Table of Contents Introduction I. Understanding the Problem of Testimonial Ossification A. Sufficiency Review B. Error-Based Review C. Innocence-Based Protections II. Resituating the Jury as Factfinder A. The Jury as Lie Detector B. Two Normative Upshots 1. Informational loss 2. Limits to appellate recovery C. The Promise of Special Factfinding III. Introducing Credibility Interrogatories A. The Proposal 1. Procedural contours and safeguards 2. Form and content 3. Framework for judicial discretion 4. Handling inconsistency B. The Functional Case for Expanded Credibility Factfinding 1. Circumscribing sufficiency 2. Assessing prejudicial error 3. Identifying meritorious claims C. Responding to Three Principal Objections 1. Nullification and lenity 2. Sanctity of the jury verdict 3. Judicial economy Conclusion Introduction
Our criminal justice system is plagued by unreliable testimony. Some witnesses "misperceive, misremember, [or] misdescribe." (1) Some lie--for money, for status, for lenity, or for no reason at all. (2) False and perjured statements are among the foremost causes of wrongful convictions in the United States. (3) In recognition of the danger that unreliable testimony poses, criminal law has erected a net of procedural safeguards to prevent the jury from falling under its influence. (4) But no similar caution is shown on appellate review.
Consider the following scenario. You are wrongfully charged with a serious offense. During trial, the prosecution calls a witness to the stand. The witness lies. He testifies that he saw you fleeing the scene of the crime. To any cautious observer, his testimony would set off alarm bells: He is a jailhouse informant, he has pecuniary motives, and his story melts under cross-examination. For these reasons, the jury declines to credit his testimony during its deliberations. Nevertheless, the jury convicts you on the force of the state's remaining case. You challenge the conviction. What result on appeal?
Your outlook is grim. Under current law, the reviewing court is required to treat the fact of conviction as nearly insurmountable evidence that the jury found the witness's testimony credible. (5) Indeed, it must presume the jury found the testimony so credible as to outweigh any evidence you may have put forward. (6) If the prosecution committed error-even grave error--in bringing its case, this error may be found "harmless" on the theory that the witness's testimony constituted "likely" or "overwhelming" evidence of guilt. (7) The court may decline to order forensic evidence retested, reasoning that the witness's statements defeat your claim of actual innocence. (8) And should new DNA evidence preclude you from having been the perpetrator, a judge may nevertheless cite the witness's testimony as sufficiently probative to obviate the need for a new trial. (9)
The manner in which judicial presumptions surrounding bad testimony inhibit appellate review is a problem this Note calls "testimonial ossification." (10) Recent scholarship has begun to examine its causes, but no work has treated the phenomenon comprehensively. (11) Thus, few commentators have questioned that the jury's general verdict can be read to imply credibility judgments about specific witnesses. (12) Instead, they blame the jury for mishandling unreliable testimony. (13) And their reform proposals primarily center on changing the standard of appellate review so as to give judges greater freedom to act as independent "lie detectors." (14) These proposals miss the mark. For all their faults, jurors have important things to say about witness reliability. Our criminal justice system is made worse--not better--when it declines to listen to them. And requiring appellate courts to come to their own credibility judgments is inefficient, inaccurate, and contrary to the jury's proper democratic function.
This Note proposes an alternative solution: a trial-level prophylactic in the form of carefully drafted special interrogatories. (15) Commentators have largely brushed over this possibility, reasoning that findings beyond the general verdict are disfavored in criminal trials. (16) But are they really? Special interrogatories have a long--if misunderstood--history in American criminal law. (17) And recent years have seen a pronounced resurgence in their use. (18) To date, only a handful of works have provided commentary on this resurgence. (19) Those handful have had an outsize influence on state and federal law. (20) But little ink has been spilled on the potential of special interrogatories to combat wrongful convictions--and still less on how such a move might be made palatable to courts. (21)
This Note attempts to fill that void. It argues that defendants facing suspect testimony could protect themselves by requesting judicially administered "credibility interrogatories." Should the jury vote to convict, the judge would present the jurors with a set of special interrogatories asking them to indicate if they unanimously found certain witnesses' testimony too unreliable to credit. This simple intervention solves a range of issues currently hindering criminal appeals. And it does so in a manner consistent with current law. (22) There is no need for statutory amendment, no departure from precedent. By repurposing a tool already used by trial courts, this proposal empowers judges and defense counsel to head testimonial ossification off at the pass.
This Note proceeds in three Parts. Part I illustrates how the legal fiction of deference to juries' credibility judgments allows bad testimony to derail sufficiency, error-based, and innocence-based review. Each Subpart begins with an exposition of current doctrine and closes with an illustration underscoring the danger it poses. Part II calls into question the presumptions which give rise to testimonial ossification. It highlights the costs of ignoring jury judgments, the danger of turning reviewing courts into lie detectors, and the potential utility of targeted jury factfinding. Part III shows how courts could combat testimonial ossification through the use of credibility interrogatories. It explains the instrument's optimal form and function, argues for its potential to facilitate criminal appeals, and responds to some of the practical and doctrinal objections that might be raised.
Understanding the Problem of Testimonial Ossification
Bad testimonial evidence creates a number of difficulties for postconviction review, a phenomenon which this Note labels "testimonial ossification." This Part explores how testimonial ossification impedes three important avenues for challenging wrongful convictions: sufficiency review, error-based review, and innocence-based protections.
In any criminal case, the state must prove guilt beyond a reasonable doubt. (23) This protection extends to appellate review: When a judge finds the evidence presented at trial insufficient to sustain a conviction, that conviction cannot stand. (24) However, in a federal sufficiency-of-the-evidence challenge, the reviewing court is not to assess the defendant's probable guilt de novo. (25) Instead, the proper inquiry, specified by the U.S. Supreme Court in Jackson v. Virginia, is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (26) This means considering "all of the evidence ... in the light most favorable to the prosecution." (27) State courts have largely settled on the same standard. (28)
Despite the Supreme Court's exhortation that this approach is friendlier to defendants than the "no evidence" rule previously employed, (29) sufficiency review is still a largely impotent tool of innocence protection. Sufficiency challenges are common, (30) but they almost never prevail. (31) The reason for their inefficacy has much to do with how the aforementioned standards interact with bad testimonial evidence. Under Jackson, a reviewing court must presume that the jury believed the testimony of all of the prosecution's witnesses. (32) This presumption is functionally indestructible. (33) That is, even a conviction resting "solely upon the uncorroborated testimony of an [alleged] accomplice" must be upheld on sufficiency grounds unless it is either "physically impossible" that the witness could have seen the event or "impossible under the laws of nature" that the event could have occurred at all. (34) Many states similarly require that the testimony be "inherently incredible" to be excluded from consideration on sufficiency review. (35)
In applying Jackson, judges almost always presume that the jury's belief in witness testimony outweighed all competing evidence. (36) They do this not only in the face of compelling defense testimony, (37) but also in the face of objective scientific evidence such as DNA testing. (38) Thus, the only real hope of winning on a sufficiency challenge is if a vital component of the prosecution's case goes unsupported. (39) This reduces to a single question: Was there any testimony--no matter how implausible--which supports the necessary inferences?
To understand the special power these presumptions give to bad testimony, consider the facts of two sufficiency review cases related to the same criminal act. This story is set at a paper mill in Green Bay, Wisconsin, where Thomas Monfils called the police on his coworker Keith Kutska for stealing a piece of electrical cord. (40) Kutska refused to have his bag searched, and he was suspended for five days. (41) Monfils was later found dead in of one of the mill's pulp vats. (42) Charges were filed, and convictions secured, against Kutska and five other coworkers. (43) The defendants sought habeas relief on sufficiency grounds. It is instructive to examine how two of these cases played out.
The first is the case of Michael Piaskowski, who was convicted of first-degree murder. (44) The government's case against Piaskowski relied...