NIJ Update

Wrongful Convictions: Causes , Prevention , Impact and Outlook for Corrections By Doris Wells

Author’s Note: Findings and conclu - charges dismissed before trial or was have the sophistication or knowledge sions reported in this article are those acquitted at trial. The following fac - to aid in his defense and may be slow of the author and do not necessarily tors were found to be statistically sig - to realize the gravity of the situation,” represent the official position or poli - nificant in explaining why an innocent the researchers said, or may have a cies of the U.S. Department of Justice. defendant, once indicted, ends up more difficult time proving an alibi. erroneously convicted rather than With respect to prior criminal history hy are some innocent released. (e.g., being known to the police or individuals convicted of having a mug shot), the expert panel crimes, while others are involved in the study noted that this Wnot? A new large-scale may bias police and prosecutors into empirical study funded by the Nation - prematurely narrowing the focus and al Institute of Justice (NIJ) has begun Wrongful convictions ignoring potentially exculpatory evi - to identify some answers regarding dence (e.g., having tunnel vision). wrongful convictions. 1 The study has have a detrimental Weak prosecution cases; prose - identified 10 statistically significant cution withheld evidence. Many factors that distinguish wrongful con - financial effect on weak prosecution cases lead to victions from “near misses” (cases in the entire criminal wrongful convictions. A weak case which an innocent defendant was may limit the ability of the prosecu - acquitted or had charges dismissed justice system ... tion to conduct an exhaustive investi - before trial). gation because there are not many It is the first large-scale empirical facts present. It may also lead to study on wrongful convictions. Past potential Brady violations if the prose - research has used a “case study” A “punitive” state or death The punitiveness of cution did not recognize potential methodology, which is only able to penalty culture. the state was assessed by using the exculpatory evidence. identify factors that are common in number of executions per the popula - cases of wrongful conviction (“corre - Strength of defense and using a tion of the state. States that executed lates”). In this study, researchers used defendant’s family member as a a larger percentage of the population As expected, a stronger the case comparison methodology — witness. were considered punitive states, and defense tended to lead to a dismissal with a control group and logistical defendants in punitive states were or acquittal of an innocent defendant. regression analysis (a statistical tech - perceived to be at an increased risk of “Notably, the type of the defense nique for estimating what factors erroneous conviction once indicted. attorney [private or public defender] would lead to a wrongful conviction According to the researchers, “In a was not significant in either the quan - instead of a rightful acquittal or punitive legal culture, police and pros - titative or qualitative analysis,” dismissal). ecutors may be more interested in researchers said. The researchers obtaining a conviction at all costs concluded that a weak defense; a (leading to greater Brady violations, weak case presented by the prosecu - Causes of Wrongful etc.) and community pressure may tion; and the failure to recognize and Conviction encourage overly swift resolutions to disclose exculpatory evidence many During the three-year project, using cases involving serious crimes like times work in conjunction with each both quantitative and qualitative analy - rape and murder.” A Brady violation other. For example, the expert panel ses, the researchers examined 460 vio - occurs when the prosecution with - participating in the study’s qualitative lent felonies that occurred between holds exculpatory evidence that could component affirmed that weak facts 1980 and 2012. In 260 cases, the convict - declare the defendant’s innocence. 2 may encourage prosecutors to engage ed defendant was exonerated after Age and criminal history of in certain behaviors that bolster factors being found factually innocent of the defendant. Young defendants were at that can lead to an erroneous convic - crime. In the comparison group of 200 an increased likelihood of conviction. tion. “In several of the erro neous cases, an innocent defen dant had the “A younger defendant will often not convictions, a prosecutor — con -

126 — November/December 2013 Corrections Today vinced of the defendant’s guilt of a wrongful conviction versus a They conclude that what separates despite a lack of conclusive proof — “near miss.” These included the race an erroneous conviction from a “near failed to recognize and turn over of the defendant; snitch testimony; miss” is not just a list of individual exculpatory evidence or enlisted a false confessions; police error; and factors, but more important, the noneyewitness to provide corrobo - many eyewitness testimony variables process by which initial errors rating testimony,” the researchers — such as interracial identification, remain undetected or uncorrected said. “These types of actions com - certainty of the witness and type of and lead to system failure. Note that pound previous errors or misconduct identification procedure. the study does not address how a in the case, resulting in an escalation factually innocent person enters the of commitment.” criminal justice system in the first A weak defense often has to resort Recommended place — just why one group of inno - to using family members to testify as cent people is convicted and the character witnesses. The researchers Prevention Measures other is released after an initial erro - The researchers agreed that pre - also found that a higher risk of erro - neous indictment. Why the innocent vention should apply to individuals neous conviction was statistically are convicted in the first place could across the whole criminal justice more likely in cases in which a defen - be a significant topic for future spectrum and recommended the dant’s family member testified as a research in this area. following strategies: witness. Misidentification of the defendant. • Create checklists for investiga - Although the overall frequency of tions — checklists that cover Impact and Outlook for misidentifications of defendants was the kinds of things that need to not significantly different in erro - Corrections be investigated before the case Wrongful convictions have a detri - neous convictions versus near miss - goes forward (e.g., checking mental financial effect on the entire es, a significant difference did emerge out a work alibi before moving criminal justice system, especially when misidentifications were broken the case forward); corrections. Correctional facilities, down as “intentionally false” or “hon - • Perform DNA tests early in the currently grappling with enormous estly mistaken.” That is, “Malicious case to weed out innocent sus - budget shortfalls, are forced to bear implication of a defendant led to a pects, if costs allow; the financial burdens of providing decreased likelihood of erroneous • Place a prosecutor at a police housing, treatment and training for conviction … but an honest, inadver - department to help evaluate individuals who are unjustly convict - tent mistake increased the likelihood the evidence as it comes in. ed. For example, according to a of erroneous conviction.” The prosecutor will be more recent NIJ-funded study, researchers Errors in the presentation of qualified to recognize exculpa - found that in California, it costs Errors in the forensic evidence. tory or faulty evidence that approximately $129 to house an prosecution’s presentation of foren - could prevent conviction; inmate for one day. 3 Imagine the cost sic evidence was correlated with an • Have prosecutors establish when this figure is multiplied many increased likelihood of erroneous open-file discoveries, where times over; and imagine the cost sav - conviction. These errors most often the defense has open access to ings if these individuals are not occurred in testimony or interpreta - the evidence file and the oppor - imprisoned at all, or exonerated. tion of evidence, rather than in actual tunity to spot exculpatory or NIJ is currently developing an scientific testing. “Such errors faulty evidence that could ongoing, multifaceted program to include neglecting to provide the jury declare a suspect’s innocence; understand the causes of wrongful with key information, such as the vic - • Provide a threshold of evi - conviction and encourage the devel - tim’s blood type, when it would mask dence to support why a sus - opment of policies to identify wrong - the perpetrator’s blood type; over - pect is in a lineup. In other fully convicted individuals and stating the inculpatory nature of the words, show the court some prevent the systemic errors that are evidence by providing inaccurate or strong evidence to support likely to contribute to erroneous nonexistent statistics; and misstating someone being in a lineup and convictions. It is important for cor - the certainty of the results when the in jeopardy of being misidenti - rections officials and staff to under - forensic technique — such as a bite fied; and stand the latest developments on this mark, scent or fiber analysis — does • Establish a post-error review of issue, since the corrections commu - not allow for it,” the researchers said. the case with the intention nity may play a role in helping to cor - Having Lying by noneyewitness. being not to blame, but to find rect errors impacting a wrongfully an individual who was not present at out what happened and to pre - incarcerated or supervised individ - the crime scene provide corroborating vent it from happening again. ual. At this time, there is no clear testimony increases the occur rence of superior practice for identifying and wrongful convictions. Surprisingly, The researchers believe that the notifying an incarcerated individual the study found that a number of fac - model they developed could be used that his or her case may warrant a tors that are traditionally associated to predict future cases of erroneous post-conviction review. States are with miscarriages of justice did not conviction across the U.S. with a high present a statistically significant risk degree of accuracy — 91 percent.

November/December 2013 Corrections Today — 127 applying methods that are most suit ed to their unique situations. Correc - tions administrators and staff may often have a vital role to play in sup - porting these individuals as they go through the convoluted process of seeking exoneration. Understanding the causes of wrongful convictions may help cor - rectional officers focus on such cases and become more willing to assist in exonerations, thus eventually saving their agencies money in reduced housing costs. Correctional facilities become the end result (the repository) for the wrongfully convicted. Correc - tional officers may now be called upon to help bring justice to these wrongfully convicted individuals. They may be able to provide input from a correctional perspective that can help streamline the exoneration process and save their facilities money.

ENDNOTES 1 Gould, J.B. and J.R. Firman. 2013. Wrong - ful convictions: The latest scientific research and implications for law enforce - ment. Recorded seminar, retrieved from http://nij.ncjrs.gov/multimedia/video- gould.htm. Gould, J.B., J. Carrano, R. Leo and J. Young. 2013. Predicting erroneous convic - tions: A social science approach to miscar - riages of justice. Washington, D.C.: Nationa l Institute of Justice. Retrieved from https://ncjrs.gov/pdffiles1/nij/grants/ 241389.pdf.

2 Brady v. Maryland (U.S. 1963) held that a prosecutor under the fifth and 14th amendments has a duty to disclose favor - able evidence to defendants upon request, if the evidence is “material” to either guilt or punishment.

3 Researchers at Development Services Group Inc., of Bethesda, Md., and Old Dominion University in Norfolk, Va., con - ducted the study of California parolees. To read their final report to NIJ titled Monitoring High-Risk Sex Offenders With GPS Technology: An Evaluation of the California Supervision Program, visit http://www.ncjrs.gov/pdffiles1/nij/grants/ 238481.pdf.

Doris Wells is a writer/editor at the National Institute of Justice.

Reprinted with permission of the American Correctional Association, Alexandria, Va. All rights reserved.

November/December 2013 Corrections Today — 129