Looking foreword: wrongful convictions and systemic reform.

• Author: Medwed, Daniel S.

For decades, scholars have asserted that our criminal justice system is not failsafe: innocent defendants can be and have been convicted at trial. (1) Yet what these scholars historically lacked was the ability to support this claim to a degree of scientific certainty. (2) The emergence of post-conviction DNA testing in the past sixteen years, however, has provided the scientific arrow to the scholar's theoretical bow; in taking aim at the criminal justice system, scholars can now refer to the cases of numerous people who have been exonerated of their crimes through science, their innocence proven beyond all shadow of a doubt. (3)

These cases not only demonstrate that innocent defendants are convicted in this country, substantiating many observers' longstanding fears, but also allow researchers to de-construct each individual injustice in order to ascertain "what went wrong." By analyzing the results of the DNA exonerations, Barry Scheck, Peter Neufeld, Sam Gross and others have pinpointed specific factors as contributors to wrongful convictions, most notably, mistaken eyewitness identifications, false confessions, junk science, police and prosecutorial misconduct, jailhouse informants, perjured testimony, poor defense lawyering, and racial bias. (4) Reforming the procedures that permit these factors to flourish in the first place is a matter of widespread importance given that biological evidence is rarely available in criminal cases and thus DNA exonerations likely comprise just a small percentage of the total number of potentially innocent prisoners in the United States. (5)

Now is the time to implement reform. Ultimately, the public may become inured to news accounts of exonerations and the sheer volume of DNA exonerations will undoubtedly dwindle as pretrial DNA testing becomes more prevalent. (6) These twin developments could, regrettably and inaccurately, signal to some people that wrongful convictions are no longer a problem--that it has been "fixed." Therefore, if the DNA era has genuinely spawned a "New Civil Rights Movement," as Scheck and Neufeld maintain, (7) then concerned citizens, activists, and scholars must capitalize on the growing public awareness of wrongful convictions and effect true systemic change. (8)

This compilation of essays and articles is designed to add to the literature relating to wrongful convictions and systemic reform, and the authors approach the problem from a variety of perspectives. Upon reflection, three broad themes emerge from the papers: the need to (1) examine the criminal justice system holistically and implement suitable structural changes; (2) continue to tinker with specific, micro-level elements of criminal law to protect innocent defendants; and (3) explore systems and theories outside American criminal law in seeking possible solutions.

First, Professors Andrew Leipold, Daniel Givelber, Erik Luna, and Andrew Siegel evaluate the overall system for adjudicating guilt or innocence in this country and contend that, in some ways, our fundamental processes are deficient. Professor Leipold analyzes the pretrial process, looking primarily at some of the procedural barriers to fact development, obstacles that might--in severe cases--lead to an innocent defendant being unable...