Reforms that have been implemented or suggested in recent years in the death penalty context reveal systemic flaws in the criminal justice system.
This issue of Judicature presents a series of articles on the death penalty from a variety of perspectives that are not always heard on this vexing issue. We publish these pieces to enrich the discussion of a subject that has dominated criminal justice dialogue for many years. Yet, in the course of reviewing these articles, we were struck by a point made by Professors Carol and Jordan Steiker concerning the impact that death penalty litigation has had on the larger criminal justice system. Since death penalty litigation and political debate about capital punishment have focused on claims of innocence and constitutional error, it is not surprising that the reforms that have been implemented or suggested in recent years in the death penalty context have revealed systemic flaws in the criminal justice system.
In the capital arena, the most significant development has been the DNA revolution. In the past 15 years, over 170 persons, including a significant number who had spent time on death row, have been exonerated by post-conviction DNA testing. DNA evidence is available in a limited number of cases (homicides, rape, and some assaults), but there is no reason to think that the errors that have been uncovered in DNA exoneration cases do not infect a very large number of non-DNA cases.
Recently, in Virginia, a random review of cases in which DNA evidence was available post-conviction (but not yet tested) yielded an error rate of 6 percent. Extrapolation over the criminal justice system in this state alone would result in a finding of thousands of wrongful convictions. Moreover, in the 1990s, when the FBI began testing DNA evidence in ongoing criminal investigations, the forensic tests cleared "prime suspects" in over 20 percent of the cases.
Exoneration cases thus tell us far more than the compelling personal stories of individuals wrongly convicted and imprisoned. In every one of them, something went seriously wrong to permit the conviction of an innocent person. There have been reviews of these cases to determine what caused these disturbing results, and this work provides us with a window into a number of systemic flaws in our criminal justice system:
* In 80 percent of the cases there were mistaken eyewitness identifications;
* in 20 percent of the cases there were false or coerced confessions;
* in 50 percent of the cases the police or prosecuting attorney failed to disclose exculpatory evidence;
* in 40 percent of the cases defense counsel were ineffective;
* in 20 percent of the cases jailhouse informants provided false information;
* in a number of cases the forensic evidence was presented in a false or misleading manner.
Fortunately, each of these problems is susceptible to reforms that can protect the innocent without undue costs to effective and fair law enforcement practices. We sketch here one possible set of reforms, based on steps already taken in some jurisdictions, reports of blue ribbon commissions, and court decisions. Some of these matters are within the initial agenda of AJS' new Commission on Forensic Science and Public Policy.
1. Eyewitness identifications. For many years, studies have shown eyewitness misidentifications to be the single largest cause of wrongful convictions. A number of controlled studies have shown that errors are significantly reduced upon the institution of a number of related procedures: (a) witnesses are told that the perpetrator may not be in the lineup or photo-spread, (b) the detective conducting the identification procedure does not know the identity of the primary suspect, (c) photographs or persons are shown sequentially to the witness to avoid the normal instinct to select the person who looks most like the perpetrator, and (d) a statement of the confidence level of the witness is recorded at the time of the identification. …