How the Innocent Get Convicted


University of Virginia law professor Brandon Garrett has a new book out called Convicting the Innocent: Where Criminal Prosecutions Go WrongOver at Slate, he looks at two causes of wrongful convictions, false confessions and bad eyewitness testimony and makes some pretty simple suggestions for reform.

On false confessions:

The only way to accurately document who says what during an interrogation session is to record the whole thing. Such a record would also increase the reliability of confessions as evidence. More than 750 law enforcement jurisdictions across the United States are voluntarily recording entire interrogations. You might imagine that police investigators would resent such documentation of interrogations, yet studies have shown that once recording becomes standard practice, police officers and prosecutors become strong supporters of the reform.

And on eyewitness testimony:

Eyewitnesses should always be told the attacker might not be present in the lineup. Their initial confidence level should be documented (because, like in Ronald Cotton's case, by the time of trial it may change). The most crucial proposed reform is double-blind administration. The officer administering a photo or live lineup should not be aware who the suspect is, and the witness should be told the officer does not know. Such changes simply require updating the identification procedures and better documenting the results.

These are pretty simple changes that cost very little to implement. Yet you'd be surprised how much resistance they can get. Back in 2006, for example, a panel of former judges, prosecutors, cops, and defense attorneys in California came up with some basic suggestions to better prevent wrongful convictions. Their three main suggestions were these two, plus a sensible-sounding proposal that would require prosecutors to independently corroborate jailhouse snitch testimony before using it in court. Both state houses passed bills implementing the reforms. But after some late push-back from police and prosecutors, Gov. Arnold Schwarzenegger vetoed all three.

Garrett was also the author of a fascinating study a few years ago in which he looked at how appeals courts handled cases were the defendant was later proven innocent by DNA. Here's what I wrote about his findings at the time:

Garrett found that of the 200 people convicted for crimes for which they were later exonerated, just eighteen were granted reversals by the appellate courts.

Of the rest, 67 had their appeals denied with no written ruling at all. In 63 cases, the appellate court's opinion referred to the defendant's guilt. In 12 other cases, it referred to the "overwhelming" evidence of guilt.

In the remaining cases, the appeals courts either found the defendant's appeal without merit, or found some merit in his claims, but found that the trial court's errors were "harmless," or unlikely to have affected the jury's verdict.

Keep in mind, these are all cases in which the defendant was later determined to be actually innocent of the crime for which he was convicted. More alarmingly, Garret found in his research of these 200 cases that "even after DNA testing became available, courts and law enforcement also posed obstacles to conducting DNA testing, and then denied relief even after DNA proved innocence."

Many were convicted despite DNA testing pointing to their innocence, and 41 had to rely on the mercy of a governor's pardon power because, despite their proven innocence, they had already exhausted their appeals and post-conviction options, and could make no further claims in court.

Coming to your mailbox in June: a criminal justice-themed issue of Reason.