Category Archives: Scholarship

From news source:

Why do innocent people go to jail in the United States every year for violent crimes they did not commit? It’s a serious question representing the ultimate miscarriage of justice—taking away the freedom of a factually innocent person while also allowing the guilty person to remain free. The U.S. Department of Justice’s National Institute of Justice (NIJ) wanted to learn answers to prevent wrongful convictions in the first place.

Jon B. Gould, J.D., Ph.D., a professor and the director of the Washington Institute for Public and International Affairs Research at American University and his team of researchers conducted a three year, first of its kind, large-scale empirical study Predicting Erroneous Convictions: A Social Science Approach to Miscarriages of Justice employing social scientific methods. It was funded by NIJ, and an NIJ video features Gould discussing wrongful convictions. After identifying 460 cases employing sophisticated analytical methods matched with a qualitative review of the cases from a panel of experts, 10 statistically significant factors were identified that distinguish a wrongful conviction from a “near miss” (a case in which an innocent defendant was acquitted or had charges dismissed before trial).

“Surprisingly unlike airplane crashes or near midair collisions where the FAA moves in to investigate and reconstruct events in an effort to prevent future catastrophes, wrongful convictions have rarely been investigated beyond a specific case study,” says Gould. “This is especially troubling since our criminal legal system is predicated on finding defendants guilty beyond a reasonable doubt before imprisoning them.”

10 Factors Identified in Wrongful Convictions

•     State death penalty culture/state punitiveness
•     Strength of prosecution’s case
•     Prosecution withheld evidence (Brady violation)
•     Forensic evidence errors
•     Strength of defendant’s case
•     Age of defendant
•     Criminal history of defendant
•     Intentional misidentification
•     Lying by non-eyewitness
•     Family witness testified on behalf of defendant

The resulting 10 factor model applied by Gould and his team can be used to accurately predict an erroneous conviction versus a “near miss” nearly 91 percent of the time and is a useful tool for jurisdictions around the country to adopt remedies to address the 10 weaknesses with little cost according to Gould. The biggest investment is time, training and the acknowledgement that there is room for improvement from police, prosecutors and defense interests. A key to the model’s development was the unprecedented cooperation of an expert panel composed of stakeholders from the Association of Prosecuting Attorneys, Police Foundation, National Innocence Project and National District Attorneys Association.

From the quantitative and qualitative analysis, Gould and his team determined that prevention begins at the police station starting with the interrogation and investigation of alibis. This is followed by several opportunities along the way to identify the innocent before they are wrongfully convicted. For example, if forensic testing was conducted earlier and the results became available sooner to investigators innocent suspects could be freed. But faulty identifications, absence of early forensic test results, and inadequate investigation of alibis leads to what Gould characterizes as a “perfect storm” of errors made worse by collective tunnel vision. It should be noted much of this is unintentional.

The 10 factors in various combinations create this tunnel vision where a prosecutor with a weak case focuses on an accused even more intently rather than considering alternative suspects precisely because tunnel vision has set in – in other words the case seems to add up from the investigation but is sufficiently weak relying on perhaps a misidentification. For Gould this was the most surprising result of his research because he and his team expected strong prosecutorial cases to result in wrongful convictions since the evidence was compelling for the prosecutor to seek conviction but instead the study revealed the contrary. This led the team to look at weak defense counsel, poor explanation/presentation of forensic evidence, and police practices that could trigger the course of events spiraling out of control to a wrongful conviction because the weak prosecution case in turn is not adequately challenged by the defense attorney and the prosecution for one reason or the other may fail to disclose exculpatory evidence- a Brady violation.

Finally, the wrongfully convicted skew toward young suspects as well as those who have a prior criminal record. In other words, the defendants are not in a strong position to demand more from prosecutors or even their own defense counsel because they do not have the wherewithal to challenge the charges.

The study concludes that the social science approach is valid and effective in studying miscarriages of justice and should continue. Gould especially is interested in more research on the “near miss” cases to better learn how the criminal justice system can “get it right” when confronted with an innocent defendant. In the coming weeks, Gould will present his research in Seattle, Miami, New York City, Albany, NY, and North Carolina.

Utah professor Paul Cassell has posted the above-titled article on SSRN.  Download here.  The abstract states:

Proceeding from the perspective of “innocentrism” (that is, the idea that exoneration of the “innocent” ought to be privileged over other values in the criminal justice system), I suggest eight proposals for reform: (1) researching the frequency and causes of wrongful conviction; (2) allowing waiver of rights for greater freedom to raise post-conviction innocence claims (Professor Gross’s proposal in this symposium); (3) improving the implementation of existing rules on disclosing exculpatory evidence; (4) increasing resources for defense counsel and prosecutors to focus on issues relating to actual innocence; (5) abolishing the Fourth Amendment exclusionary rule; (6) replacing the Miranda regime with a system of videotaping custodial interrogation; (7) barring prisoners from filing for habeas relief without a colorable claim of actual innocence; and (8) requiring defense attorneys to directly ask their clients if they are actually innocent. These discriminating proposals offer a far greater prospect of providing help to the innocent without blocking conviction of the guilty. A common theme underlying many of them is that they reorient the focus of the criminal justice system away from procedural issues and toward substantive issues of guilt or innocence. Sadly, Bakken’s proposals seem to offer too much procedure and not enough substance, a recipe for helping the guilty. The truly innocent will benefit in a system that values substance over procedure.

Andrew Chongseh Kim has posted the above-titled article on SSRN.  Download here.  The abstract states:

Courts and scholars often assume that granting convicted defendants more liberal rights to challenge their convictions and sentences would necessarily harm society’s various interests in “finality,” the most prominent of which are resource conservation, efficient behavior by defense counsel, and deterrence. The extent to which convicted defendants should be allowed to challenge their judgments depends, according to the common analysis, on how much society is willing sacrifice those interests to validate defendants’ rights. This article argues that although expanding defendants’ rights on post-conviction review inherently makes criminal judgments less “final,” it does not necessarily harm the interests “finality” presumes to protect. Rather, when the financial costs of wrongfulincarceration, resource constraints on defense counsel, and the effects of legitimacy on compliance are considered, it becomes clear that granting more liberal review can often conserve state resources, will rarely affect the behavior of defense counsel at trial, and can help reduce crime.

First, the assumption that defendants’ post-conviction rights impose significant burdens on states ignores the costs of wrongful incarceration. Although recent studies on innocence have demonstrated that successful post-conviction review can produce large incarceration savings, they offer little insight into how significant those savings are compared to the administrative costs of providing the many appeals by defendants who failed to obtain relief on appeal. This article demonstrates, using the limited data available, that for direct appeals, the wrongful incarceration savings are generally quite substantial compared with the administrative costs of providing those appeals. Indeed, it is quite possible that some states realize net cost savings by providing direct appeals. The article then identifies specific restrictions on defendants’ rights, such as restrictions on relief from plain errors in sentencing that impose net costs on states. This article argues the existence of such restrictions that harm defendants at net financial cost to states is partly the result of an agency problem in criminal appellate decision making.

Second, although limiting defendants’ opportunities to seek relief from errors after conviction may increase incentives on defense counsel to prevent errors at trial, these increased incentives are unlikely to affect the actual behavior of counsel. With respect to strategic behavior or “sandbagging,” this article argues that because harmless error rules prohibit relief from errors that did not, in retrospect, affect the outcome of a trial, defense counsel will rarely have incentives ex ante to intentionally sandbag errors. In addition, because most inadvertent mistakes are caused by resource constraints on public defenders, rather than inattentiveness, increased restrictions on post-conviction rights are unlikely to reduce inadvertent mistakes. Moreover, to the extent that restricting review might actually compel defense counsel to take additional care at trial, because this care must be paid for by the state, it could actually be inefficient.

Finally, this article argues that the traditional finality deterrence argument, which depends heavily on the assumption that prisons effectively rehabilitate offenders, has been severely undermined by social science literature. Liberalizing post-conviction review, however, could increase incentives on people to obey the law by reducing wrongful convictions and the punishment given to defendants wrongfully convicted. Although the effects of reduced wrongful conviction are unlikely to affect the incentives of most people, for whom the risk of wrongful conviction is already negligible, they may be significant for at risk populations for whom the risk of profiling and wrongful suspicions are more salient. In addition, studies have demonstrated that the willingness of people to obey the law is influenced heavily on how “fair” or “legitimate” the legal system is perceived to be. Because many restrictions on post-conviction relief may be perceived as procedurally “unfair” by defendants, lifting these restrictions may actually encourage criminals and their associates to comply with the law.