph.D., Professor and Past Chair, Department of Biostatistics, Mailman School of Public Health Columbia University. Levin, an expert in statistics, did not participate in the research but is familiar with the study. Continue reading

Thursday’s Quick Clicks…

Swirls and Whorls: Litigating Post-Conviction Claims of Fingerprint Misidentification after the NAS Report

U of Washington Professor, and director the Innocence Project Northwest, Jackie McMurtry has posted the above-titled article on SSRN.  Download here.  The abstract states:

The National Research Council of the National Academies’ 2009 report, Strengthening Forensic Science in the United States: A Path Forward (“NAS Report”), noted that “[t]he number of exonerations resulting from the analysis of DNA has grown across the country in recent years, uncovering a disturbing number of wrongful convictions — some for capital crimes — and exposing serious limitations in some of the forensic science approaches commonly used in the United States.” The evidence can include the comparisons of bite marks, hairs, voiceprints, earprints, and fingerprints.

This article provides a brief outline of latent fingerprint evidence as it is currently presented in courts. Latent fingerprint individualization was rapidly accepted as forensic identification evidence, largely without question — and before being validated through scientific research. Legal challenges only began in the 1990s. Although the NAS Report’s discussion of fingerprint identification raises many questions, petitioners who claim to have been wrongly convicted because of it will still face substantial hurdles.

New Scholarship Spotlight: The Banality of Wrongful Executions…

Virginia professor Brandon Garrett has posted the above-titled article, reviewing several important books, on SSRN.  Download here.  The abstract states:

What is so haunting about the known wrongful convictions is that they are the tip of the iceberg. Untold numbers of mundane errors may escape notice while sending the innocent to prison and even to the death chamber. That is why I recommended to readers a trilogy of fascinating new books that look into the larger but murkier problem of error. In this article for Michigan Law Review’s annual book issue, I review three books: Los Tocayos Carlos, by James Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky; Anatomy of Injustice: A Murder Case Gone Wrong, by Raymond Bonner; and In Doubt: The Psychology of the Criminal Justice Process, by Dan Simon. Each of these books brings important new perspective and understanding to the reasons why our criminal justice system can make terrible mistakes.

“Flawed Convictions – Shaken Baby Syndrome and the Inertia of Injustice”

flawed conv

Sue Luttner has posted an excellent piece on her blog OnSBS about the new book by Prof. Deborah Tuerkheimer to be released in April – Flawed Convictions – Shaken Baby Syndrome and the Inertia of Injustice.

Please see Sue’s post here.

This book will be a must read for any involved in the SBS debate.

New Scholarship Spotlight: The Need for Defense Access to the Law Enforcement DNA Database

Jason Kreag has posted Letting Innocence Suffer:  The Need for Defense Access to the Law Enforcement DNA Database on SSRN.  Download here.   The abstract states:

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants’ innocence post-conviction. This Article fills that void by identifying a limited due process right to defense-initiated DNA database searches. The Article argues that the database is a powerful truth-promoting tool that should be available to law enforcement and defendants alike. Because legislators have failed to promote the search for actual offenders through statutory rights of access, this Article presents the constitutional authority for defense-initiated searches to vindicate the rights of innocent defendants.

New Scholarship Spotlight: Cognitive bias in forensic anthropology

Itiel Dror and others have posted the newest piece on the issue of confirmation bias in forensics.  If you haven’t been introduced to Dror’s body of work yet, check it out here.  The abstract of the newest paper, which can be downloaded in full here, states:

An experimental study was designed to examine cognitive biases within forensic anthropological non-metric methods in assessing sex, ancestry and age at death. To investigate examiner interpretation, forty-one non- novice participants were semi randomly divided into three groups. Prior to conducting the assessment of the skeletal remains, two of the groups were given different extraneous contextual information regarding the sex, ancestry and age at death of the individual. The third group acted as a control group with no extraneous contex- tual information. The experiment was designed to investigate if the interpretation and conclusions of the skeletal remains would differ amongst participants within the three groups, and to assess whether the examiners would confirm or disagree with the given extraneous context when establishing a biological profile. The results revealed a significant biasing effect within the three groups, demonstrating a strong confirmation bias in the assessment of sex, ancestry and age at death. In assessment of sex, 31% of the participants in the control group concluded that the skeleton remains were male. In contrast, in the group that received contextual information that the remains were male, 72% concluded that the remains were male, and in the participant group where the context was that the remains were of a female, 0% of the participants concluded that the remains were male. Comparable results showing bias were found in assessing ancestry and age at death. These data demonstrate that cognitive bias can impact forensic anthropological non-metric methods on skeletal remains and affects the interpretation and con- clusions of the forensic scientists. This empirical study is a step in establishing an evidence base approach for dealing with cognitive issues in forensic anthropological assessments, so as to enhance this valuable forensic sci- ence discipline.

Predicting Wrongful Convictions Statistically…

A group of scholars, including Jon Gould, Julia Carrano, Richard Leo and Katie Hall-Jares have posted an interesting article, Predicting Erroneous Convictions, on SSRN.  The article is forthcoming at the Iowa Law Review.  Download here.  The abstract states:

The last thirty years have seen an enormous increase not only in the exonerations of innocent defendants but also academic scholarship on erroneous convictions. This literature has identified a number of common factors that appear frequently in erroneous conviction cases, including forensic error, prosecutorial misconduct, false confessions, and eyewitness misidentification. However, without a comparison or control group of cases, researchers risk labeling these factors as “causes” of erroneous convictions when they may be merely correlates. This article reports results from the first large scale empirical research project to compare wrongful convictions with other innocence cases in which the defendant escaped conviction (so-called “near misses”). Employing statistical methods and an expert panel, the research helps us to understand how the criminal justice system identifies innocent defendants in order to prevent erroneous convictions. In another first, the research secured the cooperation of practitioners from multiple sides of the criminal justice system, including the national Innocence Project, the Police Foundation, the Association of Prosecuting Attorneys, and the National District Attorneys Association. The results highlight ten factors that distinguish wrongful convictions from near misses, but the larger story is one of system failure in which the protections of the criminal justice system operate in a counterintuitive manner. The article closes with a series of policy reforms to address these failings.

New Scholarship Spotlight: Police Misconduct as a Cause of Wrongful Conviction…

Russell Covey has posted the above-titled article on SSRN.  Download copy here.

The abstract states:

This study gathers data from two mass exonerations resulting from major police scandals, one involving the Rampart division of the L.A.P.D., and the other occurring in Tulia, Texas. To date, these cases have received little systematic attention by wrongful convictions scholars. Study of these cases, however, reveals important differences among subgroups of wrongful convictions. Whereas eyewitness misidentification, faulty forensic evidence, jailhouse informants, and false confessions have been identified as the main contributing factors leading to many wrongful convictions, the Rampart and Tulia exonerees were wrongfully convicted almost exclusively as a result of police perjury. In addition, unlike other exonerated persons, actually innocent individuals charged as a result of police wrongdoing in Rampart or Tulia only rarely contested their guilt at trial. As is the case in the justice system generally, the great majority pleaded guilty. Accordingly, these cases stand in sharp contrast to the conventional wrongful conviction story. Study of these groups of wrongful convictions sheds new light on the mechanisms that lead to the conviction of actually innocent individuals.

2014 Innocence Network Conference Call For Papers

Dear Friends and Colleagues,

The 2014 Innocence Network Conference is being held in Portland, Oregon on April 11-12 (http://www.innocencenetwork.org/conference).

 I am chairing the Innocence Scholarship panel session and seeking paper submissions for consideration. If either you, or someone you know would like to present their new scholarly research pertaining to wrongful conviction at the 2014 Innocence Network Conference, please have them contact me via email. Also, please feel free to share this request for papers with others who may be outside the Network and who may not have access to this list.
We are specifically seeking high quality scholarship. Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction. International papers are welcome but must be submitted in English. Please submit a title and abstract to me by January 31, 2014.
Thanks!
Dr. Robert Schehr
Professor, Department of Criminology and Criminal Justice
Executive Director, Arizona Innocence Project

ArizonaInnocenceProject.org

Northern Arizona University

P.O. Box 15005
Flagstaff, Arizona 86001-5005
928.523.9979

Blog editors discuss wrongful convictions in China

Wrongful Convictions Blog editor Mark Godsey, left, and contributing editor Nancy Petro, second from right, are shown visting the Great Wall of China on Saturday. They are joined by Mark’s wife, defense attorney Michelle Berry Godsey, and Nancy’s husband, former Ohio attorney general Jim Petro. All four were invited to China to discuss wrongful convictions throughout the world.

China

Law Review Issue on Wrongful Convictions Around the Globe Now in Print…

Cover

At long last, the University of Cincinnati Law Review symposium issue stemming from the 2011 International Innocence Conference in Cincinnati is finally in print.  The edition contains articles discussing and summarizing the causes and extent of wrongful conviction in countries across the globe.  You can find the entire volume here.  Congrats to all involved on completing this important work.

New Scholarship Spotlight: Lessons from Inquisitorialism

image.phpVanderbilt Law Professor Christopher Slobogin has posted the above-titled article on SSRN.  Download here.  The abstract states:

The adversarial system as it is implemented in the United States is a significant cause of wrongful convictions, wrongful acquittals and “wrongful” sentences. Empirical evidence suggests that a hybrid inquisitorial regime would be better than the American-style adversarial system at reducing these erroneous results. This paper proposes the integration of three inquisitorial mechanisms into the American trial process — judicial control over the adjudication process, non-adversarial treatment of experts, and required unsworn testimony by the defendant — and defends the proposals against constitutional and practical challenges. While other scholars have suggested borrowing from overseas, these three proposals have yet to be presented as a package. Together they could measurably enhance the accuracy of the American criminal justice system.

 

New Scholarship Spotlight: Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases

Professor Stephanie Roberts Hartung has posted the above-titled article on SSRN.  Download here.  This article is on an important issue that causes serious problems for innocent habeas petitioners.  The abstract states:

The DNA exoneration data stemming from the Innocence Movement exposes a harsh reality in our criminal justice system: existing post-conviction review procedures fail to accurately identify and remedy wrongful convictions of the innocent. While the layers of review available upon conviction are seemingly exhaustive, in fact, the factually innocent prisoner is confronted with little more than a façade of protection. At the federal habeas stage, several provisions of the Anti-Terrorism and Effective Death Penalty Act [AEDPA] operate to foreclose viable claims of innocence. Further, the federal courts entertain second or successive habeas petitions in a piecemeal fashion, if they do so at all. This “piecemeal approach” negatively impacts prisoners raising claims of factual innocence, in light of their typically pro se status and incarceration. In reviewing each successive habeas petition in isolation, without regard to previous claims, the courts often miss the forest for the trees, allowing innocent prisoners to remain in custody.

This Article discusses the piecemeal problem inherent in federal habeas review procedures, provides a case illustration, and advocates for a broader reading of the “evidence as a whole” language in AEDPA’s 28 U.S.C. Section 2244(b)(2). This broader interpretation, already adopted by the Fourth Circuit, would allow courts to review a petitioner’s successive habeas claims in the aggregate, and thus, more readily identify cognizable claims of factual innocence. This Article contributes to the ongoing debate as to how the competing post-conviction interests of finality and fairness should be recalibrated in light of the DNA exoneration data brought forth by the Innocence Movement.