Wrongful Convictions and Miscarriages of Justice

Causes and Remedies in North American and European Criminal Justice Systems

C. Ronald Huff, Martin Killias, C. Ronald Huff, Martin Killias

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135072254
• Edition: 1
• Topic: Scienze sociali
• Subtopic: Criminologia

This innovative work builds on Huff and Killias' earlier publication (2008), but is broader and more thoroughly comparative in a number of important ways: (1) while focusing heavily on wrongful convictions, it places the subject of wrongful convictions in the broader contextual framework of miscarriages of justice and provides discussions of different types of miscarriages of justice that have not previously received much scholarly attention by criminologists; (2) it addresses, in much greater detail, the questions of how, and how often, wrongful convictions occur; (3) it provides more in-depth consideration of the role of forensic science in helping produce wrongful convictions and in helping free those who have been wrongfully convicted; (4) it offers new insights into the origins and current progress of the innocence movement, as well as the challenges that await the exonerated when they return to "free" society; (5) it assesses the impact of the use of alternatives to trials (especially plea bargains in the U.S. and summary proceedings and penal orders in Europe) in producing wrongful convictions; (6) it considers how the U.S. and Canada have responded to 9/11 and the increased threat of terrorism by enacting legislation and adopting policies that may exacerbate the problem of wrongful conviction; and (7) it provides in-depth considerations of two topics related to wrongful conviction: voluntary false confessions and convictions which, although technically not wrongful since they are based on law violations, represent another type of miscarriage of justice since they are due solely to unjust laws resulting from political repression.

1 Wrongful Convictions AND Miscarriages of Justice in Comparative Perspective Preface and Introduction

C. Ronald Huff and Martin Killias

DOI: 10.4324/9780203597286-1

When we published an earlier book¹ on wrongful convictions with a cross-national, comparative focus, we noted that the extant literature on wrongful convictions seldom included cross-national perspectives. That book included a number of “nation reports,” describing and analyzing wrongful convictions in the context of an array of different criminal justice systems in the U.S., Canada, a number of European nations, and Israel. It stimulated considerable discussion concerning topics such as the causes of wrongful convictions; the respective advantages and disadvantages of the adversarial and continental/inquisitorial systems of justice; how the incidence of wrongful convictions might best be reduced; and other important topics. In the United States, the International Division of the National Institute of Justice, acting in part in response to the book, held a conference on this important subject, bringing together scholars and policymakers from a number of nations on several continents to discuss the challenges posed by wrongful convictions and how we might learn from each other's experiences. The conference included a keynote address and resulted in a comprehensive report.²

While also incorporating cross-national perspectives, this book's focus is broader in a number of ways:

1. while focusing heavily on wrongful convictions, it places the subject of wrongful convictions in the broader contextual framework of miscarriages of justice and provides discussions of different types of miscarriages of justice that have not previously received much scholarly attention by criminologists;
2. it addresses, in much greater detail, the questions of how, and how often, wrongful convictions occur;
3. it provides more in-depth consideration of the role of forensic science in helping produce wrongful convictions and in helping free those who have been wrongfully convicted;
4. it offers new insights into the origins and current progress of the innocence movement, as well as the challenges that await the exonerated when they return to “free” society;
5. it assesses the impact of the use of alternatives to trials (especially plea bargains in the U.S. and summary proceedings and penal orders in Europe) in producing wrongful convictions;
6. it considers how the U.S. and Canada have responded to 9/11 and the increased threat of terrorism by enacting legislation and adopting policies that may exacerbate the problem of wrongful conviction;
7. it provides in-depth considerations of two topics related to wrongful conviction: voluntary false confessions and convictions which, although technically not wrongful since they are based on law violations, represent another type of miscarriage of justice since they are due solely to unjust laws resulting from political repression.

In Part I, we focus on issues concerning the causes of wrongful convictions and the frequency with which these errors occur. We begin with Chapter 2, in which Brian Forst correctly places the problem of wrongful conviction in the larger context of miscarriages of justice. Arguably, no one has done this better than Forst who, in an award-winning book,³ focused extensively on both Type I and Type II errors and their consequences for public safety and for society. In this chapter, Forst acknowledges the serious impact of wrongful convictions on the lives of offenders and their families, as well as on public respect for the criminal justice system. He notes, however, the large disparity between Type I and Type II errors, arguing that the data suggest that for every wrongful conviction, there may be more than 1,000 “failures to convict” in felony level cases. There are also other miscarriages of justice, including wrongful arrests made by the police; violence against unarmed, innocent people; and other injustices. He then focuses on how we might better manage our errors, drawing on lessons from statistical inference and on examples of how product defects are addressed. Noting that reducing either false positives or false negatives can have an adverse impact on the other type of error, he focuses on reducing the social costs of miscarriages of justice, including recommendations for the police, prosecution, courts, and corrections regarding how we might begin to manage wrongful convictions “mindfully.”

Perhaps no one has devoted more time and effort than Samuel Gross in attempting to estimate the frequency of wrongful convictions and exonerations. How many of these errors do we make and how often do we discover those errors and exonerate the innocent? In Chapter 3, Gross argues that no one knows the exact answers to these questions. He reviews recent efforts to estimate the frequency of wrongful conviction. He then discusses the use of inferential methods of arriving at an estimate without having adequate direct information versus using actual exonerations in cases involving rape or homicide (where DNA is likely to be present) as another basis for estimation. He notes, however, that even the recent National Registry of Exonerations, which he co-founded, represents only a small percentage of the total. The rate of exonerations in states having the death penalty far exceeds the comparable rate in non-death penalty states, for example, and exonerations are far more likely in cases where DNA evidence is available for post-conviction appellate review. He concludes that about 2%–3% of death sentences since 1973 have ended in exoneration and that a reasonable estimate of wrongful convictions appears to be 1%–5% for serious felonies in the United States. Similar error rates involving airplane crashes, for example, would clearly be unacceptable, but what is our tolerance for wrongful convictions? And, of course, the questions posed by Gross relate to those posed by Forst in Chapter 2, as well, since reducing one type of error (wrongful convictions) can also increase the other type of error (failures to convict the guilty). Both have serious consequences for public safety and for public confidence in the criminal justice system.

While we know that human decision-making and human behavior are both prone to errors, and that those kinds of errors clearly contribute to wrongful convictions and other miscarriages of justice, what about systemic errors, those that are endemic to both adversarial and inquisitorial criminal justice systems? In Chapter 4, Martin Killias describes, summarizes, and compares these two types of systems that characterize North American and European criminal justice. He analyzes the comparative merits, as well as problematic aspects, of these two systems with respect to their systemic contributions to wrongful conviction errors. His discussion focuses especially on six key aspects of these systems:

1. the comparative emphasis placed on the search for the truth versus procedural justice;
2. the role of the defense counsel;
3. different functions of the trial;
4. different forms of “plea bargaining”;
5. different styles of police interviews/interrogations;
6. the role of confessions.

Killias concludes by making a number of recommendations designed to reduce systemic errors, thus reducing the number of wrongful convictions that occur in each type of system.

What can trial transcripts tell us about the factors that help generate wrongful convictions? In Chapter 5, Brandon Garrett summarizes what he found when he analyzed the trial transcripts of the first 250 DNA-based exonerations in the United States. For him, careful analysis of those transcripts raised a number of critical questions. For example, when jurors hear “evidence” about alleged confessions or hear testimony from eyewitnesses or from jailhouse informants, how can they tell if it has been compromised in some way? Garrett's chapter focuses on those three types of evidence, while noting that other factors also contributed significantly to the production of wrongful convictions and subsequent exonerations in those 250 cases, including flawed forensic evidence; incompetent defense counsel; prosecutorial and police misconduct; and judicial error due to inadequate oversight related to the tendency to afford prosecutors undue deference.

As Garrett mentions in Chapter 5, prosecutorial misconduct is one of the frequent factors related to wrongful convictions in the U.S., where prosecutors are ethically bound to pursue justice but too often seem intent on defending convictions instead—even when confronted with clear evidence that some of those convictions were erroneous, often sending innocent people to prison for many years. In Chapter 6, Jim Petro (a former prosecutor and former Ohio Attorney General who recently received the Champion of Justice Award from the Innocence Network) and Nancy Petro (his co-author on this chapter and on their recent book⁴) note that U.S. prosecutors are arguably the most powerful officials in the criminal justice system and argue that their power has increased even further as the proportion of convictions via plea bargains has increased. This chapter recounts Jim Petro's awakening as a prosecutor due to the wrongful conviction and subsequent exoneration of Clarence Elkins, who had been convicted almost exclusively on the erroneous testimony of his traumatized six-year-old niece, who had been raped by another man; examines the role of the prosecutor; discusses prosecutorial misconduct, including Brady⁵ violations related to the withholding of potentially exculpatory evidence; reviews recent court rulings on prosecutorial immunity; and offers potential wide-ranging remedies designed to reduce wrongful convictions. The Petros raise an important question: Given that we are aware of the role that prosecutorial misconduct has played in known cases of wrongful conviction that went to trial, how extensive might this problem be when well over 90% of convictions never go to trial but are, instead, arrived at through plea bargains? It is a troubling question, indeed.

As Simon Cole and William Thompson point out in Chapter 7, forensic science was not mentioned prominently as a possible contributor to wrongful convictions until the past two decades. After all, how could “science” help cause such terrible errors? Today, most of us think of forensic science as a tool to help free the wrongfully convicted but, as Cole and Thompson note, that perspective emerged primarily in the 1990s as the use of DNA testing became more widely employed and may have accounted for more than one-third of all wrongful convictions that have been exposed since 1989. This chapter points out that forensic science can contribute to both Type I and Type II errors and provides an in-depth analysis and discussion of how we might think about forensic science's role. How good a job does it do in providing scientific support for correct hypotheses and failing to support the kinds of incorrect hypotheses that can result in wrongful convictions? How does it sometimes contribute to the conviction of innocent defendants? The authors argue that this may be an appropriate “window of opportunity” to carefully assess forensic science as an institution and consider reforms that go beyond the usual focus on individual errors, since broader reforms are likely to have far greater impact.

Of course, forensic science plays a critical role in both adversarial and inquisitorial criminal justice systems, and it is often given even heavier weight in the latter, where greater deference is generally granted to experts. Nowhere has that been more apparent than in the recent case of Amanda Knox, the American student studying in Italy who was convicted of murdering her British roommate. In Chapter 8 Joëlle Vuille, Alex Biedermann, and Franco Taroni provide a detailed and careful analysis of the role that forensic science played in that case, re-examining the way in which the forensic scientists interpreted the results of the DNA testing that was subsequently introduced as evidence by the prosecution in convicting Knox. How did they interpret the results? Since inferences can vary, what inferences did they draw? How should one decide the probative value of such evidence? Should such forensic evidence be viewed as definitive or only in probabilistic terms? How did they frame their findings? The Knox case provides an excellent exemplar on which to base the kind of reconsideration of the role of forensic science that was suggested by Cole and Thompson in Chapter 7. Vuille et al. argue that forensic scientists and legal actors need to work together toward a common and logical framework for communicating the strength of forensic examinations to assist the triers of fact in reaching accurate conclusions regarding competing hypotheses.

Chapter 9 shifts our focus to another type of error that frequently contributes to the conviction of innocent persons—confirmation bias and related cognitive factors. Chrisje Brants provides a careful re-examination of four cases of wrongful conviction in the Netherlands. These cases illustrate a number of errors, including police incompetence and misconduct; unethical prosecutors and experts; failure to disclose potentially exculpatory evidence; misunderstandings about expert evidence; false confessions; and courts that believed “improbable theories.” Brants takes the reader on a guided tour inside the cognitive world of tunnel vision, belief perseverance, and confirmation bias as they affect cases in both the adversarial and inquisitorial systems of justice. She describes these errors and analyzes them in the context of the Dutch system, while also revealing the vulnerability of both kinds of systems due to human cognitive biases. She notes, ironically, that the legal cultures that surround both types of criminal justice systems also produce tunnel vision of their own, making it nearly impossible to effectuate any reforms that are not based on their existing fundamental characteristics.

While we have long known that false confessions are an important cause of wrongful convictions, Marcelo Aebi and Claudia Campistol introduce us, in Chapter 10, to another important subtype of false confession—voluntary false confessions that are motivated by a desire to obtain personal intangible benefits. Relying on press reports in Spain, they compile a database of reports involving such cases, and they conclude that such false confessions can be categorized into two subtypes of motivation: (1) false confessions designed to pressure legislators for changes in the law (for example, expanded decriminalization in cases involving abortion or euthanasia); and (2) false confessions intended to protect actual offenders by accepting responsibility for crimes that were actually committed by others (thus demonstrating loyalty to the group, for example). Aebi and Campistol also consider claims that the latter type of false confessions have frequently been employed by the ETA terrorist group, by juveniles, and by members of the Roma minority group, especially women, but they found no convincing empirical evidence to support those claims. The analysis presented by Aebi and Campistol raises interesting questions that one might contemplate, however, and that were raised in an earlier paper by Aebi.⁶ For example, what if a member of a terrorist group, such as the ETA, falsely confesses to a crime in order to divert attention from another active member of a terrorist cell, who may be planning major terrorist incidents? In his earlier paper, Aebi referred to such an act as a “voluntary wrongful conviction” and wondered if the police might drop their investigation due to such a false confession. Given the greater weight placed on confessions in the U.S. adversarial system, compared with the inquisitorial system, one might be concerned that closing the case and adding to the “clearance rate” in such a case might soon be followed by a major terrorist incident committed by persons who should have been suspects in a continuing investigation if the evidence did not correspond with the confession.

This mention of terrorism provides a convenient segue to Chapter 11, in which Kathryn Campbell focuses on U.S. and Canadian responses to the September 11 terrorist attacks on the United States. She asks whether, in attempting to deter such attacks in the future, these two neighboring countries might have adopted legislation and policies that have led to new forms of miscarriages of justice that have not received much scholarly attention in criminology. Post-9/11 examples of such legislative and policy initiatives include increasingly harsh immigration policies, preventive detention without charges or trials, and the increased use of deportation based on unsubstantiated allegations. What has been the impact of these policies on the presumption of innocence and on respect for due process in these two democracies? Campbell argues that the preventive detention policies in both the U.S. and Canada have created new forms of miscarriages of justice. She poses the important question of how such democratic societies should balance their understandable security concerns with the respect for individual rights that is so central to free democracies.

As Jim and Nancy Petro noted in Chapter 6, the ever-expanding reliance on plea bargains in the U.S. raises serious questions about how they might be contributing to wrongful convictions, given what we know about the serious ethical violations committed by some prosecutors in c...