Criminal Justice

How Wrongful Convictions Happen

Just how flawed is our criminal justice system?


Read this article at

NEXT: What's All This I Hear About Freedom of Speech?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Nick Manning responds. It is very flawed. You’re welcome.

  2. Great artice Radley.

  3. When I took a criminology class in 2001, the professor concluded his unit on the court system by asking how many of us believed that we would be found not guilty if we were falsely accused of a crime. Hardly anyone in a class of fifty raised his or her hand. The professor was shocked that so few of us had faith in the justice system. He blamed the OJ trial, but for me it was just the kind of issues addressed in this article. If a prosecutor wants you, you’re probably screwed.

  4. First of all, good article, as well as helping the cause of justice.
    But as Reason has written of before, as in the case of the “forensic” expert in ?Alabama? who obviously was biased and incompetent, our legal system is incurious at best, and probably inexcusibly self rightous. Maybe the axiom should be revised to state how it actually operates, “it is better than 10 innocent men be convicted, that one guilty man go free” as that is beginning to appear more accurate.

  5. Great (if depressing) article, as always, Radley.

    You mentioned that the 200 may represent 1-2% of the cases where DNA evidence is available. Are there, in fact, any useful estimates of how many cases in the US are candidates for DNA reexamination.

  6. daniel k,

    That was Mississippi. Alabama has enough problems of its own. Don’t make us responsible for Mississippi, too.

  7. Jurors are about as bright as voters.

    Prosecution is a job with whose goal in reality is to put people in jail.

    Federal prosecution makes decisions based on political priorities.

    As long as these three things continue to exist we will be in serious trouble.

  8. I have an unpopular opinion as to why so many innocent people get convicted. Jurors, being made up of randomly selected members of the general public, are just not smart enough for the task. Think of all the people you interact with. Not just friends, family and coworkers, you have to include all of the people you deal with in the course of the day.

    Now consider that a random twelve, (including the panhandler in front of the liquor store in the mix) have the humbling resposibility to declare your fate. Scary, isn’t it? Throw in the fact that intelligent, skeptical people will be preempted from serving by either the prosecutor or defense counsel. The most successful among them are the most likely to be excused by the judge as well.

    It’s no surprise to me that juries screw up all the time. F. Lee Bailey once wrote that if he were innocent he’d rather face a court martial (educated professional people acting as jury) than civilian a court (those twelve people I discussed earlier). If he were guilty he would prefer the opposite.

    I’m a heretic, but I believe that trial by “a jury of one’s peers” is a recipe for unjust verdicts. The concept of professional jurors obviously has problems with it, but would it be worse, less just, than what we have today?

    I don’t think so.

  9. Professional jurors. That’s an interesting idea I’d never considered.

  10. I would apply for that job.

  11. Ooh… And then we could have professional investigators that one could hire to help your case.

    Wait, I think we have that already. And they abuse their power just to make a living.

    Obviously it’s a little different, but I would like to know how we would stop people from hiring professional jurors to plead their case.

    Basically, I’m saying that paying people doesn’t work because it can be abused. Electing people doesn’t work because the uninformed (i.e. stupid) majority can make bad decisions.

    As unfortunate as it sounds, random selection seems like the closest thing we have (currently) to a perfect system.

    Overall, we need good people in office, as prosecutors and defenders, and in the jury. The question remains how to make that happen.

  12. I realize, now, that I tend to abuse white space.

  13. Professional Jurors? Yeah! Sign me up. Now, Mr Attorney, how much will you pay for the “correct” verdict?

  14. The problem with juries isn’t intellectual. It’s psychological.

    Even an ad hoc group of otherwise reasonable individuals is unconsciously committed to destroying people outside it; that’s what binds them. The prosecutor offers them a victim, and unless, as in the OJ case, another more satisfying victim is offered by the defense, they take him.

    Jurors aren’t dumb enough, and prosecutors aren’t smart enough, to explain the courts’ conviction rates. But crowds are murderous enough.

  15. The appropriate point that is being missed is the “…of your peers.” part.

    My peers occur much less frequently than John Q Public’s.

    Could you, by that criteria, call for a mistrial since the definition of peer was inappropriately applied?

    Frankly, I’d be insulted by the jury that got chosen and then tagged as being my peers.

  16. Troubleshooter,

    I tend to agree, though my own personal experience with judicial/disciplinary decisions that were made by “actual” peers of the accused tend to err so far on the side of exoneration, you might as well not bother trying in the first place. Not that that wouldn’t be preferable to innocents being punished, but still.

    Professional juries would be an interesting idea, but it seems like it would serve has just another vector of potential corruption in the end. I think a better solution would simply be to allow nullification defenses to be explicit and let juries tangle with whether they like the law at all before applying it to their proffered victim.

  17. Brandon Garrett’s article examined 200 cases where post-conviction, the defendants were exonerated. In “Convicted by Juries, Exonerated by Science…” The Department of Justice examined 28 cases prior to trial, accused men whose DNA was tested by the FBI crime lab from 1987 to 1992. This sample tests the integrity of crime investigation and prosecutorial processes that bring an accusation of a serious crime. The paper found that 25% of the suspects were in fact innocent. That’s a reasonable approximation of the innocence rate for felony trials as a whole. Since conviction or plea bargains are gained in over 90% of trials, that gives a reasonable expectation that 20% of the people who either plea to or are convicted of a crime in fact didn’t do the crime. ( is the link)

  18. The appropriate point that is being missed is the “…of your peers.” part.

    The reference to peers is originally a reference to people in the same class as you, to give the peasants some protection against abuse by the aristocracy.

  19. One huge problem with juries is stigma. 12 voters are selected. Voters are the ones who ultimately have chosen our laws through representation. So we have voters who support the drug war among other things. A defendent’s rights to do as they please without hurting anyone has been stripped by the very people he is counting on to exonerate him. So the stigma of any offense where drugs are involved is already tainting the trial before it starts.

  20. Just wanted to note that the January 31 and February 7 brickbats are the same story.

  21. I sat on a jury on and the selection process ways scary.Both sides tried to excuse anyone with a professional degree or high level of education.I was the last person left and they were not happy I was self-employed.I guess free thinkers are not high on the list for a jury.

  22. Jurors should be randomly selected, but with a some changes to our justice system:

    1. Pay them decent wages, so that competent people don’t try so hard to squirm out of jury duty.

    2. Limit jury selection powers, so that competent people aren’t weeded out.

    3. Ban plea bargaining. If there’s anything in our criminal justice system that has been thoroughly abused, it’s that.

    4. Allow jurors to be ‘prejudiced’ about the case. IE, don’t lock up murder trial jurors for two years so that they can’t hear anything about the case. No sane, intelligent person wants to sign up for that, and it’s incredible that there are any decent jurors at all.

    5. Forbid judges from instructing juries about what they can and cannot consider, or what their powers of sentencing are. Judges in jury trials should be there just to ref, and should be ‘fireable’ by the jury if they usurp the jury’s perogatives.

  23. A few obvious remedies that haven’t been mentioned in this thread yet:

    – Eyewitness testimony is a serious problem. It’s reliability is *much* lower than is commonly believed. If its use is not restricted, juries should be at least instructed by judges about its serious limitations.

    – All police interrogations must be videotaped or are inadmissible.

    – Video and audio taping by suspects and bystanders of interrogations and other police actions must be allowed.

    – All biological evidence must be made available for independent analysis.

    – Jail-house snitch testimony not allowed (police can use *information* provided by snitches if it can be corroborated, but can’t use their testimony).

    – All biological evidence must be preserved indefinitely.

  24. Vin Suprynowicz, a libertarian writer who writes editorials for this did a good chapter on jury trials in his book, “Send in the Waco Killers”, where he discussed Voi Dire (juror screening questions) and juror nullification. When I found myself on a jury, for a questionable trial, I found many of his observations to be on point, and ironically my biggest issue with the case was linked to a strange question in Voi Dire.

  25. “Vin Suprynowicz, a libertarian writer who writes editorials for this”

    this= Las Vegas Review Journal

    I can’t write todya.

  26. I was on a jury recently. Great time, I was only 24, but they made me the foreman. I was amazed at how much sway I had in that small group, at the beginning of an hour I had them mostly convinced that he was guilty, and by the end that we had reasonable doubt and he was not. I think with more time I could have convinced them that the prosecutor did it.

    Now, imagine that it was you facing a jury, and there is a charismatic smartass present, your fate rests in one persons hands. Makes me nervous.

    If I ever face a jury I want to say “I have no peers here!” Nothing to get you convicted like rampant narcissism.

  27. I was the alternate juror in a criminal case a few years back. (I have no idea how that was allowed.)
    While the real jurors were deliberating, I went into the judge’s chamber and shot the breeze with him, the prosecutor and the defense lawyer.
    They asked me how I would have voted.
    I told the prosecutor, “No way you made your case with that flimsy evidence.” (A suspect transcription of a very weak audio recording of a phone call from the guy, already serving time, allegedly asking his mom to bring drugs to him in prison.)
    “But they’ll find him guilty.”
    And of course they did. I also suppose I don’t have to worry about serving on a jury again in my county.

  28. 3. Ban plea bargaining. If there’s anything in our criminal justice system that has been thoroughly abused, it’s that.

    Plea bargaining is very important to the function of the justice system. Without guilty pleas, the courts would grind to a halt. The better answer is to block overcharging and have a set reduction (say, sentence reduced by 20%) for a guilty plea. You need enough of an incentive to get the guilty to plead without the innocent taking the safer way.

  29. Slocum:

    good ideas

    I’ve tried to think about what would happen if one public legal office was responsible for both defense and prosecution (i.e., no public defenders, which are typically funded at much lower rates than the prosecutors), and how it might be possible to arrange and reward honest, accurate prosecution of the correct individuals.

    Michael Pack:

    good point. the jury isn’t random, the juror pool is, or is probably nearly so. As an aside, since potential jurors come from voter registrations, and knowing that voter turnout is low, what are voter registration rates like compared to the pool of potentially eligible voters?

    Anyway, the juror pool may be random enough to represent the population at large, but voir dire is typically used to bias the jury composition in ways the lawyers think will benefit their side.

  30. Might I suggest if you have a question about the jury system to view an old CBS Reports: Inside the Jury Room video? I use it in criminal justice classes I teach. One thing to consider is the amount of actual crime and criminals there are and the workload of the prosecutors and especially the public defenders/court appointed attorneys to clear cases as expeditiously as possible. The system is good, but it is also flawed. It is flawed in a way that makes it easy to allow sloppy work that is presented as fact. In 30 years I have never seen true corruption, but I have seen incompetence at a level that would make it difficult for an innocent person to be given a fair trial.

  31. A bench trial is probably a better bet than rolling the dice with a jury, especially if you’re actually innocent. There are also certain advantages to a the inquisitorial method used in civil law countries, but incorporating those would presumably require a massive restructuring of the system.

  32. I have just read “The innocent man” by John Grisham. The true story of Ron Williamson, a mentally ill man from Oklahoma who spent 13 years on death row before being exonerated. He died 5 years later in 2004. If all the details are true, the American system is fatally flawed. The police and prosecutors in this particular case should be jailed.

  33. Today a Mississippi court freed Kennedy Brewer, who was convicted in 1995 and put on death row for the rape and murder of a three-year-old girl. DNA evidence exonerated him. The Innocence Project fought to have him released, and the hearing is detailed in this article the Jackson (MS) Clarion-Ledger. Controversial medical examiner Stephen Hayne and “bite mark expert” Michael West (both previously profiled in Reason by Radley Balko)testified for the State in the guilt phase of the trial. This case has all the elements set out in the article, including the role of the appellate courts and the barriers to getting the DNA evidence properly examined.

  34. Someone may have an explanation of why this is a bad idea, but I’d like to limit the questions lawyers can ask jurors. They should be able to ask whether potential jurors are personal friends or relatives of people involved in the case, whether they have a financial interst in the outcome, and whether they’re convinced before hearing the evidence that the defendant must be guilty, or he wouldn’t be on trial, or that he must be the innocent victim of a racist police force, or he wouldn’t be on trial.

    They should not normally be able to question the jurors in detail about their political views, religious affiliations, the bumper stickers on their cars, etc., or exclude them for having educations, or being in professions that are likely to be “too analytical.”

Please to post comments

Comments are closed.