Learning About Learning from Error James M

Ideas in POLICE American FOUNDATION Number 14 Policing May 2012 Learning About Learning From Error James M. Doyle here has been a lot of tragedies, can be replaced by justice practitioners may be ready learning from error going a new period dedicated to the to give it a try. There are strong T on in American criminal sustained, routine practice of arguments that the policing justice since the publication in learning from error? Criminal community can and should 1996 of the U.S. Department of Justice’s compilation of the first twenty-eight wrongful Ideas in American Policing presents commentary and insight from leading crimi- nologists on issues of interest to scholars, practitioners, and policy makers. The convictions exposed by DNA. papers published in this series are from the Police Foundation lecture series of the Does it indicate that criminal same name. Points of view in this document are those of the author and do not justice practitioners can adopt necessarily represent the official position of the Police Foundation. The full series is available online at http://www.policefoundation.org/docs/library.html. some version of the quality © 2012 Police Foundation. All rights reserved. reform initiatives that have reshaped other high-risk fields James M. Doyle, a Boston attorney, is currently a Visiting Fellow such as aviation and medicine? at the National Institute of Justice, where he is examining the Can the criminal justice system utility of the organizational-accident model for understanding and embrace “a theory of work, avoiding system-level errors in criminal justice. He has written which conceptualize[s] the extensively on the issue of eyewitness identification testimony continual improvement of in criminal cases, including a fourth edition of his treatise for quality as intrinsic to the work lawyers, Eyewitness Testimony: Civil and Criminal, and the itself” (Kenney 2008, 30)? historical narrative, True Witness: Cops, Courts, Science, and the Is it possible that the current Battle Against Misidentification. Mr. Doyle is a member of the era, characterized by episodic Police Foundation’s Research Advisory Committee. patches motivated by high-profile lead the way toward a systems- in the comfort that Scalia and the accepted the Green Book as a oriented approach to known system’s other apologists have call to action. For them, one errors and near misses that begins tried to offer them. The DNA error was too many. Dozens of to move beyond a culture of exonerations involve the sort of jurisdictions, independently of blame and builds partnerships bread-and-butter cases everyone each other, mobilized efforts to across all stakeholders in the had handled and would handle address the problems identified in criminal justice system. again, not arcane borderland the Green Book. The goal here is to outline a specimens. All veteran criminal The initial leadership came path for future exploration, not practitioners had seen mistakes in from different players in different to sell a fixed set of prescriptions. similar cases, and many veterans places. Former attorney general The possibilities I have in mind had themselves been involved Janet Reno, who decided are complex and difficult ones. with one—or at least with an that the Green Book would Still, we do have a place to start. uncomfortably close near miss. include commentary from It came as no surprise to veteran the full spectrum of criminal The Exonerations and detectives that eyewitnesses make justice system actors, provided mistakes; veteran detectives have an influential template. She Their Aftermath been to a lot of lineups and convened technical working Attempts by U.S. Supreme watched witnesses identify lots of groups under the auspices of NIJ, Court Justice Antonin Scalia, known innocent “fillers.” which brought together diverse among others, to dismiss the For the frontline troops, the stakeholders to hammer out and exonerations listed in the rarefied utilitarian calculations of publicize new criminal justice best National Institute of Justice’s error rate that fascinated Justice practices. These groups addressed (NIJ) Convicted by Juries, Scalia missed the point. Because crime scene investigations, Exonerated by Science: Case practitioners in all roles were death investigations, and Studies in the Use of DNA drowning in heavy caseloads, eyewitness evidence, among Evidence to Establish Innocence they could readily see that even other topics. Peter Neufeld After Trial (Connors, Lundregan, very low rates of error still and Barry Scheck, cofounders Miller, and McEwen 1996) result in a very high absolute of the Innocence Project, who (known to practitioners as the number of tragedies. Police had been among Reno’s Green Green Book) as a catalogue of practitioners confronting the Book commentators, called for a freakish mishaps have gained very early exonerations were uniquely learning-from-error initiative. little traction (Kansas v. Marsh sensitive to a key fact: whenever In North Carolina, the 2006). In part, this is because the wrong guy was convicted, the first impetus came from the whenever these arguments are right guy got away and claimed conservative Republican chief put forward the Innocence further victims. Of course, many justice of the North Carolina Project exposes yet another people managed to shrug this Supreme Court. In Boston and horrifying wrongful conviction. off as just the unavoidable cost Minneapolis, it came from elected But a more fundamental reason of doing business. But other district attorneys; in Illinois, that the influence of the DNA practitioners—again, particularly from Northwestern University’s exoneration cases continues to police practitioners—saw Center on Wrongful Convictions grow is that the criminal justice avoiding errors as a matter of and the Governor’s Commission system’s frontline practitioners— professionalism, workmanship, on Capital Punishment; and in the people who actually do the and, ultimately, self-respect, New Jersey, from a Republican work on the streets and in the not as an issue of social policy attorney general (Doyle 2005). courts—show very little interest (Bittner 1990). This early group More recently, the International —— 2 —— Association of Chiefs of Police has decided to convene a wrongful convictions summit. If we can learn, as Because exonerations take place at (or many years past) the medicine has learned, to end of the normal criminal justice process, many of the pioneering treat errors as sentinel learning-from-error initiatives that responded to the DNA events to be studied rather exonerations were dominated by the lawyers who operate the than embarrassments to be system’s terminal phases. A group of lawyers in these circumstances buried, we can all do a tends to luxuriate in examining the question, “How did the much better job. police screw this one up?” and then to share their answers generously with the media. Some in the policing Others have catalogued evaluation of errors? It may be community have resisted the these efforts and considered that the police have the most temptation to duck these their merits. I want to look to gain. In the age of DNA, gatherings. This was not true at them as precursors and ask there is no point in pretending of everyone, of course; plenty where these first steps could that mistakes do not happen; of people just hoped the whole lead. There is potential here for illusions of infallibility have thing would blow over. In many a new approach to mistakes and been placed irretrievably out of places, nothing has changed. near misses that promises more reach. As things stand, the police This is not yet a mass movement. than the penitential baring of take the largest share of public But in all instances where police throats to media abuse blame for wrongful convictions anything positive has grown out and lawyers’ criticisms. Tragic anyway. In this environment, a of the lessons of exonerations mistakes inspired medicine and public commitment to the frank it has been because the police aviation to blaze trails towards confrontation of known errors have at least acquiesced in the cultures of safety in ways that and near misses can provide an process, and usually because illuminate what we might develop important bulwark for police they have actively participated in within the criminal justice system. legitimacy. Besides, there are or led it. Practitioners who do If we can learn, as medicine has errors other than exonerations— not share much else share this learned, to treat errors as sentinel wrongful releases, cold cases much: they all hate wrongful events to be studied rather than that stayed cold too long, hot convictions. Every time judges, embarrassments to be buried, we spots that were not identified or cops, prosecutors, or Innocence can all do a much better job. A eliminated, avoidable street stops Network lawyers took steps conscious effort to see errors as and frisks of harmless citizens— forward, they found allies from an opportunity to find abiding that can yield valuable lessons. all points of the criminal justice root causes can drastically reduce The approaches learned by system, often from among their future risks. medicine, aviation, and other courtroom adversaries (Saloom Do the police have the high-risk endeavors can knit 2010). most to lose from the frank policing and policing research —— 3 —— back into the development of the lineup or photo array be were mistaken but they were criminal justice system policy administered by an investigator sincere, and the police had and practice. Pursuing those who: (1) does not know which usually gone by-the-book as their approaches can identify a member of the group is the book then stood. There were common ground on which suspect; (2) instructs the witness no obvious miscreants to hunt to mobilize and share the that the real perpetrator may or for and punish. The eyewitness insights of the past decade of may not be present; (3) displays reforms, largely by accident, evidence based and problem lineup suspects and the fillers were generated in a non-blaming solving policing expertise and to individually (sequentially) rather context.

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