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American Justice in the Age of Innocence

iUniverse, Inc.

Contents

I. Introduction..............................................................1II. Acknowledgments..........................................................7III. Causes of Wrongful Convictions: Unreliable Evidence.....................9A. Eyewitness Identification.................................................9B. Custodial Interrogation and Confessions...................................77C. Jailhouse Informants......................................................193IV. Improving the Adversary System through Discovery.........................235VI. Creating Avenues to Uncover Actual Innocence.............................269A. Access to DNA Testing: A Texas Case Study.................................269B. The Case for Innocence Commissions........................................353VI. Conclusion...............................................................445

Chapter One

The American criminal justice system is a delicate and intricate systemthat balances the needs of communities across the nation with the rightsof criminal suspects. Understandably, for many years the system's focushas been on guilt: what standard of proof must be met to prove guilt,what may or may not be used to prove guilt, or whether guilt of othercrimes may be used to prove guilt in the instant case. But, due in largepart to the exoneration of over two hundred wrongfully convictedindividuals across the United States, the focus is increasingly shiftingto innocence. In the face of the disturbing realization that the systemhas failed so many, there is a renewed interest in making sure that theinnocent are protected from wrongful conviction and recognition thatexisting safeguards are insufficient to meet this goal.

With this renewed interest in innocence growing in courtroomsand legislatures across the nation, difficult questions emerge. What doesAmerican justice in the age of innocence look like? What proceduralmechanisms can be adopted to ensure the integrity of the system whilepreserving its effectiveness in protecting the community it serves? Whatfactors lead to wrongful convictions, and how can they be avoided?What procedures could be adopted to provide effective relief to thosewho have been wrongfully convicted? Though there are no easy answersto these questions, the authors in this collection provide insightfularticles collecting research and making suggestions for improvement tothe criminal justice system. This anthology provides information aboutwhat factors cause wrongful convictions, how the adversary system canbe improved through increased discovery, and why creating avenuesto uncover actual innocence is a vital part of this new focus. It isdedicated to providing policymakers with the information needed tomake informed decisions about what American justice in the age ofinnocence should look like.

Though there are multiple causes of wrongful convictions, severalculprits stand out. Eyewitness identifications, custodial interrogationsand confessions, jailhouse informants, and the use of questionableforensic science have all been linked to wrongful convictions. Erroneouseyewitness identifications are linked to approximately three-quarters ofall DNA exonerations. Authors Brian Harrison and Christina M. Griffindescribe the dangers of current identification techniques and suggestchanges to minimize those dangers in the future. Harrison suggestssuch changes as increasing the use of reliable identification procedures(such as double-blind and sequential line-ups), requiring authorities toobtain a confidence statement from the eyewitness at the time of theidentification, and ensuring that all non-suspects in any line-up bearsome resemblance to the eyewitness's previous description of the culprit(rather than resembling the suspect). As a final measure, he recommendsthat any identification that does not follow these guidelines shouldbe excluded from court. Griffin further addresses the "best practices"recommended for reducing erroneous identifications. She addresses theimplementation of these changes at the state level by comparing thedifferent legislative approaches and policy standards used by states. Sheanalyzes the different approaches and suggests what would work best inTexas, thus tailoring a path for reform in Texas, as well as other statesconsidering procedural reforms.

Next, Tanya Broholm and Hillary Valderrama discuss custodialinterrogations and confessions. Custodial interrogations are intended toproduce a true and accurate account of events from suspects, but thereis ample evidence that many of the interrogation procedures currentlyemployed create a danger of false confessions. Once considered a rareoccurrence, the work of innocence projects around the country hasconclusively demonstrated that false confessions happen with somefrequency and are also linked to wrongful convictions. More problematicstill is the fact that jurors accord confession evidence disproportionateweight in delivering their verdicts. Broholm describes several casesinvolving false confessions and concludes that videotaping interrogationsin their entirety is necessary to safeguard the rights of the accused andthe integrity of the criminal justice system. It also gives the judiciarymore reliable evidence to evaluate motions to suppress confessions.Valderrama details various risk factors linked to false confessions. Sheproposes the elimination of several popular interrogation practices(such as minimization, maximization, and the use of falsified evidence),videotaping interrogations in their entirety, and creating proceduralmechanisms to ensure that only reliable confessions are presented tojurors.

The use of jailhouse informants or "snitches" presents yet anotheropportunity for reform. As Matthew Gilliam discusses, due to the factthat such informants are frequently offered substantial reductions intheir sentences in return for their testimony, they have strong incentivesto fabricate confessions. As a result, jailhouse informants are among theleading causes of wrongful convictions in the United States. Gilliamadvances Illinois' legislation regarding the use of jailhouse informantsas a model for other states. He also concludes that rigorous compliancewith the letter and spirit of the mandates of Brady v. Maryland requiresthat prosecutors diligently provide defendants with exculpatoryevidence regarding jailhouse informants. Such information couldinclude the informant's criminal history, any other statements madeby the informant, and whether the informant has ever testified forthe prosecution before in another criminal trial. Establishing clearboundaries for the use of jailhouse informants and giving defensecounsel impeachment evidence regarding the informant ensures thatonly sufficiently reliable testimony is presented to the jury and thatthe jury has adequate information to evaluate the credibility of thattestimony.

After addressing the causes of wrongful convictions, this anthologyshifts its focus to methods for improving the adversary system throughdiscovery. Adequate information regarding the opposing party's case isessential in any litigation, and criminal cases are no exception. Recently,there has been a growing movement to statutorily require prosecutorsto maintain "open file" policies under which they provide the contentsof their files to the defense counsel. However, less...