The year 2009 will mark two decades since the first DNA exoneration. Over that time we have seen hundreds of people exonerated of crimes they did not commit. As these innocent men and women have walked out of prison, some of them even having been released from death row, a new wave of research has arisen into the sources of wrongful convictions.
At first the expression "wrongful convictions" may seem like a loaded term. Court observers have known for years that judges and juries occasionally make mistakes that are reversed on appeal. But most of those cases involve issues of "legal innocence," in which a defendant's conviction is overturned regardless of his involvement in the alleged crime because the state violated the defendant's fundamental rights. What makes the new findings so startling is that they largely concern cases of "factual innocence," meaning that someone other than the convicted defendant committed the crime.
Although we cannot yet explain why errors lead to conviction in some cases and not others, virtually all of the studies of wrongful convictions have identified similar bases for these grievous mistakes:
* Errors in eyewitness identification
* High-pressure interrogations, particularly of suspects with mental deficiencies
* Antiquated forensic testing
* Inadequate, if not ineffective, assistance of defense counsel
* Tunnel vision by law enforcement officers or prosecutors, including inadvertent error and misconduct
* Failures to disclose exculpatory evidence
* Testimony by questionable informants
* The lack of adequate post-conviction remedies to address wrongful convictions
It is difficult to confront the frailties of the criminal justice process that can send innocent people to prison or allow the guilty to roam free without feeling compelled to prevent future errors from occurring. Whether we identify with the innocent suspect who is convicted and left to serve time for a crime he did not commit; the helpless victim who is attacked by a criminal who should have been locked up; the police officer or prosecutor who errantly is convinced of a case he later comes to doubt; or the taxpayer who must pay for the costs of convicting the innocent, it is both good public policy and common human decency to wish to eliminate wrongful convictions.
Nonetheless, much of the literature on wrongful convictions still researches the nature of these errors rather than vigorously addressing their reform. It is as if we are stuck in Richard Leo's "familiar plot" of wrongful convictions, (1) convinced that if we keep telling the story of innocent men who have been erroneously convicted, the recommendations we offer will be enacted by policymakers who recognize the wisdom of our prescriptions. Not that I am immune from this criticism. As chair of the Innocence Commission for Virginia and author of a book on wrongful convictions, I, too, have spent considerable time documenting the causes of wrongful convictions. Our efforts have not been wasted, but the plethora of reports that describe similar findings should be a sign that what we have uncovered goes beyond a single jurisdiction or state. There are systemic frailties in the American criminal justice process, weaknesses that warrant a coordinated and strategic reform effort.
What To Do?
Research on wrongful convictions goes back at least as far as 1932, when Yale law professor Edwin Borchard first probed systemic errors in the criminal justice system. Since that time, many of the recommendations for wrongful convictions have coalesced around similar measures. Borchard, for example, urged courts to refuse to introduce a defendant's confession at trial unless it was given before a magistrate and in the presence of witnesses. He also called for independent investigative bodies to review wrongful convictions. (2) Seventy years later, Barry Scheck and Peter Neufeld, the godfathers of innocence projects, outlined several proposals for reform in their book with Jim Dwyer. …