One hundred years later: wrongful convictions after a century of research.

• Author: Gould, Jon B.
• Position: Centennial Symposium: A Century of Criminal Justice

1. INTRODUCTION

   Almost a century ago in the predecessor to this Journal, (1) Yale law professor Edwin Borchard kicked off the study of wrongful convictions in the modern era (2) when he published an article on European approaches to "unjust convictions." (3) Almost a century later, professors Samuel Gross and Barbara O'Brien published a critical assessment of the state of knowledge on wrongful conviction. Arguing that researchers "do not know much about false convictions" and that "it will be difficult to learn more," they concluded that the "main message is gloomy." (4)

   Although both of us greatly respect the work of Gross and O'Brien--indeed, Gross is a leading, perhaps even the leading, scholar in the field at the moment--we disagree with their conclusion about the state of knowledge. To be sure, questions remain about the representative characteristics of all (i.e., known and unknown) wrongful convictions and their prevalence, queries that may prove difficult ever to answer. Nor do we yet have a good grasp on how the sources of wrongful convictions differ from the frailties found in criminal cases as a whole. But to say we know little about the subject, we believe, is not fully to appreciate the import of decades of research on wrongful convictions, and especially some of the most insightful work that has been conducted in the last two decades.

   In this Article, we analyze nearly a century's worth of research into wrongful convictions, explaining the many lessons of this body of work and suggesting where additional research and attention are needed. The Article is divided into four sections. In Part II, we chronicle the range of research that has been conducted over the last several decades and explain how it has changed in form. Part III is the bulk of the Article and where we address the challenge provided by Gross and O'Brien. We begin this section by acknowledging questions about the rate of wrongful convictions and argue that, whatever the correct figure, wrongful convictions are far from rare in the criminal justice system. We then turn to the effects of wrongful convictions, describing the several harms of erroneous prosecutions and convictions that researchers have identified. From there, we address the sources of these errors and seek to categorize the various findings about these factors. Our overall argument in this section is two-fold: first, we should consider these factors as contributing sources, not exclusive causes, of wrongful convictions; and second, the research has actually uncovered a great deal about how these sources operate and what remedies might prevent their effect.

   Although the research has identified a common set of sources, we agree with Gross and O'Brien that the methodology for studying wrongful convictions could be improved. In Part IV we discuss those studies that have used matched comparison samples and explain how the field could be improved by additional research that employs such comparisons or controls. Finally, in Part IV, we turn the tables, contending that improvement is needed less in the quality of research than within the professional, policy, and political communities that might employ the lessons learned from the wrongful convictions research. With all of the information that has been amassed over the last century of inquiry, it is embarrassing to the point of shameful that criminal justicians, policymakers, and politicians do not follow the example of other professions and seek to learn from and prevent systemic error. (5) We have no doubt that researchers will continue to expand our understanding of wrongful convictions in the years ahead. But unless those charged with maintaining our criminal justice system are open to those findings and are willing to act on the lessons learned, the research may become, quite literally, an academic exercise.

2. A SHORT HISTORY OF RESEARCH ON WRONGFUL CONVICTIONS

   In 1913, Edwin Borchard's article opened the eyes of American observers to the scourge of wrongful convictions by describing European approaches to righting the wrongs of erroneous convictions. (6) Twenty years later, his book, Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice, created a stir when it identified sixty-five cases in which an innocent person had been convicted. (7) Borchard also classified the likely "sources of error including erroneous eyewitness testimony, false confessions, faulty circumstantial evidence, and prosecutorial excesses." (8) Yet, for the next fifty years, research on wrongful convictions was sporadic. "Typically, one big-picture book or major article [was] published every decade or so on the subject of miscarriages of justice," many of which "followed a familiar structure." (9) Authors would assert the importance of clearing the innocent; they would describe cases in which an innocent defendant had been convicted; and they would close by proposing reforms to prevent future errors. Among those who followed in this literary path were Erie Stanley Gardner, creator of the fictional defense lawyer Perry Mason, (10) and Judge Jerome Frank, who collaborated with his daughter Barbara on the book, Not Guilty. (11)

   "Until the late 1980s, it might have seemed bizarre, if not incoherent, to suggest that the study of miscarriages of justice constituted a field or area of academic study, rather than merely a series of unrelated and relatively infrequent articles and books." (12) However, in 1987, Hugo Bedau and Michael Radelet published their groundbreaking study in the Stanford Law Review, claiming that 350 individuals had been wrongly convicted in potentially capital cases over much of the twentieth century. (13) In addition to describing the facts of these cases, Bedau and Radelet systematically analyzed the sources of these errors and the methods by which the mistakes had been discovered. Their work led to a florescence of research on wrongful convictions, inspiring others to research and write about the sources and consequences of wrongful convictions, (14) as well as to re analyze (15) and extend their findings. (16) All the while, they have continued to collect, analyze, and publish data about wrongful conviction cases. (17)

   Bedau and Radelet's article was followed in the 1990s by a series of books on the subject. (18) Often following a "familiar plot" (19) of works like Borchard's 1932 book, these publications once again reminded the reading public that wrongful conviction cases were real, that they contravened the ideals of the American criminal justice system, that they had common sources, and that these errors ought to be rectified. Yet, for the attention these books may have received, everything paled in the face of the revolution that arrived in the 1990s when DNA testing became feasible and affordable in many cases. (20) Once limited to such imperfect techniques as serology testing or hair comparison analysis, (21) law enforcement officials found that they could test biological evidence for common genetic links between perpetrators and potential suspects, permitting results that were infinitely more accurate. Innocent defendants also recognized the potential of DNA testing to clear them even after conviction if biological evidence from the crime scene had been retained. In what appeared to be an avalanche of cases over the next decade, advocates have managed to exonerate over 250 innocent persons of crimes they had not committed, including several defendants who had been on death row. (22) Even more individuals have been exonerated in this period in cases not involving DNA testing. (23)

   These cases rightly drew media attention to the frailties of the criminal justice system and, perhaps more importantly, revealed serious problems in everyday police work. In 1996, the National Institute of Justice released a report noting that in "every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI ... the primary suspect has been excluded by DNA testing." (24) Put another way, among rape cases referred to the FBI for DNA testing, law enforcement officers had been wrong one out of every four times in naming an initial suspect.

   The advent of DNA testing not only generated more attention for, and research about, wrongful convictions, but it also seemed to have pushed academicians from "pure" research to research/advocacy. Here, the influence of Barry Scheck and Peter Neufeld cannot be underestimated. Two former legal aid attorneys, the pair founded the Innocence Project in 1992 at the Benjamin N. Cardozo School of Law. Today, the Innocence Project (IP) is a non-profit legal clinic that "handles cases where postconviction DNA testing of evidence can yield conclusive proof of innocence. As a clinic, students handle the case work while supervised by a team of attorneys and clinic staff." (25) The IP has led successful efforts to exonerate hundreds of innocent defendants. It also has spawned the creation of regional innocence projects and legal clinics at law schools around the country. Among the most famous is Northwestern University's Center on Wrongful Conviction and Medill Innocence Project, at which law and journalism professors, along with their students and professional journalists, were the catalysts for a statewide investigation into wrongful convictions in Illinois. In an unprecedented move in 2000, then-Governor George Ryan commuted all death sentences and imposed a moratorium on further executions until a special commission and the General Assembly addressed the several problems in investigations and prosecutions that had led to more convicted murderers released from prison upon questions of their guilt than actually executed over a twenty-two-year period. (26)

   Illinois is not alone; North Carolina, (27) Virginia, (28) and California have also seen innocence commissions, modeled in many ways on the Criminal Case Review Commission (CCRC) in the United Kingdom and the Royal...