One Hundred Years Later: Wrongful Convictions after a Century of Research
Gould, Jon B., Leo, Richard A., Journal of Criminal Law and Criminology
Almost a century ago in the predecessor to this Journal, (1) Yale law professor Edwin Borchard kicked off the study of wrongful convictions in the modern era (2) when he published an article on European approaches to "unjust convictions." (3) Almost a century later, professors Samuel Gross and Barbara O'Brien published a critical assessment of the state of knowledge on wrongful conviction. Arguing that researchers "do not know much about false convictions" and that "it will be difficult to learn more," they concluded that the "main message is gloomy." (4)
Although both of us greatly respect the work of Gross and O'Brien--indeed, Gross is a leading, perhaps even the leading, scholar in the field at the moment--we disagree with their conclusion about the state of knowledge. To be sure, questions remain about the representative characteristics of all (i.e., known and unknown) wrongful convictions and their prevalence, queries that may prove difficult ever to answer. Nor do we yet have a good grasp on how the sources of wrongful convictions differ from the frailties found in criminal cases as a whole. But to say we know little about the subject, we believe, is not fully to appreciate the import of decades of research on wrongful convictions, and especially some of the most insightful work that has been conducted in the last two decades.
In this Article, we analyze nearly a century's worth of research into wrongful convictions, explaining the many lessons of this body of work and suggesting where additional research and attention are needed. The Article is divided into four sections. In Part II, we chronicle the range of research that has been conducted over the last several decades and explain how it has changed in form. Part III is the bulk of the Article and where we address the challenge provided by Gross and O'Brien. We begin this section by acknowledging questions about the rate of wrongful convictions and argue that, whatever the correct figure, wrongful convictions are far from rare in the criminal justice system. We then turn to the effects of wrongful convictions, describing the several harms of erroneous prosecutions and convictions that researchers have identified. From there, we address the sources of these errors and seek to categorize the various findings about these factors. Our overall argument in this section is two-fold: first, we should consider these factors as contributing sources, not exclusive causes, of wrongful convictions; and second, the research has actually uncovered a great deal about how these sources operate and what remedies might prevent their effect.
Although the research has identified a common set of sources, we agree with Gross and O'Brien that the methodology for studying wrongful convictions could be improved. In Part IV we discuss those studies that have used matched comparison samples and explain how the field could be improved by additional research that employs such comparisons or controls. Finally, in Part IV, we turn the tables, contending that improvement is needed less in the quality of research than within the professional, policy, and political communities that might employ the lessons learned from the wrongful convictions research. With all of the information that has been amassed over the last century of inquiry, it is embarrassing to the point of shameful that criminal justicians, policymakers, and politicians do not follow the example of other professions and seek to learn from and prevent systemic error. (5) We have no doubt that researchers will continue to expand our understanding of wrongful convictions in the years ahead. But unless those charged with maintaining our criminal justice system are open to those findings and are willing to act on the lessons learned, the research may become, quite literally, an academic exercise.
II. A SHORT HISTORY OF RESEARCH ON WRONGFUL CONVICTIONS
In 1913, Edwin Borchard's article opened the eyes of American observers to the scourge of wrongful convictions by describing European approaches to righting the wrongs of erroneous convictions. …