Wrongful Convictions: Not Just an American Phenomenon?: an Investigation Into the Causes of Wrongful Convictions in the United States, Germany, Italy, and Japan

• Jurisdiction: United States,Federal
• Citation: Vol. 34 No. 3
• Publication year: 2020
• topic: Criminal Law

Wrongful Convictions: Not Just an American Phenomenon?: An Investigation Into the Causes of Wrongful Convictions in the United States, Germany, Italy, and Japan

Erin Schapiro

WRONGFUL CONVICTIONS: NOT JUST AN AMERICAN PHENOMENON?: AN INVESTIGATION INTO THE CAUSES OF WRONGFUL CONVICTIONS IN THE UNITED STATES, GERMANY, ITALY, AND JAPAN

Introduction

In a world where wrongful convictions are an unfortunate reality, what criminal justice system best poses the solution to this international problem? Is the adversarial system, the inquisitorial system, or a hybrid system the answer to what may seem like an American phenomenon? Wrongful convictions have received a great amount of publicity in everyday media, but how significant of a problem are wrongful convictions?¹ The wrongful conviction problem is challenging to solve, not only because of the systemic problems that cause wrongful convictions, but also because the scale of the problem is largely unknown.² In the United States, estimates frequently put the range of wrongful convictions between 0.5-5% or more, making "the number of wrongful convictions each year in the thousands to tens of thousands."³

commentators often blame wrongful convictions on unavoidable compromises between finding the truth and other important values such as fundamental rights, democratic participation, efficiency, and finality.⁴ The U.S. adversarial system in particular faces great criticism for its tendency to produce wrongful convictions.⁵ The National Registry of Exonerations in the United States totals the current number of exonerations at 2,372 with a total of more than 20,000 years spent in prison by innocent individuals.⁶ The Innocence Project alone has identified 364 DNA exonerations.⁷ However, wrongful

[Page 898]

convictions are not just an American phenomenon.⁸ All systems are vulnerable to producing wrongful convictions but some systems may be more vulnerable than others.⁹ The purpose of this Comment is to determine which systems, or aspects of a system, are most likely to minimize the wrongful conviction problem.

This Comment first examines the U.S. adversarial system and the causes of wrongful convictions in the U.S. adversarial system. The United States was chosen for examination because of the number of DNA exonerations that have taken place in the United States in recent years, and the extensive research that has been done on the causes of wrongful convictions in the U.S. criminal justice system.¹⁰ This Comment then examines the German inquisitorial system and potential causes of wrongful convictions in the German inquisitorial system. Germany was chosen for examination because it is viewed as a more traditional inquisitorial system that focuses on the "truth."¹¹ This Comment then examines the Italian hybrid system and the potential causes of wrongful convictions in the Italian system. Italy was chosen because of their substantial judicial reform from a traditional inquisitorial system into a hybrid system and because of the highly publicized wrongful conviction of Amanda Knox.¹² This Comment then examines the Japanese hybrid Saiban-in system and the potential cause of wrongful convictions in the Japanese system. Japan was chosen for this Comment because recent reform to the Japanese system is modeled after the U.S. system and because the Japanese system maintains above a 99% conviction rate.¹³ Finally, this Comment proposes that, to prevent wrongful convictions, criminal justice reform must be undertaken to incorporate the positive aspects of the United States, German, Italian, and Japanese systems, while limiting and recognizing the systemic problems that produce wrongful convictions.

I. Defining "Wrongful Conviction"

First, it is important to understand how a "wrongful conviction" is defined. Individuals who have been prosecuted and put in prison may believe that any

[Page 899]

miscarriage of justice leads to a "wrongful conviction."¹⁴ However, the term is narrowly defined by scholars as covering only "the conviction of . . . actually innocent [defendants]."¹⁵ By this definition of "wrongful conviction" the scope is limited to those who are considered to be factually innocent rather than those who may be considered legally innocent.¹⁶ Factual innocence rests, in part, on someone else having committed the crime or in no crime being committed at all.¹⁷ on the other hand, legal innocence, "expand[s] the meaning of wrongful conviction to include erasures of convictions, due process errors, and other types of injustice more broadly."¹⁸ Factual innocence and legal innocence often coexist when a legal malfunction leads to the conviction of a factually innocent person.¹⁹ This Comment examines causes of wrongful convictions that are produced by both factual and legal malfunctions within each system.

II. The United States: An Adversarial System

The U.S. adversarial system consists of the prosecution, the defense, the judge, the jury, and the defendant (or the accused).²⁰ The prosecution is an advocate for the state and has the power to bring charges against a suspect based on probable cause, i.e., when there is a fair probability that this individual committed the crime.²¹ The prosecution is required to put forth evidence beyond a reasonable doubt against the accused to obtain a conviction.²² Jurors have the ultimate task in deciding whether the prosecution has proven the defendant's guilt "beyond a reasonable doubt." The jury is not required, or even encouraged to explain their rationale.²³ The defense is an advocate for the accused who may put forth evidence for the defendant and refute the prosecution's evidence during cross-examination.²⁴ In a U.S. jury trial, the majority of the evidence is live oral testimony by lay or expert witnesses.²⁵ In addition to each side presenting their

[Page 900]

own witnesses, the defense and prosecution are allowed to cross-examine the opposing side's witnesses.²⁶ During a trial in the United States, witnesses and judges play a fairly passive role.²⁷ A witness's sole role is to answer an attorney's questions on direct or cross-examination.²⁸ The witness is not allowed to step outside the bounds of an attorney's questions.²⁹ Attorneys for both sides often rely on this limitation to induce answers that are helpful to their theory of the case, regardless of their substantive truth.³⁰

The judge rules on decisions of law and in most instances controls sentencing.³¹ The judge does not actively participate in the collection of evidence or questioning of witnesses during trial.³² The jury is the ultimate fact-finder and determines the guilt or innocence of the defendant.³³ Jurors are selected through a relatively vigorous voir dire process, in which the prosecution and defense are allowed to question potential jurors and may remove any juror for cause upon approval from the judge, as well as a select number of jurors without cause.³⁴ The stated purpose of voir dire is to be able to find "a fair and impartial jury."³⁵ However, voir dire is often used as a tool by attorneys to choose jurors who may sympathize with their theory of the case, or to eliminate jurors who may sympathize with the other party's theory of the case.³⁶ While jurors are tasked with the ultimate question of guilt, jurors are largely untrusted in the U.S. system.³⁷ As a result, procedural rules in the United States allow both judges and attorneys to withhold evidence from the jury to dissipate any unfair prejudice toward the defendant.³⁸ The defendant can also choose to not testify; jurors are instructed to withhold judgment against the defendant for such a decision.³⁹

[Page 901]

In the U.S. adversarial system, the prosecution and defense go head to head, each telling diametrically opposed "stories" or "theories" about the facts of the case.⁴⁰ The primary focus of the adversarial system is to facilitate a vigorous "war" in which the prosecution and the defense work around procedural barriers rather than focus on finding the "truth."⁴¹

This Comment will now discuss some of the most commonly cited causes of wrongful convictions in the U.S. adversarial system. This analysis will start with eyewitness identification error and false confessions because these two factual errors are major causes of wrongful convictions found frequently in DNA exonerations. The analysis then will move on to other systemic or legal issues that cause wrongful convictions, including: forensic evidence, improper testimony, jailhouse informants, tunnel vision, plea bargaining, and the appellate process.

A. Eyewitness Identification Error

The Innocence Project indicates that the most prevalent cause of wrongful convictions in the United States is eyewitness identification error.⁴² More than 75% of wrongful conviction cases that led to exonerations by DNA evidence involved eyewitness misidentification.⁴³ Eyewitness identification error occurs when a witness to the crime misidentifies—often during a police lineup—the individual who committed the crime.⁴⁴ Errors in eyewitness identification may occur because of "exposure time, amount of light, distance from observer, level of violence, and post-event factors . . . . Misidentification is also more likely when the observer and the observed are of different races."⁴⁵ Other factors that may facilitate eyewitness misidentification are "personal prejudice, expectations based on past experience, and stereotypes."⁴⁶ Police lineup practices that are suggestive or procedurally improper can also impact the witness's ability to properly identify the perpetrator.⁴⁷ When police officers are suggestive,

[Page 902]

individuals may pick the "suspect" and be given positive feedback—thus feeling as though they made the correct choice—despite the actual perpetrator being absent from the lineup.⁴⁸

Eyewitness identification error is particularly problematic in an adversarial jury system because jurors tend to overestimate the value of direct evidence, such as eye witness testimony while...