The exoneration of more than two hundred and fifty people who have been wrongfully convicted makes it clear that America's criminal justice system isn't foolproof. It's important to understand the causes of wrongful conviction in order to find solutions to this growing problem. 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.

American Justice in the Age of Innocence

Understanding 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.
ISBN: 978-1-4620-1410-1

Contents

I. Introduction..............................................................1II. Acknowledgments..........................................................7III. Causes of Wrongful Convictions: Unreliable Evidence.....................9A. Eyewitness Identification.................................................9B. Custodial Interrogation and Confessions...................................77C. Jailhouse Informants......................................................193IV. Improving the Adversary System through Discovery.........................235VI. Creating Avenues to Uncover Actual Innocence.............................269A. Access to DNA Testing: A Texas Case Study.................................269B. The Case for Innocence Commissions........................................353VI. Conclusion...............................................................445

Chapter One

INTRODUCTION

The American criminal justice system is a delicate and intricate systemthat balances the needs of communities across the nation with the rightsof criminal suspects. Understandably, for many years the system's focushas 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 othercrimes may be used to prove guilt in the instant case. But, due in largepart to the exoneration of over two hundred wrongfully convictedindividuals across the United States, the focus is increasingly shiftingto innocence. In the face of the disturbing realization that the systemhas failed so many, there is a renewed interest in making sure that theinnocent are protected from wrongful conviction and recognition thatexisting safeguards are insufficient to meet this goal.

With this renewed interest in innocence growing in courtroomsand legislatures across the nation, difficult questions emerge. What doesAmerican justice in the age of innocence look like? What proceduralmechanisms can be adopted to ensure the integrity of the system whilepreserving its effectiveness in protecting the community it serves? Whatfactors lead to wrongful convictions, and how can they be avoided?What procedures could be adopted to provide effective relief to thosewho have been wrongfully convicted? Though there are no easy answersto these questions, the authors in this collection provide insightfularticles collecting research and making suggestions for improvement tothe criminal justice system. This anthology provides information aboutwhat factors cause wrongful convictions, how the adversary system canbe improved through increased discovery, and why creating avenuesto uncover actual innocence is a vital part of this new focus. It isdedicated to providing policymakers with the information needed tomake informed decisions about what American justice in the age ofinnocence should look like.

Though there are multiple causes of wrongful convictions, severalculprits stand out. Eyewitness identifications, custodial interrogationsand confessions, jailhouse informants, and the use of questionableforensic science have all been linked to wrongful convictions. Erroneouseyewitness identifications are linked to approximately three-quarters ofall DNA exonerations. Authors Brian Harrison and Christina M. Griffindescribe the dangers of current identification techniques and suggestchanges to minimize those dangers in the future. Harrison suggestssuch changes as increasing the use of reliable identification procedures(such as double-blind and sequential line-ups), requiring authorities toobtain a confidence statement from the eyewitness at the time of theidentification, and ensuring that all non-suspects in any line-up bearsome resemblance to the eyewitness's previous description of the culprit(rather than resembling the suspect). As a final measure, he recommendsthat any identification that does not follow these guidelines shouldbe excluded from court. Griffin further addresses the "best practices"recommended for reducing erroneous identifications. She addresses theimplementation of these changes at the state level by comparing thedifferent legislative approaches and policy standards used by states. Sheanalyzes the different approaches and suggests what would work best inTexas, thus tailoring a path for reform in Texas, as well as other statesconsidering procedural reforms.

Next, Tanya Broholm and Hillary Valderrama discuss custodialinterrogations and confessions. Custodial interrogations are intended toproduce a true and accurate account of events from suspects, but thereis ample evidence that many of the interrogation procedures currentlyemployed create a danger of false confessions. Once considered a rareoccurrence, the work of innocence projects around the country hasconclusively demonstrated that false confessions happen with somefrequency and are also linked to wrongful convictions. More problematicstill is the fact that jurors accord confession evidence disproportionateweight in delivering their verdicts. Broholm describes several casesinvolving false confessions and concludes that videotaping interrogationsin their entirety is necessary to safeguard the rights of the accused andthe integrity of the criminal justice system. It also gives the judiciarymore reliable evidence to evaluate motions to suppress confessions.Valderrama details various risk factors linked to false confessions. Sheproposes the elimination of several popular interrogation practices(such as minimization, maximization, and the use of falsified evidence),videotaping interrogations in their entirety, and creating proceduralmechanisms to ensure that only reliable confessions are presented tojurors.

The use of jailhouse informants or "snitches" presents yet anotheropportunity for reform. As Matthew Gilliam discusses, due to the factthat such informants are frequently offered substantial reductions intheir sentences in return for their testimony, they have strong incentivesto fabricate confessions. As a result, jailhouse informants are among theleading causes of wrongful convictions in the United States. Gilliamadvances Illinois' legislation regarding the use of jailhouse informantsas a model for other states. He also concludes that rigorous compliancewith the letter and spirit of the mandates of Brady v. Maryland requiresthat prosecutors diligently provide defendants with exculpatoryevidence regarding jailhouse informants. Such information couldinclude the informant's criminal history, any other statements madeby the informant, and whether the informant has ever testified forthe prosecution before in another criminal trial. Establishing clearboundaries for the use of jailhouse informants and giving defensecounsel impeachment evidence regarding the informant ensures thatonly sufficiently reliable testimony is presented to the jury and thatthe jury has adequate information to evaluate the credibility of thattestimony.

After addressing the causes of wrongful convictions, this anthologyshifts its focus to methods for improving the adversary system throughdiscovery. Adequate information regarding the opposing party's case isessential in any litigation, and criminal cases are no exception. Recently,there has been a growing movement to statutorily require prosecutorsto maintain "open file" policies under which they provide the contentsof their files to the defense counsel. However, less attention has beenpaid to defense disclosure and under what circumstances defenseattorneys should be required to open their file to the prosecution.Ryan King discusses the merits of reciprocal discovery and providesrecommendations for the implementation of such a system. Specifically,King addresses the Texas Senate Bill 560 proposed in 2005, whichwould have created disclosure obligations for both the prosecutionand defense attorneys that far surpass current requirements. But it didnot pass. He argues that this law deserves further consideration. Byrequiring disclosure of these types of information for both the defenseand prosecution, courts will be able to better fulfill their role in "seekingthe truth" and discourage "trial by surprise" for either side.

The final section of this anthology is dedicated to providing reliefto those the system has failed by creating avenues to discover actualinnocence. In the absence of a state's affirmative commitment to seekout wrongful convictions, wrongfully convicted individuals may neverbe identified or successful in seeking relief. Jennifer Hopgood discussesthe difficulties inherent in seeking relief for wrongful convictions,even where DNA evidence is available to a defendant. Despite theavailability of a state statute ostensibly providing for access to DNAevidence, Hopgood finds that individuals pursuing claims of wrongfulconvictions in Texas experience great difficulty in obtaining access tothe DNA evidence that could exonerate them. Her research suggeststhat even a mechanism providing access to DNA evidence may onlynominally increase an individual's ability to obtain relief for a wrongfulconviction. Additional measures are needed, and statutes providing forsuch access are not adequate substitutes for concerted, systematic effortsto identify and resolve claims of actual innocence.

Finally, Yesoro Olowo-Okello and Emily Earthman Ziemba makeconvincing arguments in favor of state innocence commissions thataffirmatively seek to identify and rectify wrongful convictions. Olowo-Okellotakes a closer look at the habeas appeals system as contrastedwith the creation of an "innocence commission," which is specificallytasked with uncovering wrongful convictions. Habeas appeals arehighly technical and subject to a myriad of rules as to what claims canbe pursued, the timeline for pursuing such claims, and whether later-discoveredclaims may be raised after an initial habeas appeal is filed.Procedural requirements inherent in the habeas process often precludeeffective relief if evidence of innocence is discovered late in the process.Olowo-Okello concludes that habeas petitions are insufficient to addressthe problem of wrongful convictions and argues for the creation of aninnocence commission in the style of North Carolina's, the only oneof its kind.

Ziemba concludes this anthology with a comparative discussionof innocence commissions in the United Kingdom and Canada. Sheargues that the rising number of exonerees clearly points to the need fora systematic reform in the criminal justice system, and that innocencecommissions are a vital component of such systems. She examinesthe different structures and rules that operate within the Canadianand British models and makes the case for certain aspects of eachto be adopted in the development of innocence commissions in thiscountry.

Readers will notice that a number of the articles in this anthologyaddress Texas law to a greater or lesser degree. This project originatedas a class exercise at the University of Houston Law Center. The articleswere intended to be offered as a resource tool for the Timothy ColeAdvisory Panel on Wrongful Convictions (TCAP). The TCAP wascreated by the Texas legislature in 2009 to study the causes of wrongfulconvictions and to make suggestions for legislative reform. The panelplans to release its findings and recommendations before the sessionof the Texas Legislature beginning in January 2011. The lessons inthis collection of articles, while providing invaluable insights for theTCAP, also have much to offer policymakers in other states as well. Theresearch in Jennifer Hopgood's article on access to DNA testing, forexample, while directly applicable only to Texas, serves as an importantcautionary tale for other jurisdictions. It is simply not safe to assumethat any prisoner who requests DNA testing of evidence in his or hercase will obtain such testing. Do state statutes give an appropriatelevel of access to DNA testing? Are courts properly interpreting thosestatutes? These are important questions, and researchers should considerreplicating Hopgood's work for other states.

While the prospect of reforming the criminal justice system inorder to prevent wrongful convictions may be daunting, it is both anecessary and attainable goal. Several of the reforms proposed by theauthors have already been implemented in domestic or internationaljurisdictions and may cost relatively little. Others may require morethorough intervention from state legislatures. However, given theincredibly high cost of wrongful convictions as described in thisanthology, these investments are worthwhile and will pay dividendsby restoring the public's confidence in the justice system. Whatevermeasures are ultimately adopted, accuracy and fairness should behallmarks of American justice in the age of innocence.

Chapter Two

Acknowledgments

This book is the product of the hard work of many people. The editorsowe a debt of gratitude to two people without whom the project wouldnot have been possible. To Brooke Sizer (University of Houston, J.D.2012), we are grateful for her excellent assistance in reviewing earlierdrafts of this manuscript. Her dedication, good sense, and courageouspursuit of the truth greatly improved the quality of the book. The otherperson whose talents must be mentioned is Amanda Parker (Universityof Houston, B.A. 2010). Amanda is wholly responsible for bringing thework of many together and creating one, cohesive document. We aregrateful to her for her outstanding computer skills and editing talents.

Finally, we could not have produced this book without the supportof the Criminal Justice Institute (CJI) at the University of HoustonLaw Center, and, in particular, Dean Raymond T. Nimmer, as wellas the many individuals who support CJI's activities. Finally, ProfessorThompson would like to extend special thanks to her colleague andfriend, David R. Dow, who is responsible for her appointment tothe Timothy Cole Advisory Panel on Wrongful Convictions. Herinvolvement with the advisory panel inspired her to teach the coursethat produced the essays in this book.

Chapter Three

Causes of Wrongful
Convictions: Unreliable
Evidence

A. Eyewitness Identification

Eyewitness Identification:
The Science and Need for
Reform

Brian M. Harrison

I. Introduction

With over 253 exonerations nationwide, wrongful conviction hasbecome the most visible criminal justice issue of our time. With eachexoneration a small part of justice is restored, but a larger portion of thepublic's trust in the court system is lost. And, there are indications thatthese exonerations may represent the tip of an iceberg. The vast majorityof exonerations are possible only because biological material exists forDNA testing. Unfortunately testable evidence exists in only a smallfraction of total crimes. Faced with a crisis, the full dimensions of whichwe may never grasp, many states are reforming their trial practices toprevent further miscarriages of justice.

Involved in 75% of all exonerations, eyewitness misidentification isby far the largest cause of wrongful conviction. Reform is desperatelyneeded, and this article outlines some of the proposed changes. PartII surveys the extensive scientific findings of researchers in the fieldand addresses the factors that affect an eyewitness's ability to identifya suspect. By understanding the various factors the police can developnew and more accurate techniques to avoid false identifications.

Continues...

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