How the pretrial process contributes to wrongful convictions.

• Author: Leipold, Andrew D.

Wrongful convictions have received a lot of recent attention, and properly so. The use of DNA evidence, coupled with the spectacular work of various innocence projects, has shown that despite all the procedural protections built into the criminal system, juries and judges are sometimes convinced beyond a reasonable doubt of a fact that is false.

The reaction to these wrongful convictions has been multi-layered. Part of the reaction has been a sigh of relief that a miscarriage of justice was discovered, albeit late in the day. Another part--one that has not yet been faced completely--is the gnawing fear that the wrongful convictions we know about are just a small subset of a very large problem. (1) Most of the exonerations to date have been in cases involving murder and rape (2) (where DNA evidence is particularly helpful), but many of the root causes of erroneous convictions are not limited to those crimes. Faulty eyewitness identification, witness perjury, ineffective counsel, and forensic errors can occur in almost any type of case. (3)

A third part of the reaction has been to assign blame. Much of the fault has been laid at the door of police and prosecutors for failure to properly investigate a case, or for relying on questionable or compromised evidence. Prosecutors have hardly helped themselves by stubbornly defending their decisions, including the convictions themselves, in the face of clear proof of error. (4) Less directly but unmistakably, criticism also has been directed at juries, who, among other failings, are thought to put too much faith in scientific evidence and to overestimate witnesses' ability to perceive and remember.

This article offers another candidate to share some of the blame. It suggests that one of the causes of wrongful convictions is the pretrial criminal process, which, even when it is working properly, can distort the gathering and presentation of exculpatory evidence. The article makes its case by walking through several of the steps an accused goes through between the arrest and trial, asking in each instance how the procedural rules themselves can affect the accuracy of the resulting judgment. It shows how these pretrial doctrines have been asked to serve a variety of interests--efficiency, community safety, witness convenience, avoiding perjury-which sometimes are at odds with accuracy, and argues that the cumulative affect of these compromises is to make it significantly harder for an innocent accused to present a defense.

Part I frames the discussion and provides working definitions. Part II looks at the law governing a variety of pre-trial procedures, including pre-trial release, the venue decision, challenges to pretrial delay, joinder rules, and the government's disclosure obligations. This Part tries to show how the doctrinal effort to serve a variety of institutional goals can inadvertently frustrate the innocent defendant's ability to find and present the evidence he needs to undermine the prosecutor's misguided case. Part III looks at the implications of the analysis, arguing that the cumulative effect of the pretrial procedures is practically to ensure a certain number of wrongful convictions. The article concludes with modest recommendations that could reduce, although not eliminate, the risks associated with the current procedures.

1. FRAMING THE ISSUE

   1. Terms and Conditions

      First, some terminology. The phrase "wrongful conviction" and its derivatives will be used throughout the paper to refer to those who did not in fact commit the crime of conviction. It will include people who are both factually and legally innocent of any charge--the bystander who is mistakenly identified as the thief, for example. The phrase also will cover those who are guilty of something, just not the crime of conviction. Some of those who have been exonerated may well have been present at the scene of the crime, and may have even committed some offense, but not the crime charged and not the one on which the judgment rested. (5)

      There are many reasons why innocent people are wrongfully convicted, but some non-exhaustive grouping is possible. Some percentage of defendants are wrongfully convicted because of intentional governmental misconduct. There are an outrageous number of cases where the police plant evidence, the prosecutor withholds facially exculpatory information, or government experts either intentionally or recklessly fabricate evidence to help establish guilt. (6) Other defendants are falsely convicted because of some combination of reckless government behavior and an inadequate legal response--coerced confessions that should have been suppressed but were not are a prime example. (7)

      Other cases involve inadequate work by defense counsel, or even defendants failing to act in their own best interests. (8) And in still other cases, the government is acting "appropriately" in bringing the charge, because the fatal flaw in the case is hidden to nearly everyone involved. The witnesses sound certain about what they observed but are honestly mistaken, for example, or the forensic expert confidently gives her conclusions but the science was bad or the scientist was unexpectedly careless. Perhaps with more time and effort the government would have uncovered the flaw, but sometimes accepting the alternatives to the current defendant's apparent guilt requires more time, resources, and skepticism than most advocates possess. Indeed, one maddening feature of many wrongful convictions is not that the trial system broke down, but that it worked pretty much the way it should--other than convicting the wrong person. (9)

      Importantly, in each of these cases the jury may well have acted rationally in returning a conviction against an innocent person, at least based on the evidence presented. Recognizing that "garbage in" usually means "garbage out," the primary response of reformers has thus been to restrict certain types of evidence that is presented at trial. Proposals to change eyewitness identification procedures, prohibit the use of certain types of forensic testing, limit the use of informants, making it harder to obtain confessions, and instructing juries on the risks of cross racial identification are part of the multi-headed effort to focus and improve the information the jury considers.

      All these proposals can help. But there is another type of remedy, one that is often overlooked because the problem itself is overlooked. The best defense against false evidence that points to guilt is truthful evidence that undermines the prosecutor's case. A positive eyewitness identification can be blunted by alibi witnesses and by others who might have seen the events. Biased witnesses can be undermined by accumulating impeachment evidence, police misconduct might be revealed by previously undiscovered or reluctant witnesses, and bad forensic tests can be rebutted with valid ones. All of this supposes, however, that three conditions are satisfied: (1) the defendant has meaningful access to the "bad" evidence; (2) the defendant knows what evidence he will need to defend himself at trial; and (3) the jury will not be exposed to prejudicial evidence that will distract them from the "good" (i.e., factually accurate) evidence. The task, then, is to look for structural or procedural barriers that might prevent one of these conditions from being satisfied.

   2. Weak Links in the Adversary Process

      There are several potential culprits for why trial evidence can become so distorted that it leads a rational fact finder to wrongly convict. One of the prime suspects is the rules of evidence. To the extent the rules permit the government to introduce information that is unfairly prejudicial or unreliable, or to the extent favorable defense evidence is excluded, the jury might rationally convict despite the defendant's innocence. (10) As a variation on this theme, if courts fail to guide juries in the proper use of evidence, or fail to warn of latent dangers in relying on certain types of evidence, inexperienced juries might mistakenly under--or overvalue that information. This criticism has been at the heart of the warnings about excessive government reliance on eyewitness identifications and jailhouse testimony, for example. (11)

      A second fruitful area to explore is impediments to the gathering of evidence. In theory, deficiencies in the fact-finding efforts of either the government or the defense might skew the trial. A prosecutor who is assisted by overworked, lazy, or ineffective investigative or legal staff might be led to the wrong conclusion about a case, and in turn may lead the government to blindly and wrongly convince a jury of defendant's guilt.

      But while this concern is genuine, it is not really at the core of the concern about procedural or institutional limits on evidence gathering. There are of course constitutional restraints on criminal investigations, but these generally are not the type of restrictions that should lead a prosecutor to draw false conclusions about guilt. To the contrary, in their task to discover the truth about criminal wrongdoing, prosecutors have enormous authority: they have broad investigative jurisdiction, the assistance of professional law enforcement, statutory sanctions to encourage witness cooperation, (12) and the credibility of the sovereign to support their efforts. And while there are undeniable resource and political constraints on prosecutor offices, there is no ethical argument that these limits on evidence gathering should lead to hurried judgments about guilt, rather than to declinations, dismissals, or acquittals.

      The far greater risk in failed evidence gathering falls on the defense side. The obvious problem is that defense counsel are under funded, either because clients cannot afford high fees or because the State dollars to fund criminal defense work are spread too thin. Perhaps defendants are being convicted because defense counsel and their...