THEORIZING FAILED PROSECUTIONS.

• Author: Gould, Jon B.

INTRODUCTION 330 I. A DEFINITION 332 II. THEORIES FOR FAILED PROSECUTIONS 339 A. Flawed Police Investigation 340 B. Forensic Error 341 C. Official Misconduct 342 D. Charging 343 E. Prosecutor Competence 346 F. Victim and Witness Cooperation 347 G. Victim and Witness Credibility 349 III. CASE DATA 350 A. Methodology 350 B. Analyzing the Case Data 353 IV. DISCUSSION 357 V. LIMITATIONS AND FUTURE RESEARCH 365 CONCLUSION 366 INTRODUCTION

Anyone who studies miscarriages of justice is familiar with Blackstone's famous principle that it is better that ten guilty people go free than one innocent person be convicted. (1) The mathematical asymmetry of the Blackstone Ratio reflects the principle that a fair-functioning criminal justice system should not regularly convict the innocent. But what of the opposite problem, when the guilty go free? Both represent a miscarriage of justice. (2) As Simon points out, "[f]ewer than one-half of felony crimes are ever reported to the police, and only one of every five reported felonies is cleared by an arrest." (3) Society has an interest in catching and holding accountable the guilty. If a guilty defendant escapes conviction because the police or prosecution have violated his or her constitutional rights, the victim undoubtedly suffers an injustice in seeing the perpetrator go unpunished. (4)

Over the last twenty years, the scholarly field of erroneous convictions has skyrocketed, with multiple articles and books exploring the failures that convict the innocent. (5) But, there has been comparatively little attention to the other side of the coin, failed prosecutions, when the criminal justice system falls short in convicting the likely perpetrator. Recently, one of the authors of this Article argued that "it is now time for empirical scholars also to begin to study other sources of error and inaccuracy... in the criminal justice system... erroneous outcomes, not just erroneous convictions." (6) Some scholars refer to this as "false acquittals," (7) but that locates the problem primarily with judges and jurors, who may not appreciate the significance of the evidence offered and, thus, unwittingly acquit a guilty suspect. (8) Others conflate "false prosecutions" with erroneous convictions, thereby constructing a larger category of system failure in which the "police, defense, prosecutors, or court erred to such a degree that [a] conviction could not be sustained." (9)

In this Article, we take up the topic of failed prosecutions, simultaneously seeking to define its breadth and explain its relation to erroneous convictions. We explore potential hypotheses for the existence of failed prosecutions and then compare those theories to a set of failed prosecutions compiled from a moderately-sized district attorney's office. With almost no prior research on failed prosecutions, these empirical data put meat on the theoretical bones of the concept. In the end, we argue that failed prosecutions and erroneous convictions may be seen as different sides of the same miscarriages-of-justice coin. Not only do both reflect significant errors by the criminal justice, but the sources of each also appear to be surprisingly similar.

This Article is divided into five parts. In Part I, we offer a definition of failed prosecutions and explain how our broader construction compares to prior research that largely limits its inquiry to the courtroom or jury box. In Part II, we extrapolate from existing literature on wrongful convictions and justice-system error to offer a matrix of potential hypotheses for failed prosecutions. In Part III, we turn to a set of case data on failed prosecutions initially compiled by a prosecutor's office. Cleaning, coding, and analyzing these cases, we are able to focus the set of potential sources for failed prosecutions. In Part IV, we return to the prior hypotheses to compare these new data with the proffered theories. Finally, in Part V, we address the limitations of our research, outline future possible research, and close by arguing that the sources and nature of erroneous convictions are more similar to failed prosecutions than currently envisioned.

1. A DEFINITION

   In two works, Forst has examined the broad topic of "miscarriages of justice." (10) As he notes, there are least two ways in which the criminal justice system "fails"--whether by convicting the innocent or failing to convict the guilty. (11) While this is sometimes understood by the social scientist's notion of Type 1 and Type 2 error, (12) Forst considers the failure to convict and punish a culpable criminal for the appropriate offense an "error of impunity." (13) We use the term "failed prosecution."

   A two-by-two table helps to illustrate this concept. As Diagram 1 indicates, in two of the four boxes the criminal justice system (or at least the adjudicative phase of the criminal justice process) "works" as intended: convicting the factually guilty and acquitting or dismissing charges against the innocent. By contrast, there is a miscarriage of justice when the factually innocent are convicted or the factually guilty are absolved of responsibility.

   Diagram 1--Miscarriages of Justice Defendant Convicted Defendant Goes Free Factually System Works--Plea Failed Prosecution Guilty or verdict Factually Wrongful Conviction System Works--Dismissal or Acquittal Innocent This is a broader definition of failed prosecution than others have posited. As we explain in the next Part, most prior theorizing, which has focused on "false acquittals," locates error in the decisions of judges or jurors to let the guilty go free. (14) Although the source for acquittals could occur earlier in the criminal justice system--as, for example, from a failure to maintain chain of custody for a biological sample--the terminology of false acquittal, by definition, leaves out cases in which prosecutors or courts dismiss charges against defendants who are likely guilty. Since fewer than five percent of criminal cases are resolved by trial, (15) an exclusive focus on false acquittals also excludes the great bulk of other cases in which mistakes of some kind prevent the conviction of the guilty.

   We propose extending the lens outwards to problems, errors, or failures in the criminal justice system that prevent the conviction of suspects who likely committed a crime. Theoretically, this approach could expand the pathway to a point before a crime is even reported--such as the attitudes, beliefs or fears that discourage a victim from calling law enforcement. Indeed, as Diagram 2 indicates, there are multiple cut-points in the criminal justice system for the study of "failed" cases.

   Diagram 2--Various "Cut-points" For Considering Failed Prosecutions * Level 1: Problems that discourage a victim from reporting the crime * Level 2: Errors that cause the police not to stop, investigate or arrest a guilty suspect * Level 3: Mistakes that convince a prosecutor not to bring charges for crimes committed * Level 4: Errors that lead a prosecutor or judge to dismiss charges against guilty suspects * Level 5: Problems that convince a prosecutor to charge for a lesser or different crime. * Level 6: Conditions that lead judges or jurors to acquit guilty defendants At one end, researchers could focus on problems that prevent cases from reaching the attention of law enforcement or those that dissuade or stop officers from arresting or citing suspects. On the other end of the spectrum, scholars of false acquittals already have examined the decisions of judges or jurors to acquit factually guilty defendants. (16) Our focus in this study will be processes or errors that lie within the knowledge or control of prosecutors, such as failures in police investigations that convince prosecutors to drop charges or those that thwart them from obtaining a conviction that matches the crime committed. It addresses actions by prosecutors themselves that lead them to file the wrong charges, prepare their case inadequately, or pursue the wrong trial strategy, among others. And it covers the actions of judges and juries that thwart prosecutors from obtaining a conviction of a defendant who likely committed the crime.

   We choose this cut-point for two reasons. First, we seek to expand the scholarly focus of failed prosecutions beyond false acquittals. That research essentially sees police and prosecutorial action as extant variables, whereas we already know from erroneous convictions that miscarriages of justice can often be traced to a police officer or prosecutor whose mistake changed the outcome of a case. (17) Second, previous research has established the vital power of prosecutors in steering the outcome of a case. (18) Whether by their charging decisions or plea offers, prosecutors are often said to be the most powerful individuals in the criminal justice process. (19) Hence, to fully appreciate their influence and better understand the errors that hamper their work, we examine cases from the start of arrest or citation.

   Central to the study of failed prosecutions is defining what it means for the "guilty" to go unpunished. It is a central precept of the American justice system that criminal suspects are only held accountable if their guilt can be proven beyond a reasonable doubt. (20) Anything less than that standard of proof and they are presumed innocent by law. (21) Thus, any discussion of failed prosecutions must acknowledge that, at least legally, the suspects in these cases may well be innocent.

   In other publications, scholars have contrasted the concepts of factual and legal innocence, distinguishing those exonerations in which the defendant did not commit the crime from those in which the conviction was overturned because of reasonable doubt or procedural violations. (22) Here, we flip the concepts to suggest that failed prosecutions may involve legal innocence and factual guilt. Or, put another way, but for some error in the investigation, prosecution, or...