Academic journal article Albany Law Review

Elephants in the Station House: Serial Crimes, Wrongful Convictions, and Expanding Wrongful Conviction Analysis to Include Police Investigation

Academic journal article Albany Law Review

Elephants in the Station House: Serial Crimes, Wrongful Convictions, and Expanding Wrongful Conviction Analysis to Include Police Investigation

Article excerpt

ABSTRACT

In this article we advocate that the study of miscarriages of justice be expanded to view the entirety of police crime investigation as a source of wrongful convictions. We set this proposal in a framework of how the inductive innocence paradigm was developed and analyze how the term "causation" is used in legal, scientific and case analysis. We then explore a subject not yet addressed by wrongful conviction scholarship but that may confront an investigator: whether an unsolved crime is the work of a serial criminal and whether a suspect is the serial criminal. We examine a convenience sample of forty-four exonerees convicted of crimes committed by thirty serial criminals. The analysis is aimed at opening up a discussion of the kind of complexity that investigators face in hard-to-solve cases.

I. INTRODUCTION

Wrongful conviction research, according to Bonventre, Norris, and West, includes identifying exoneration cases, "establishing rates" of wrongful convictions, "examining known cases to establish the correlates of their causation and detection," and studying "established factors, such as confessions, to better understand their relationship with wrongful convictions and to improve practices." (2) The array of research methods used to study the correlates and causes of wrongful conviction have included descriptive case studies, content analysis, aggregate data descriptive statistics, comparison/control studies, and experimental studies. (3) The present article explores the correlates and causes of wrongful convictions, but approaches the issue by advocating that the correlates include the entirety of police investigation. Related to that goal, we discuss how causation is and should be addressed in innocence advocacy and scholarship.

The study of causation, although a subject of philosophy, legal theory, and scientific inquiry, is driven by practical desires to understand and control causal mechanisms. (4) Understanding causal mechanisms in applied technology leads to improved manufacturing efficiency and better products. (5) Cause and effect has been a mantra of medicine at least since scientific principles were applied in the nineteenth century to curing infectious diseases, but has probably driven the work of healers and herbalists well before that. (6) Even in criminal law, where causation is a prerequisite to ascertaining whether an event constitutes a crime, the goal is to control either the offender (through special deterrence, incapacitation, or rehabilitation), society (via general deterrence and the prevention of private vengeance), or the state (by requiring police and prosecutors to bring suspects to courts of law and prove their cases by presenting evidence rather than by exercising raw state power). (7)

Wrongful conviction studies have been driven from the time of Edwin Borchard's survey of sixty-five actual innocence cases to the most recent scholarship by a desire to know what has caused prosecutions to go awry. (8) The goal from the beginning has been to improve verdict accuracy by correcting specific criminal justice and legal process errors. As the innocence movement rapidly matured after the 1990s, a set of standard or canonical causes (9) or sources of wrongful convictions has been thought to explain false convictions. (10) The theme of the present issue, "Elephants in the Courtroom" is premised on the idea that some issues which figure importantly as wrongful conviction causes have not received commensurate attention in policy or research arenas.

We explore this theme by examining the "elephant in the station house," so to speak: the failure of innocence movement advocates, activists, and scholars to view the entirety of police investigation as a potential source of wrongful convictions, as opposed to exploring arguably more discreet police processes (e.g., eyewitness identification, interrogation, handling informants). (11) We advocate that innocence scholarship amplify its perspective by including police investigation, generally, as a source of miscarriages of justice. …

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