"Than That One Innocent Suffer": Evaluating State Safeguards against Wrongful Convictions

Article excerpt

ABSTRACT

This article collects and describes the legislative and other binding policy directives in effect in each of the fifty states that function as safeguards in the following areas against the arrest, prosecution, and conviction of innocent persons: (1) eyewitness identification; (2) forensics; (3) interrogation and confessions; (4) informant testimony; and (5) forming an Innocence Commission. It then assesses the individual states' measures of commitment to Blackstone's expressed intolerance for allowing the innocent to suffer, evaluating their respective efforts against a checklist of prescribed reforms.

I. INTRODUCTION

In the mid-eighteenth century, William Blackstone famously stated that "it is better that ten guilty persons escape than that one innocent suffer." (1) Today, approximately two hundred and fifty years later, Blackstone's 10-to-1 ratio is often revisited, as represented by this special volume. (2) The United States and other nations are currently experiencing an Age of Innocence. The number of identified, innocent persons who were wrongfully convicted of crimes continues to increase. At the time of this writing, the Innocence Project has identified two hundred and seventy-two men and women who have been exonerated in this country since 1989 by post-conviction DNA evidence. (3) The Innocence Project only takes on cases in which DNA evidence is available for testing, estimated to represent just ten percent of criminal convictions. (4) In addition, more than ninety percent of the exonerations reported by the Innocence Project involve defendants who chose to stand trial. (5) In contrast, more than ninety percent of convictions nationally are the result of guilty pleas. (6) It is notoriously difficult to "right" a "wrong" guilty plea. (7) For these reasons and many others, scholars studying wrongful convictions posit that the number of identified innocents is the mere tip of the iceberg. (8) Although the precise size of the iceberg is contentiously debated, (9) there are compelling reasons to believe it is large enough to sink the Titanic.

Blackstone's stated ratio, and the balancing of interests it envisions, remains as compelling today as when it was first articulated. It is easy to give lip service to the principle that innocent persons should not be punished for crimes they did not commit, even at the cost of guilty parties occasionally going free--whether the precise trade-off is one to ten, one to a hundred, or simply one too "many" (10)--in light of the mounting evidence regarding the incidence of wrongful convictions. There should be no less hesitation in converting the stated principle into policy, embodied by meaningful criminal justice reforms designed to protect the innocent against wrongful conviction. Yet, in practice, the states have largely shirked responsibility in enacting safeguards against wrongful convictions that have long been identified and are readily available. Ironically, the Blackstone ratio is, for the most part irrelevant, to the states' general lassitude in enacting meaningful reforms because, with scant exception, the proposed reforms would entail no trade-offs whatsoever; they would simultaneously guard against the innocent being convicted and help ensure that the guilty do not go free.

Our purpose here is a simple one, but to our knowledge, one that heretofore has not been accomplished. We comprehensively describe and analyze current state policy initiatives in several areas relevant to the prevention of wrongful convictions. In doing so, we note how many and which states have enacted reform measures, when those polices were adopted, and describe the content of those reforms. In the appendix, we report the performance of the individual states on a checklist of enacted reforms.

We focus on five areas of importance to wrongful convictions. Four areas concern the prevention of investigation and trial errors: eyewitness misidentifications; forensic science oversight; police interrogations and false confessions; and the use of criminal informants. …