Author:Acker, James R.

    Justice Sutherland instructed several decades ago that "the twofold aim of [the law] is that guilt shall not escape or innocence suffer." (1) He condemned "improper methods calculated to produce a wrongful conviction," while lauding "every legitimate means to bring about a just one." (2) Few will find reason to quarrel with these sentiments. Justice can miscarry in different ways. Other than the actual perpetrator, "everyone benefits, and no one loses when innocent parties are spared conviction and...the [true offender is] brought to justice." (3) With these modest premises at its core, this article attempts to cast a somewhat different light on the traditional domain of wrongful conviction scholarship and policy. Examining three pre-trial practices that can be critical determinants of guilt or innocence--police investigative policies, eyewitness identification procedures, and the interrogation of crime suspects (4)--it encourages broadening the focus on wrongful convictions to encompass reliable justice, a perspective grounded in the dual objectives of fairly and accurately determining both guilt and innocence. It invokes the metaphorical veil of ignorance to sketch a process designed to facilitate agreement about policies that work an appropriate balance between the objectives of bringing the guilty to justice while sparing the innocent from injustices.

    Criminal justice is rife with the vocabulary and imagery of institutionalized battle. The call to arms is not subtle. War has formally been declared on crime. (5) The criminal code delineates the encampments of allies and enemies, of law-abiding citizens and offenders. (6) The police represent "the foot soldiers of an ordered society" (7) and criminals are their "quarry." (8) The rules of engagement in the courts dictate that prosecutors "may strike hard blows," although not "foul ones." (9) For their part, defense lawyers are to "champion" (10) their clients' cause so that criminal trials do not devolve into "a sacrifice of unarmed prisoners to gladiators." (11) The advocates clash in the "heat-of-battle" conducted within the adversarial system. (12) In criminal cases, "the resources of government are pitted against those of the individual," with much at stake for both sides. (13)

    The adversarial alignments familiar to case-specific prosecution and adjudication can be counterproductive at the level of policy formulation, producing stalemates, unsatisfactory compromises, and outcomes that favor power over reason. (14) Reforms designed to guard against wrongful convictions naturally focus on the objective of protecting the innocent. (15) As such, they risk being construed as serving the exclusive agenda of the defense community. (16) When evaluated through the lens of adversarial justice, strategies promoted by organizations and litigants that aim to minimize wrongful convictions can almost reflexively be resisted as threatening to undermine the objective of holding the guilty accountable. (17) Conversely, staunch defenders of the innocent fall into an analogous trap when they oppose measures designed to ferret out and punish the guilty on the assumption that such initiatives must necessarily weaken safeguards against wrongful convictions. (18)

    The concept of reliable justice capitalizes on a mutuality of interests. (19) Embracing more than avoiding wrongful convictions, it contemplates the accurate determination of both guilt and innocence, consistent with other shared notions of justice. (20) In truth, the diverse stakeholders in criminal justice--law enforcement, prosecutors, the defense bar, crime victims, the accused, and the public at large--have far more in common than whatever differences otherwise separate them. They stand to benefit from a process that allows commonalities of interest to overcome adversarial barriers and facilitates the crafting of policies that reliably and fairly identify criminal offenders while guarding against the arrest, prosecution, conviction, and punishment of the innocent.


    The dual objectives within criminal justice of convicting the guilty and safeguarding the innocent are sometimes in tension, if not conflict. (21) Problems can surface when one goal is unduly subordinated to the other. (22) Plumbing the right balance between "the social disutility of convicting an innocent man...[and] the disutility of acquitting someone who is guilty" will often be controversial. (23) The redoubtable English jurist Sir William Blackstone famously posited that "the law holds, that it is better that ten guilty persons escape than that one innocent suffer." (24) The Blackstone ratio bears the interpretation that an inverse relationship, or a zero-sum trade-off must surely exist between the two unwelcome outcomes. (25) But this need not be the case. (26) In particular, rules that effectively maximize factual reliability are equally capable of discerning innocence and guilt, and thus of serving the twin goals of justice simultaneously and without favor. (27)

    Even so, nettlesome questions remain. For instance, disagreements will arise about which policies will, in fact, promote reliable fact finding, and whether policies thus designed will operate neutrally to identify both the guilty and innocent, without compromising either determination. (28) Concerns will be voiced about whether implementing reforms will be cost-effective and feasible, mindful of resource limitations and competition from a host of other pressing social concerns. (29) Moreover, some outcome trade-offs are inevitable. Criminal justice policies must respect and occasionally prioritize values other than getting at the truth. Examples abound in contexts such as exclusionary rules that help safeguard privacy (30) and other constitutional rights, (31) in the recognition of various evidentiary privileges, (32) and in achieving finality in resolving cases. (33) Opinions will differ about the appropriate calculus for assigning weight to and balancing interests that conflict with finding the truth and holding accountable individuals who violate the law. (34) Nor will choosing between procedures that reduce the risk of committing one kind of error while increasing the risk of committing a countervailing one always be straightforward.

    Insulating decisions from biases that are grounded in self-interest or achieving a pre-ordained result is a starting point for fair-mindedness, although it can be difficult to accomplish in practice. We are skeptical, with good cause, upon learning that studies touted as demonstrating the efficacy and safety of a newly developed drug were conducted by the pharmaceutical company that manufactured it, (35) or that a public opinion poll reporting attitudes about gun ownership and gun control was commissioned by an organization litigating an important Second Amendment case. (36) In the Hobbesian tradition, self-interest is such a dominant motivating force that to avert the civil strife that would prevail in a state of nature, people must cede authority to a powerful, and even despotic sovereign capable of maintaining order. (37) The institutionalized egoism endemic to adversarial justice is similarly at odds with neutral policy formulation. (38) Decisions made within systems of justice are highly consequential, and the parties who make and are affected by them are rarely disinterested in the outcomes. (39) Power imbalances typically characterize the principals' relations. (40) Equitable resolution of the ideological and pragmatic disagreements which arise among stakeholders, as they inevitably will, must overcome these challenges.

    Various strategies are available to dampen the influence of competing vested interests and enhance the potential for evenhanded, principled decision-making. One approach is epitomized by the dilemma confronting two individuals who have inherited a plot of land and seek to divide it in a way that each finds acceptable. (41) A tried and true solution is allowing one to draw the lines that will establish ownership, and giving the other the option of choosing which parcel to claim for his or her own. (42) This process seemingly works well enough when two people's interests are at stake, but it is less clear how three or more parties with divergent interests, as will frequently occur in the criminal justice context, could take advantage of something like it to resolve their differences.

    The British philosopher John Rawls has described a decisionmaking process that is calculated to neutralize self-centered interests, including those entertained by multiple parties. (43) The strategy involves cloaking participants within a metaphorical veil of ignorance. (44) Rawls envisioned this protocol as being useful to enable parties to generate consensus about essential principles of social justice. (45) The process is equally well-suited to encouraging agreement about fair-minded criminal justice policies. Rawls explained:

    The to set up a fair procedure so that any principles agreed to will be just....Somehow we must nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage. Now in order to do this I assume that the parties are situated behind a veil of ignorance. They do not know how the various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations. It is assumed, then, one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like. (46) We thus might imagine a large conference table around which are assembled individuals representing prominent stakeholders in matters of criminal justice: crime victims, the police...

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