Edited by one of the nation's leading legal scholars and two of her top students, this collection of essays examines critical issues, including
• what American justice in the age of innocence looks like;
• how to implement procedural mechanisms to ensure the integrity of the judicial system while safeguarding the public;
• whether or not the legal system is doing a good enough job uncovering wrongful convictions.
This anthology provides insightful lessons based on cutting-edge research and legal analysis. Wrongful convictions are not a foregone conclusion, but the justice system must break free from a pattern of punishing innocent people and go after the true culprits. Written for judges, lawyers and scholars alike, American Justice in the Age of Innocence educates the public and helps current prisoners who are innocent contest their wrongful convictions.
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American Justice in the Age of InnocenceUnderstanding the Causes of Wrongful Convictions And How to Prevent Them
iUniverse, Inc.Copyright © 2011 Sandra Guerra Thompson, Jennifer L. Hopgood, and Hillary K. Valderrama
All right reserved.
III. Causes of Wrongful Convictions: Unreliable Evidence....................9
A. Eyewitness Identification....................9
B. Custodial Interrogation and Confessions....................77
C. Jailhouse Informants....................193
IV. Improving the Adversary System through Discovery....................235
VI. Creating Avenues to Uncover Actual Innocence....................269
A. Access to DNA Testing: A Texas Case Study....................269
B. The Case for Innocence Commissions....................353
The American criminal justice system is a delicate and intricate system that balances the needs of communities across the nation with the rights of criminal suspects. Understandably, for many years the system's focus has been on guilt: what standard of proof must be met to prove guilt, what may or may not be used to prove guilt, or whether guilt of other crimes may be used to prove guilt in the instant case. But, due in large part to the exoneration of over two hundred wrongfully convicted individuals across the United States, the focus is increasingly shifting to innocence. In the face of the disturbing realization that the system has failed so many, there is a renewed interest in making sure that the innocent are protected from wrongful conviction and recognition that existing safeguards are insufficient to meet this goal.
With this renewed interest in innocence growing in courtrooms and legislatures across the nation, difficult questions emerge. What does American justice in the age of innocence look like? What procedural mechanisms can be adopted to ensure the integrity of the system while preserving its effectiveness in protecting the community it serves? What factors lead to wrongful convictions, and how can they be avoided? What procedures could be adopted to provide effective relief to those who have been wrongfully convicted? Though there are no easy answers to these questions, the authors in this collection provide insightful articles collecting research and making suggestions for improvement to the criminal justice system. This anthology provides information about what factors cause wrongful convictions, how the adversary system can be improved through increased discovery, and why creating avenues to uncover actual innocence is a vital part of this new focus. It is dedicated to providing policymakers with the information needed to make informed decisions about what American justice in the age of innocence should look like.
Though there are multiple causes of wrongful convictions, several culprits stand out. Eyewitness identifications, custodial interrogations and confessions, jailhouse informants, and the use of questionable forensic science have all been linked to wrongful convictions. Erroneous eyewitness identifications are linked to approximately three-quarters of all DNA exonerations. Authors Brian Harrison and Christina M. Griffin describe the dangers of current identification techniques and suggest changes to minimize those dangers in the future. Harrison suggests such changes as increasing the use of reliable identification procedures (such as double-blind and sequential line-ups), requiring authorities to obtain a confidence statement from the eyewitness at the time of the identification, and ensuring that all non-suspects in any line-up bear some resemblance to the eyewitness's previous description of the culprit (rather than resembling the suspect). As a final measure, he recommends that any identification that does not follow these guidelines should be excluded from court. Griffin further addresses the "best practices" recommended for reducing erroneous identifications. She addresses the implementation of these changes at the state level by comparing the different legislative approaches and policy standards used by states. She analyzes the different approaches and suggests what would work best in Texas, thus tailoring a path for reform in Texas, as well as other states considering procedural reforms.
Next, Tanya Broholm and Hillary Valderrama discuss custodial interrogations and confessions. Custodial interrogations are intended to produce a true and accurate account of events from suspects, but there is ample evidence that many of the interrogation procedures currently employed create a danger of false confessions. Once considered a rare occurrence, the work of innocence projects around the country has conclusively demonstrated that false confessions happen with some frequency and are also linked to wrongful convictions. More problematic still is the fact that jurors accord confession evidence disproportionate weight in delivering their verdicts. Broholm describes several cases involving false confessions and concludes that videotaping interrogations in their entirety is necessary to safeguard the rights of the accused and the integrity of the criminal justice system. It also gives the judiciary more reliable evidence to evaluate motions to suppress confessions. Valderrama details various risk factors linked to false confessions. She proposes the elimination of several popular interrogation practices (such as minimization, maximization, and the use of falsified evidence), videotaping interrogations in their entirety, and creating procedural mechanisms to ensure that only reliable confessions are presented to jurors.
The use of jailhouse informants or "snitches" presents yet another opportunity for reform. As Matthew Gilliam discusses, due to the fact that such informants are frequently offered substantial reductions in their sentences in return for their testimony, they have strong incentives to fabricate confessions. As a result, jailhouse informants are among the leading causes of wrongful convictions in the United States. Gilliam advances Illinois' legislation regarding the use of jailhouse informants as a model for other states. He also concludes that rigorous compliance with the letter and spirit of the mandates of Brady v. Maryland requires that prosecutors diligently provide defendants with exculpatory evidence regarding jailhouse informants. Such information could include the informant's criminal history, any other statements made by the informant, and whether the informant has ever testified for the prosecution before in another criminal trial. Establishing clear boundaries for the use of jailhouse informants and giving defense counsel impeachment evidence regarding the informant ensures that only sufficiently reliable testimony is presented to the jury and that the jury has adequate information to evaluate the credibility of that testimony.
After addressing the causes of wrongful convictions, this anthology shifts its focus to methods for improving the adversary system through discovery. Adequate information regarding the opposing party's case is essential in any litigation, and criminal cases are no exception. Recently, there has been a growing movement to statutorily require prosecutors to maintain "open file" policies under which they provide the contents of their files to the defense counsel. However, less attention has been paid to defense disclosure and under what circumstances defense attorneys should be required to open their file to the prosecution. Ryan King discusses the merits of reciprocal discovery and provides recommendations for the implementation of such a system. Specifically, King addresses the Texas Senate Bill 560 proposed in 2005, which would have created disclosure obligations for both the prosecution and defense attorneys that far surpass current requirements. But it did not pass. He argues that this law deserves further consideration. By requiring disclosure of these types of information for both the defense and prosecution, courts will be able to better fulfill their role in "seeking the truth" and discourage "trial by surprise" for either side.
The final section of this anthology is dedicated to providing relief to those the system has failed by creating avenues to discover actual innocence. In the absence of a state's affirmative commitment to seek out wrongful convictions, wrongfully convicted individuals may never be identified or successful in seeking relief. Jennifer Hopgood discusses the difficulties inherent in seeking relief for wrongful convictions, even where DNA evidence is available to a defendant. Despite the availability of a state statute ostensibly providing for access to DNA evidence, Hopgood finds that individuals pursuing claims of wrongful convictions in Texas experience great difficulty in obtaining access to the DNA evidence that could exonerate them. Her research suggests that even a mechanism providing access to DNA evidence may only nominally increase an individual's ability to obtain relief for a wrongful conviction. Additional measures are needed, and statutes providing for such access are not adequate substitutes for concerted, systematic efforts to identify and resolve claims of actual innocence.
Finally, Yesoro Olowo-Okello and Emily Earthman Ziemba make convincing arguments in favor of state innocence commissions that affirmatively seek to identify and rectify wrongful convictions. Olowo-Okello takes a closer look at the habeas appeals system as contrasted with the creation of an "innocence commission," which is specifically tasked with uncovering wrongful convictions. Habeas appeals are highly technical and subject to a myriad of rules as to what claims can be pursued, the timeline for pursuing such claims, and whether later-discovered claims may be raised after an initial habeas appeal is filed. Procedural requirements inherent in the habeas process often preclude effective relief if evidence of innocence is discovered late in the process. Olowo-Okello concludes that habeas petitions are insufficient to address the problem of wrongful convictions and argues for the creation of an innocence commission in the style of North Carolina's, the only one of its kind.
Ziemba concludes this anthology with a comparative discussion of innocence commissions in the United Kingdom and Canada. She argues that the rising number of exonerees clearly points to the need for a systematic reform in the criminal justice system, and that innocence commissions are a vital component of such systems. She examines the different structures and rules that operate within the Canadian and British models and makes the case for certain aspects of each to be adopted in the development of innocence commissions in this country.
Readers will notice that a number of the articles in this anthology address Texas law to a greater or lesser degree. This project originated as a class exercise at the University of Houston Law Center. The articles were intended to be offered as a resource tool for the Timothy Cole Advisory Panel on Wrongful Convictions (TCAP). The TCAP was created by the Texas legislature in 2009 to study the causes of wrongful convictions and to make suggestions for legislative reform. The panel plans to release its findings and recommendations before the session of the Texas Legislature beginning in January 2011. The lessons in this collection of articles, while providing invaluable insights for the TCAP, also have much to offer policymakers in other states as well. The research in Jennifer Hopgood's article on access to DNA testing, for example, while directly applicable only to Texas, serves as an important cautionary tale for other jurisdictions. It is simply not safe to assume that any prisoner who requests DNA testing of evidence in his or her case will obtain such testing. Do state statutes give an appropriate level of access to DNA testing? Are courts properly interpreting those statutes? These are important questions, and researchers should consider replicating Hopgood's work for other states.
While the prospect of reforming the criminal justice system in order to prevent wrongful convictions may be daunting, it is both a necessary and attainable goal. Several of the reforms proposed by the authors have already been implemented in domestic or international jurisdictions and may cost relatively little. Others may require more thorough intervention from state legislatures. However, given the incredibly high cost of wrongful convictions as described in this anthology, these investments are worthwhile and will pay dividends by restoring the public's confidence in the justice system. Whatever measures are ultimately adopted, accuracy and fairness should be hallmarks of American justice in the age of innocence.
This book is the product of the hard work of many people. The editors owe a debt of gratitude to two people without whom the project would not have been possible. To Brooke Sizer (University of Houston, J.D. 2012), we are grateful for her excellent assistance in reviewing earlier drafts of this manuscript. Her dedication, good sense, and courageous pursuit of the truth greatly improved the quality of the book. The other person whose talents must be mentioned is Amanda Parker (University of Houston, B.A. 2010). Amanda is wholly responsible for bringing the work of many together and creating one, cohesive document. We are grateful to her for her outstanding computer skills and editing talents.
Finally, we could not have produced this book without the support of the Criminal Justice Institute (CJI) at the University of Houston Law Center, and, in particular, Dean Raymond T. Nimmer, as well as the many individuals who support CJI's activities. Finally, Professor Thompson would like to extend special thanks to her colleague and friend, David R. Dow, who is responsible for her appointment to the Timothy Cole Advisory Panel on Wrongful Convictions. Her involvement with the advisory panel inspired her to teach the course that produced the essays in this book.
Causes of Wrongful
A. Eyewitness Identification
The Science and Need for
Brian M. Harrison
With over 253 exonerations nationwide, wrongful conviction has become the most visible criminal justice issue of our time. With each exoneration a small part of justice is restored, but a larger portion of the public's trust in the court system is lost. And, there are indications that these exonerations may represent the tip of an iceberg. The vast majority of exonerations are possible only because biological material exists for DNA testing. Unfortunately testable evidence exists in only a small fraction of total crimes. Faced with a crisis, the full dimensions of which we may never grasp, many states are reforming their trial practices to prevent further miscarriages of justice.
Involved in 75% of all exonerations, eyewitness misidentification is by far the largest cause of wrongful conviction. Reform is desperately needed, and this article outlines some of the proposed changes. Part II surveys the extensive scientific findings of researchers in the field and addresses the factors that affect an eyewitness's ability to identify a suspect. By understanding the various factors the police can develop new and more accurate techniques to avoid false identifications.
Excerpted from American Justice in the Age of Innocence Copyright © 2011 by Sandra Guerra Thompson, Jennifer L. Hopgood, and Hillary K. Valderrama. Excerpted by permission.
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