Wrongful Convictions and the Accuracy of the Criminal Justice System

Publication year2003
32 Colo.Law. 11
Colorado Lawyer

2003, September, Pg. 11. Wrongful Convictions and the Accuracy Of the Criminal Justice System


Vol. 32, No. 9, Pg. 11

The Colorado Lawyer
September 2003
Vol. 32, No. 9 [Page 11]


Wrongful Convictions and the Accuracy Of the Criminal Justice System
by Patrick Furman

H. Patrick Furman is a Clinical Professor of Law in the Legal Aid & Defender Program and the Director of Clinical Programs at the University of Colorado ("CU") School of Law. The author thanks third-year CU law student Joshua Nelson for his research assistance

Editor's Note: In a future issue of The Colorado Lawyer a member of the Colorado District Attorneys Council ("CDAC") intends to provide a different perspective on the issue of wrongful convictions

The wrongful conviction of an innocent person is the worst nightmare to anyone who cares about justice. Eighty years ago, Judge Learned Hand said, "Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream."1 The good judge was, as events of the last decade have conclusively proved, simply wrong. Although the criminal justice system has a number of safeguards designed to ensure that wrongful convictions are avoided, and the overwhelming majority of convictions are accurate determinations of fact, it is clear that wrongful convictions do occur.

For decades, public attention focused on the danger of a guilty person going free. Some people question, for example, whether the trade-off created by the exclusionary rule between the loss of probative evidence and the need to regulate police conduct is appropriate.2 Others argue that the courts are too stingy in admitting evidence of other misconduct by a criminal defendant.3 Although these issues can affect the accuracy of factual determinations by the criminal justice system, this article focuses on the other side of the accuracy issue: the danger of convicting a factually innocent person.4 Recent advances in DNA technology and other forensic sciences, along with hard work by lawyers and non-lawyers alike, have focused attention on the danger and reality of convicting an innocent person.5


Wrongful convictions are a concern of prosecutors and defense lawyers, liberals and conservatives, lawyers and non-lawyers. The issue involves the accuracy in the justice system, and accuracy is a goal that is shared by everyone. It concerns anyone who cares about law enforcement and public safety. For every innocent person wrongfully convicted, a guilty person roams free. Indeed, because the justice system is one of the cornerstones of democracy, it is not an overstatement to say that wrongful convictions concern anyone who cares about a democratic society.

A criminal justice system should be fair to all: wealth, race, and social status should not affect the administration of justice. American constitutional history is replete with cases addressing this promise. For example, Gideon v. Wainwright established the right to counsel, regardless of ability to pay;6 Tumey v. Ohio established the right of a defendant to a judge free of personal interest in the case;7 Brady v. Maryland established the right of a defendant to exculpatory information in the hands of the prosecution;8 and Batson v. Kentucky barred the improper use of race in jury selection.9 Decisions like these breathe life into the principle that no one shall be denied life or liberty without due process of law and that all persons are entitled to the equal protection of the law.

Even more fundamental is the principle that no justice system can operate fairly unless it can accurately determine guilt and innocence. The accuracy of the criminal justice system has been called into question in recent years by revelations, often generated by new DNA investigative techniques, of innocent people across the country in prisons and even on death rows.


It is impossible, given the state of current knowledge, to determine precisely how many innocent people have been wrongfully convicted. A Harris Poll of Americans taken in 2000 revealed that 94 percent of those surveyed believed that innocent people are sometimes convicted of murder, and estimated that this happens 13 percent of the time.10 Results of surveys of participants in the Ohio criminal justice system and of attorneys general across the United States were reported in a 1996 book in which the authors concluded that the best estimate of wrongful convictions from these respondents was 0.5 percent.11 In January 2003, it was reported that at least 13 of the 167 inmates on death row in Illinois (approximately 8 percent) were innocent. This first led to a moratorium on the death penalty, next to a major study of capital punishment in Illinois, and then to the commutation of all remaining death sentences to life imprisonment.12

The question of wrongful convictions in capital cases has been studied more than the question of wrongful convictions generally. Error rates in capital cases may be higher or lower than error rates in other cases, but there is no obvious reason to assume that the error rates are significantly different. A 1987 study of potentially capital cases - cases in which the death penalty was, or could have been, sought - attempted to determine the reasons for such errors. This study found 350 cases of wrongful convictions in America between 1900 and 1984.13 Research into the appellate treatment of death penalty cases has indicated that as many as two-thirds of the death sentences imposed in American trial courts have been reversed by appellate courts, although only a fraction of these reversals was based on findings of actual innocence.14

If the general public's estimate of a 13 percent error rate in murder convictions is applied to the total number of serious crimes (the FBI's so-called "index crimes") for which there is a conviction, the number of wrongful convictions is more than 200,000. Even if the most conservative estimate, that 99.5 percent of convictions are valid, 7,700 innocent people were convicted of serious crimes in the year 2000.15 Applying the Illinois death row error rate of 8 percent yields more than 123,000 wrongful convictions.

Clearly, no system will ever be perfect, and a 99.5 percent accuracy rate would be an admirable achievement. Some commentators have argued that errors are inevitable and, even in capital cases, acceptable.16 Others would argue that the wrongful conviction of 7,700 people - much less, 123,000 people - is simply unacceptable. Still others question the accuracy of any of these error rates. However, regardless of how the accuracy rate is viewed, or how the trade-offs between the need to convict the guilty and the need to exonerate the innocent are balanced, most would agree that reasonable steps can be taken to improve accuracy in the criminal justice system.


There is a better understanding of the reasons why erroneous convictions occur than there is of the overall error rate. In cases where error has been established, it is becoming increasingly clear that mistaken identification is the leading cause of erroneous convictions.17 The other common causes of wrongful convictions are: ineffective representation by defense counsel; police and prosecutorial misconduct; perjured testimony, particularly by government informants; and the corruption of scientific evidence.18 Each of these is discussed in this section. First, a general description of wrongful conviction statistics and what they mean is in order.

The seminal study of the causes of wrongful convictions was conducted by Yale Law Professor Edwin Borchard and published in 1932.19 The study reviewed 62 convictions from 27 American jurisdictions and 3 convictions from England, all culled from a larger group of possible wrongful conviction cases that Borchard evaluated.20 This study concluded that the most common cause of wrongful convictions was mistaken identification, the primary cause of 29 of the 65 wrongful convictions.21 Perjurious witnesses, over-reliance on circumstantial evidence, and overzealous prosecution were deemed the other most frequent causes of wrongful convictions.22 Borchard also noted that false confessions were a recurring cause of wrongful convictions.23

Some things have not changed much since then. In a book published in 2001, the most common causes of wrongful convictions were determined to be mistaken identifications, police and prosecutorial mistakes and misconduct, false confessions, and the misuse of informants.24 Two major Canadian studies have highlighted the existence of the same types of deficiencies in Canadian procedures.25 What has changed from Borchard's 1932 study is that ineffective assistance of defense counsel is now recognized as a significant contributing factor to many wrongful convictions.26 This may be a reflection of the increasingly important role played by defense counsel in criminal cases during that interval (and the increasing scrutiny to which that role has been subjected), rather than a reflection of a decline in the quality of representation.

Data concerning the causes of wrongful convictions are becoming both more plentiful and precise. Improvements in the use of DNA as a forensic tool continue to help improve the accuracy of the fact-finding process. Although DNA evidence is not available to prove the innocence of a wrongfully convicted person in most cases, the cases in which it has been used to help demonstrate innocence have received a great deal of press attention and have helped spark more public attention and...

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