'Than that one innocent suffer': evaluating state safeguards against wrongful convictions.

• Author: Norris, Robert J.

ABSTRACT

This article collects and describes the legislative and other binding policy directives in effect in each of the fifty states that function as safeguards in the following areas against the arrest, prosecution, and conviction of innocent persons: (1) eyewitness identification; (2) forensics; (3) interrogation and confessions; (4) informant testimony; and (5) forming an Innocence Commission. It then assesses the individual states' measures of commitment to Blackstone's expressed intolerance for allowing the innocent to suffer, evaluating their respective efforts against a checklist of prescribed reforms.

1. INTRODUCTION

   In the mid-eighteenth century, William Blackstone famously stated that "it is better that ten guilty persons escape than that one innocent suffer." (1) Today, approximately two hundred and fifty years later, Blackstone's 10-to-1 ratio is often revisited, as represented by this special volume. (2) The United States and other nations are currently experiencing an Age of Innocence. The number of identified, innocent persons who were wrongfully convicted of crimes continues to increase. At the time of this writing, the Innocence Project has identified two hundred and seventy-two men and women who have been exonerated in this country since 1989 by post-conviction DNA evidence. (3) The Innocence Project only takes on cases in which DNA evidence is available for testing, estimated to represent just ten percent of criminal convictions. (4) In addition, more than ninety percent of the exonerations reported by the Innocence Project involve defendants who chose to stand trial. (5) In contrast, more than ninety percent of convictions nationally are the result of guilty pleas. (6) It is notoriously difficult to "right" a "wrong" guilty plea. (7) For these reasons and many others, scholars studying wrongful convictions posit that the number of identified innocents is the mere tip of the iceberg. (8) Although the precise size of the iceberg is contentiously debated, (9) there are compelling reasons to believe it is large enough to sink the Titanic.

   Blackstone's stated ratio, and the balancing of interests it envisions, remains as compelling today as when it was first articulated. It is easy to give lip service to the principle that innocent persons should not be punished for crimes they did not commit, even at the cost of guilty parties occasionally going free--whether the precise trade-off is one to ten, one to a hundred, or simply one too "many" (10)--in light of the mounting evidence regarding the incidence of wrongful convictions. There should be no less hesitation in converting the stated principle into policy, embodied by meaningful criminal justice reforms designed to protect the innocent against wrongful conviction. Yet, in practice, the states have largely shirked responsibility in enacting safeguards against wrongful convictions that have long been identified and are readily available. Ironically, the Blackstone ratio is, for the most part irrelevant, to the states' general lassitude in enacting meaningful reforms because, with scant exception, the proposed reforms would entail no trade-offs whatsoever; they would simultaneously guard against the innocent being convicted and help ensure that the guilty do not go free.

   Our purpose here is a simple one, but to our knowledge, one that heretofore has not been accomplished. We comprehensively describe and analyze current state policy initiatives in several areas relevant to the prevention of wrongful convictions. In doing so, we note how many and which states have enacted reform measures, when those polices were adopted, and describe the content of those reforms. In the appendix, we report the performance of the individual states on a checklist of enacted reforms.

   We focus on five areas of importance to wrongful convictions. Four areas concern the prevention of investigation and trial errors: eyewitness misidentifications; forensic science oversight; police interrogations and false confessions; and the use of criminal informants. One area is more general: the establishment of Innocence Commissions. Two of these areas--eyewitness misidentifications and false confessions--have been well researched; indeed, much of the research predates the exoneration explosion that began in the late 1980s. These two topics have been the focus of scientific consensus papers endorsed by the American Psychology-Law Society. (11) The other two specific areas--forensic science oversight and the use of informants--have received less research attention but nevertheless have been focal points of suggested policy changes. For each of the five areas addressed, we describe the issue then examine the recommendations that have been introduced either by researchers or policymakers, and review enacted state policies. In Section VII, we analyze how current state policies do and do not conform to recommended reform measures, and we offer suggestions about future reform efforts and future research directions. We end with brief concluding observations.

   We note some initial caveats. Although many states have enacted no reform measures in any of the areas we address, others have policies that predate the era of DNA-based exonerations, and others still have established policies in direct response to exonerations that have occurred within their jurisdiction. Of importance, we cannot provide insight into how the policies that exist are implemented and enforced. In addition, our focus is solely on the state level. It is known, for example, that police interrogations are recorded in more than 600 local and county jurisdictions yet only 19 states have some level of statewide recording requirement. (12) Finally, several other factors are commonly connected to wrongful convictions that we do not consider, including prosecutorial misconduct, ineffective assistance of counsel, post-conviction access to DNA-testing, and compensation for exonerated individuals. (13) Examining how states do and do not address those issues will be important next steps to gaining a comprehensive understanding of wrongful conviction policies.

2. EYEWITNESS IDENTIFICATION

   1. The Issue

      Evidence suggests that mistaken eyewitness identification is the leading cause of wrongful convictions. (14) This finding is not new, dating at least as far back as 1932 and the work of Edwin Borchard. In his groundbreaking book, Convicting the Innocent, Borchard reported that identification errors were present in just under half of the sixty-five cases of wrongful conviction that he examined. (15) More recent studies have echoed Borchard's finding. Samuel Gross and his colleagues found erroneous eyewitness identifications in 219 of the 340 (64%) wrongful convictions they identified as having occurred between 1989 and 2003, including almost 90% of the rape cases. (16) Misidentifications contributed to the convictions in approximately three-fourths (76%) of the first 250 DNA exonerations, (17) and about one-half of death row exonerations. (18)

      In addition to being the most common factor contributing to wrongful convictions, mistaken eyewitness identification is among the most extensively researched topics. Psychologists have studied many aspects of the process of perception, retention, and retrieval of information that can affect the reliability of identifications, including the varying capabilities of different types of witnesses, (19) factors that influence memory, (20) and the effects of post-identification events on eyewitness confidence and accuracy. (21) In the late 1990s, the American Psychology-Law Division of the American Psychological Association assembled a subcommittee to conduct an extensive review of the scientific evidence related to best practices and procedures for identifications and to offer corresponding recommendations. (22) Among the themes highlighted by that subcommittee were that the procedures employed can influence the likelihood of witnesses' making their identifications based on "relative judgments" (i.e., which of the displayed suspects looks most similar to the perpetrator) as opposed to an "absolute judgment" (i.e., whether any of the displayed suspects matches the witnesses' recollection of the perpetrator); how a useful analogy can be drawn between identifications and experimental procedures; and that witnesses' confidence in their identifications is malleable in response to feedback and other cues received during or after the identification procedures. (23)

      Research evidence suggests that when witnesses view a lineup or photo spread in which all of the suspects are displayed simultaneously, they have a tendency to identify the person who in their estimation looks most like the culprit. This process is known as making a relative judgment. (24) The threat to reliability, of course, is that the true culprit may not be present. (25) As Wells and his colleagues have pointed out, "there will always be someone who looks more like the culprit than [the others]." (26) Reliance on simultaneous presentations may increase the likelihood of erroneous positive identifications in the absence of the true culprit. (27) The tendency of witnesses to make a relative identification judgment may be exacerbated if they assume that the perpetrator is in the lineup and feel as though they are expected to make a positive identification. (28)

      Research has also helped to shed light on the relationship between the accuracy of an identification and the degree of confidence a witness expresses in his or her choice. This issue is important not only because of the Supreme Court's reliance on a witness's confidence as one of the factors governing the admissibility of contested identifications (29) but also because fact-finders tend to place greater value on identifications made by witnesses who are confident in their opinions. Researchers have examined several aspects of witness confidence. (30) Studies have found that...