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America’s criminal justice system operates on myths. Ninth U.S. Court of AppealsJudge Alex Kozinski doesn’t use that word in his recently published critique in the Georgetown Law Journal of our criminal process, but he clearly views commonly held but highly questionable beliefs as dangerous.
Indeed, they are.
We often have skewed views of the weight that evidence should be given in a criminal trial. We overvalue some indications of possible guilt while simultaneously assuming, often erroneously, that defendants’ legal rights give them the upper hand. We comfort ourselves by thinking that our justice system is the best in the world, but we never question that assumption.
When we hear of someone who was wrongfully convicted being released from prison, perhaps even from death row, after decades of confinement, we wonder, “How did that happen? We have such a fair system.” Rarely do we receive an answer to that question, and when we do, the explanation is often dismissed as an aberration, or the result of some legal trick or technicality that sets a guilty person free.
As is true when a doctor misses a diagnosis or an auto mechanic fails to fix a rattle, the reasons for erroneous conviction may be numerous and complex. Confronted with complicated and legalistic explanations, we tend to resort to a more “common sense” approach: “He was probably guilty of something.” “We give ‘criminals’ too many rights.” “The police wouldn’t have charged him if he hadn’t done something.” “I’ll bet his lawyer is in good with the judge.”
What we should realize, says Kozinski, is that the American criminal justice system is tilted, but not in favor of the defendant. First, consider some of the ways in which juries, and even prosecutors and judges, place far too much confidence in certain kinds of evidence.
We believe eyewitness testimony. If someone swears the defendant did it, what could be better proof? Actually, we’ve known for decades that eyewitnesses very often make mistakes and misidentify suspects even when they’ve had close contact, as in a robbery or rape. Some of these mistakes are due to the suggestive ways in which identifications are conducted, while others are the result of tricks our minds and memories play.
When a witness says, “He’s the one,” the witness may believe he or she is telling the truth. They’re wrong, but they’re convinced they’re right. And that conviction persuades the jury. Why believe the accused person who swears he didn’t do it? Isn’t that what they all say? Maybe, but eyewitness misidentification is probably the leading cause of wrongful convictions, so sometimes they’re telling the truth.
There are more objective forms of evidence, of course. We all know about forensic evidence from popular television shows. Fingerprints and DNA evidence never lie, right?
Actually, even these very reliable kinds of evidence can be wrong. A skilled fingerprint examiner will usually be able to match a good set of complete prints with another set. But there are two problems: (1) Fingerprint analysis is only as good as the skill and care taken by a trained analyst; and (2) comparisons aren’t made against complete sets of prints, but instead against partial, often smudged, latent prints of perhaps only a single finger.
An Oregon attorney was accused by the FBI of being involved in the 2004 Madrid terrorist train bombings on the basis of a latent print match. Further investigation linked that print to someone else, and the FBI admitted it had been mistaken, but only after the innocent attorney had been arrested and the FBI claimed the fingerprint match was “100 percent verified.” The bureau blamed the error on its analyst and not the methodology.
DNA evidence is more reliable, but even that form of proof should be viewed with healthy skepticism. Errors can result from the way samples are collected, contamination in the lab, sloppy work by analysts and even perjury by examiners.
Sadly, cases of DNA lab workers and analysts fabricating results have come to light with alarming frequency.
Good forensic work is based on sound scientific principles, but a lot of the evidence that has been used to convict is the product of “junk science.” In one example of how dangerous it can be to rely on “science” to prove guilt, Texas executed Cameron Todd Willingham for the murder of his children by arson. Despite sketchy evidence and Willingham’s insistence that he did not set the fire, “scientific” theories of fire investigation and burn patterns, since discredited, were used by a fire marshal to convince a jury Willingham committed the crime.
So powerful is the impact of forensic evidence on juries that prosecutors now complain television has created an expectation that DNA or other forensic proof will be introduced in every trial. The fact is that in many cases, perhaps most, there is no particularly helpful forensic evidence. Even if there is, counties cannot afford to have it all examined, and the backlogs at many forensic labs mean the evidence, even if it exists, will not be available for trial.
Science is not always the answer, but surely we can rely on confessions and the overwhelming numbers of guilty pleas to resolve all doubt in those cases. It turns out that false confessions rival misidentification as a leading cause of wrongful conviction.
Interrogators have all the advantages; suspects have almost none. Virtually every police interrogation I see portrayed on a television show includes violations of the rights of the suspect. It isn’t that we’re beating suspects until they confess. Rather, it is the psychological pressures brought on by implied (and sometimes express) threats and promises, sleep deprivation, incommunicado questioning, and preying on the fears and inexperience of the suspect that result in a false admission.
Police investigators receive training in the use of psychological tools to pry confessions from reticent suspects. No suspect has been trained in how to resist these pressures.
Even a guilty plea may not be indicative of guilt. Why would anyone plead guilty to a crime he didn’t commit? There are many reasons. Some plead guilty to avoid being charged with a more serious crime they also didn’t commit. Others do so to keep from sitting in jail for months, waiting to go to trial, because they can’t make bail.
Many people pleading guilty are not guilty of the crime with which they are charged. They may be innocent, or they may be not guilty, or both. In any case, they should not suffer the consequences of a conviction that is unsupported by law and fact.
It is naïve to believe the state is disadvantaged by its burden of proving a case beyond a reasonable doubt or to think that the guilty are going free at an alarming rate. As Kozinski argues, there is good evidence that we are over-criminalizing and over-punishing.
Kidding ourselves about the presumption of innocence only prevents us from finding better ways to investigate and prosecute crime more fairly. It may be impossible to perfect the criminal justice system, but thoughtful reforms must be undertaken to make it better than it is.
Author:
Gerald S. Reamey is a professor at the St. Mary’s University School of Law and an expert in criminal law and procedure.
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