wrongful convictions: causes and remedies

Wrongful Convictions

Running head: WRONGFUL CONVICTIONS

Wrongful Convictions: Causes and Remedies

Sally J. Studnar

Boise State University

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Abstract

Every year innocent people are handed prison sentences for crimes they did not commit.

No statistics are kept by any Criminal Justice Department on the number of wrongful

convictions but research has estimated 5% of the cases tried annually result in a false

conviction. This report will include various reasons behind wrongful convictions, such as

misidentification, false confessions, bad forensics, lack of DNA testing, jailhouse

confessions, and coercion. As well, a number of ideas will be discussed as possible

solutions to help lower the number of false convictions that are handed down to the

innocent annually.

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Wrongful Convictions: Causes and Remedies

Introduction

In July, 1979, a man by the name of Gary Dotson was convicted of aggravated

kidnapping and rape (Innocence Project, 2007). At trial, the prosecution’s evidence

included a composite sketch of the assailant prepared by police with assistance from the

victim as well as eye-witness identification by the victim of Mr. Dotson from a police

mug book and lineup. As well, blood evidence of groups A and B were found in semen

on the victim’s undergarments. Despite the findings of type A blood, that should have

excluded him, a forensic analyst testified that both the victim and Dotson had blood type

B, stating Dotson could have been the source of the semen. The analyst also testified that

pubic hair removed from the undergarments was ‘similar’ to Dotson’s. This testimony

was also improper due to inadequate empirical data on the frequency of various class

characteristics in human hair making statements about certain hairs being ‘similar’

intrinsically prejudicial and lacking probative value (Microscopy of Hair, 2004, p. 13).

Found guilty, Dotson’s sentence was 25-50 years.

The victim in this case recanted her testimony in March of 1985 claiming she made up

the rape to hide a sexual encounter with her boyfriend. The trial judge refused Dotson’s

request for a new trial on grounds that the complainant’s original testimony was more

believable than the recantation.

In 1988, at the insistence of Dotson’s new attorney, Deoxyribonucleic Acid (DNA)

tests not available at the time of trial were performed on a semen sample. The tests

revealed the semen was from the victim’s boyfriend. On August 14, 1989, Gary Dotson

had his conviction overturned. He had served eight years.

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In North Carolina, two incidents of rape occurred in July of 1984. Ronald Cotton was

arrested for both rapes in August of the same year even though his alibi was supported by

family members. The prosecution based its case on a photo and police lineup

identification by one of the victims. The jury was not allowed to hear evidence that the

second victim did not pick Cotton out from the same lineup. Convicted of both counts of

rape, Mr. Cotton was sentenced to life plus 54 years (Innocence Project, 2007).

On appeal, Cotton was granted a retrial based on statements from an inmate

incarcerated at the same facility Cotton was being held at. This inmate bragged that he

had committed the crimes Cotton was convicted of. Although both inmates were present

at the new trial, the victim still identified Cotton as her assailant.

In 1994, a motion was filed for DNA testing of vaginal swabs by Cottons’ two new

lawyers. Results of the tests showed no match to Cotton. The evidence was plugged into

the State Bureau of Investigation’s DNA data base and showed a match with the convict

who had earlier confessed to the crime. On June 30, 1995, Ronald Cotton was cleared of

all charges. He had served ten and a half years of his sentence.

One major factor has been the driving force behind the recent attraction to the topic of

wrongful conviction; the highly-publicized exonerations of individuals serving long

prison sentences through the use of DNA evidence. Wrongful conviction can be defined

several ways. Broad definitions include cases where charges have been dropped without

retrial or convictions being overturned in court and the defendant found not guilty. This

study focuses on a narrower definition; “Convicted innocents….are people who have

been arrested on criminal charges…who have either pleaded guilty to the charge or have

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been tried and found guilty: and who, notwithstanding plea or verdict, are in fact

innocent” (Huff, Rattner, and Sagarin, 1996, p. 10).

There are numerous reasons why wrongful convictions are a serious problem, but the

two most compelling are the implications of justice and the implications for public safety

(Wrongful Conviction and Public Policy, 2002). Every year, in this country, innocent

people are handed prison sentences for crimes they did not commit. These cases involve

people from every socioeconomic strata; “the penniless and friendless to the well-to-do

and socially prominent” (Rattner, 1988, p. 285). Although no statistic is kept by any

Criminal Justice Department on the number of wrongful convictions, it is estimated by

Rattner (1988) that approximately 5% of the cases tried annually have resulted in an

innocent person being found guilty. That percentage can be equivalent to 14,000 false

convictions per year.

There are numerous inferences on why this miscarriage of justice exists in our court

system (Loewry, 2007). This report will focus its research on the causes behind wrongful

convictions which vary and may include:

Eye-witness misidentification

Improper handling of evidence, i.e. bad forensics

Lack of DNA testing

False confessions by suspects, both voluntary and coerced

Informants, Cooperators, and Jailhouse Snitches

Coercion or over zealousness by court officials

As well, this report will examine possible remedies and systematic changes that could

reduce the conviction rate of innocent people.

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Literature Review

A review of past research has shown that the most prominent cause of wrongful

convictions nationwide is eye-witness misidentification. It has a staggering percentage

rate of playing some type of role in 75% of the cases that have been overturned through

DNA testing (Actual Innocence, 2000, p. 45).

A study by Barry Scheck (2008) on forensic evidence revealed that not more than

20% of felony cases involve biological evidence (Scheck, 2008, p. 4). Although this

figure may seem low, the power of proper handing and testing of biological evidence can

offer invaluable hope to an innocent suspect. An interesting observation in this study

points out the need to look at how suspects get incarcerated in the first place. As well,

Scheck (2008) stated that the lack of post-conviction DNA testing has resulted in

countless individuals being sentenced for crimes they did not commit, a statistic

impossible to measure.

Other variables that lead to wrongful convictions are false statements and confessions.

These can be extracted from suspects through questionable methods (Leo, Ofshe, 1998)

or gathered from jailhouse snitches, informants, or cooperators. Research by Leo and

Ofshe (1998) has shown that these statements and confessions have been responsible for

some wrongful convictions. Many people believe the use of such evidence has corrupted

our criminal justice system while others, mostly prosecutors, believe that cases where

such evidence is used are a deviation from the typical process.

I. Eye-witness Misidentification

Most witness misidentifications were made in good faith with the witness attempting

to help officials find the real perpetrator of a crime, although this explanation does not

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examine the conditions under which these identifications were made. Some of the

conditions that need to be taken into account are whether a photo was shown to a victim

by the police before a lineup, whether the identification by the witness was hesitant, or if

the victim was urged to be positive when testifying. Additionally, was the identification

from the same race; was there prejudice, how much distance and duration of interaction

was there between victim and suspect prior to identification and what were the viewing

conditions; darkness or day light? With so many factors involved, it should be obvious to

some why eye-witness misidentification can happen so frequently.

Moreover, the testimony of an eyewitness relies on how accurate their memory of an

event actually is. So how does memory work? According to scientists, a memory is

formed when neurons link together and form a new series of circuits or connections. This

process actually changes the contact between the cells and it is during this process that

the memory is stored (Creating False Memories, 1997, p. 70). Experiences that happened

a few minutes ago, as well as information several decades old, are called long-term

memories. Stored in mental “drawers’ somewhere in the brain, these long-term memories

can hold as many as 1 quadrillion (1 million billion) separate bits of information

(Ketcham, 1991, p. 3). Densely packed and obviously extremely crowded, these

‘drawers’ that hold memories are consistently being emptied, the memories are scattered

around, and then packed back into place without order of importance. When this occurs,

new bits of information can be added to a long-term memory and in essence, the old

memory may be removed, replaced, or discarded into a corner. As details are added or

eliminated, the facts are gradually changed and can bear little resemblance to the original

event.

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With this knowledge, scientists believe that in addition to memories fading, they can

also grow. Yet, an eye-witness is not aware of the brain’s distortion of past experiences.

As the memory fades, a person becomes convinced that what they saw or said, although a

blending of fact and fiction, in their mind is completely truthful. In a sense, Ketcham

(1991) explains that this makes us faultless victims of our mind’s operations and since

memory is so malleable and subject to distortions, the accuracy of a victim’s memory is

questionable, especially when you factor in any trauma from an event.

Forensic Psychologist Elizabeth Loftus, who specializes in memory research,

conducted a study on visual memory through facial studies. The study exposed

individuals to a series of faces, one at a time, for three second intervals. A brief period of

five to six minutes was allowed to pass and then a new series of faces were presented.

Individuals were then shown two faces side by side and asked to select the face they saw

from the original series. On occasion, slightly altered versions of some of the original

faces were presented next to a face not shown in the first series. All test subjects chose

the altered version. Then, in a later portion of the experiment, the altered face was paired

up with the original face the alteration was derived from. Results from the study showed

that 50% of the testers chose the altered face instead of the original face (Imagination

Inflation, 1996, p. 214).

During a traumatic event, such as a rape or assault, a person does not forget the event,

but details don’t get encoded. Fear and stress reduce the ability to acquire detailed

memories. Furthermore, forming a good memory is not a priority of the brain at this

point, rather the production of fight or flight tendencies and survival instincts are the

main focus of the moment. But precise memory becomes crucial in the event of a crime

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and small details assume enormous importance. Civil and criminal cases often rely on

trivial, subtle details and a pointing finger of blame can have a powerful hold on a jury.

Anyone can be convicted of a crime he or she did not commit based solely on the

evidence of a witness who can convince a jury that what they saw in their memory is

correct. People, as well as jurors, believe that a memory is a fact and that is what makes

eye-witness testimony so powerful and convincing. Since the accuracy of visual memory

plays such a key role in a victim’s ability to select the right suspect from a photo or police

line-up, what steps can be taken to ensure mistakes are not made?

Misidentifications are sometimes brought about by common police procedures. When

the police do have a suspect in mind, the witness in the case is shown an array of photos.

An actual line-up is used only if identification from the photos is made. This procedure is

called “photo-biased lineup” and chances of someone misidentifying a suspect rise

dramatically when this procedure is used (Ketcham, 1991, p. 4).

As well, the process of showing witnesses numerous photos at one time can cause bias

when trying to identify a suspect. It is easy for a witness to pick out a person who

resembles the suspect when they can compare faces side by side. The actual suspect may

not even be part of the group of photos and if this information is not provided to the

witness, they may feel compelled to choose someone anyway. A practice that should be

put into place to prevent misidentification is showing a witness photographs one at a time

and not in groups. The suspect may or may not be included in the photos and this

information should be told to the witness. By viewing each picture individually, the

witness does not have other ‘suspects’ to compare faces against. Since misidentifications

are often blamed on the fact that the real criminal bears a close resemblance to the

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wrongly identified person, using this method can significantly reduce the chances of

making this catastrophic mistake (Where Justice Goes Wrong, 1983, p. 12S).

Once photo identification is made, most police departments will then conduct a line-

up. Unfortunately, too often the line-up consists of the suspect surrounded by individuals

who bear no resemblance to him whatsoever. How hard would it be to pick out a tall

suspect if he were surrounded by people three to five inches shorter than him? Or, what

would the difficulty be in choosing an African American suspect who was included in a

pool of all Caucasian’s? This practice is all too common in our judicial system (Where

Justice Goes Wrong, 1983, p. 12V).

The correct procedure would be to produce a line-up consisting of individuals who

favor each other. If the true perpetrator is among the group, the witness should have no

problem picking them out, especially after a photo identification of the individual. If they

are still unsure, they should not be persuaded by officials in any manner to make a

choice. After all, misidentification of an individual can be a matter of life or death.

Lastly, Defense attorneys can also ask judges to read a list of instructions to the jury

on the dangers of eye-witness identification. Another possible solution in eye-witness

cases is expert testimony. A psychologist can give a detailed explanation to the jury on

how human memory works and show how experimental findings relate to the case in

question.

IV. Mishandled/Bad Forensic Evidence

Bad forensics can come in numerous forms. A fingerprint expert may claim a match

from a print that doesn’t have enough points to truly compare or an expert can either

inadvertently or sometimes intentionally use the wrong print. Similarly, samples can be

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analyzed improperly, taken incorrectly, or DNA can be mishandled. Schwinghammer

reminds us that, “forensic evidence of any nature is only as good as the expert collecting

the samples or performing the tests” (265).

There are two sides to forensic problems: deliberate and inadvertent error. One can

only hope that deliberate error is rare and when it is uncovered, discipline should be fast

and severe. Besides deliberate dishonesty, an expert might also shade the truth about

certain evidence. For example, if an expert believes a defendant is guilty they may claim

that a partial identification of a fingerprint is a true match and this can lead to a wrongful

conviction.

Approximately 20% of felony cases involve biological evidence. Of that percentage, a

primary suspect can be excluded in 26% of the cases if post DNA testing is performed

accurately (Scheck, 2008, p. 12). To perform a proper test on evidence, it must be

handled with extreme care to prevent contamination. After reviewing forensic procedures

leading up to wrongful convictions, statistics show that 75% of the time the forensic

evidence in the case was either lost or destroyed (Scheck, 2008, p. 12).

In the cases of inadvertent or accidental forensics, the defense counsel must present

their own forensics experts to counter the prosecutions claims. Unfortunately, this is

easier said than done. Forensic experts are not cheap, and many defendants cannot afford

to pay for their own expert witnesses, yet the cost of not doing this could be even more

convictions of innocent people.

Guidelines that are strictly enforced by forensic labs are needed in every state as a

possible solution to the mishandling of evidence. Judicial efforts could also be made to

ensure that police personal are properly trained for collection and handling of forensic

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evidence. These efforts, though they may seem simple, could vastly reduce the

percentage of innocent people being sent to prison annually on wrongful convictions.

IV. Lack of DNA Testing

When considering the reasons behind a lack of DNA testing, one must first take into

account whether the test was available when a certain case came to trial. DNA printing

made its debut in the United States in 1987 (Pearsall, 1999). Resembling a genetic

blueprint, a technician uses laboratory procedures to break up DNA extracted from cells

in a tissue sample such as blood, skin, or hair. Once broken into segments, a visual image

of the segments creates an individual pattern containing certain characteristics. The DNA

print can be used to identify or clear suspects by comparing any DNA evidence found at a

crime scene.

To date, there have been 232 people exonerated by DNA testing nationwide in 33

states (Innocence Project, 2009). 102 of those cases had conviction years prior to 1987.

Had DNA testing been available, 102 innocent people would not have had to spend any

time in prison. In these cases, the lack of science cannot be blamed, yet these

exonerations create a window into the criminal justice system to see what is being done

right as well as where the blame lies.

The number of DNA exonerations has increased from one or two a year in 1989 to

1991, to an average of six a year from 1992 through 1995, to an average of twenty a year

since 2000 (Exonerations in the United States, 2005). So why is DNA testing not an

automatic procedure when there is biological evidence available to test? That question

has been posed by many individuals serving time for crimes in which they could have

been excluded had the courts allowed the testing. Lack of testing in these cases were a

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result of either insufficient funds, poor representation of council, a claimed lack of

evidence, or the magistrate deciding testing wasn’t necessary (Pearsall, 1999).

The bottom line is rather profound; every time an innocent person is convicted, it

means the real perpetrator is still at large. Not only is an injustice to the innocent person

occurring but an even greater injustice is being put upon every law abiding citizen in the

country; the risk of being a victim of the real perpetrator.

IV. False Confessions by Suspects: Voluntary and Coerced

In 1989, a female jogging through Central Park in New York City was raped, beaten,

and left for dead. She survived, but to this day she is completely amnesic to the incident.

The crime scene, although bloody, showed no physical traces of five African and

Hispanic American boys, 14 to 16 years old, who were convicted of the act and sent to

prison. The boys were prosecuted and convicted based on police-induced confessions.

Thirteen years later, Matias Reyes, came forward and confessed to the rape. He was in

prison for three other rapes and a murder committed after the jogger attack. The

Manhattan district attorney’s office reinvestigated the case. DNA testing on semen

samples recovered from the victim’s body, which had conclusively excluded the boys as

donors, belonged to Reyes (On the Psychology of Confessions, 2005). In December

2002, the boy’s convictions were vacated.

This case and other exonerations highlight the problem of wrongful convictions

containing false confessions. Research shows that 15% to 25% of these convictions

contain false confessions in evidence (On the Psychology of Confessions, 2005). This

research also suggests that actual innocence does not necessarily protect people. Since

people naively believe in their innocence, they may waive their rights and subject

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themselves to highly confrontation interrogations. Innocence can literally put innocent

people at risk.

The history of American police interrogation reveals that in the 1920s and 1930s a

method referred to as the third degree was rampant (The Impact of Miranda Revisited,

1996). This method included the infliction of physical pain or psychological duress or

coercion during the interrogation of suspects. Since the Miranda decision in the 1960s,

the third degree in America has been episodic making it the exception, not the rule. The

Los Angeles Police Department scandal of the Ramparts Department is probably the most

well known area in the United States in recent years where the third degree came into

play. This scandal brought to light over 100 cases where innocent people were framed,

beaten, or wrongly convicted because of perjury by police officers, many by plea bargain.

It is easy to understand how, threats of incarceration, physical violence, or psychological

duress could essentially lead to a false confession.

The Fourteenth Amendment due process test seeks to exclude confessions if the will

of the suspect is pressured (The Impact of Miranda Revisited, 1996). This involves an

inquiry into both the tactics the police use and whether these tactics can be considered

coercive. A background check of the suspect’s personality is also performed to determine

how vulnerable to persuasion they may tend to be.

Confessions are exceptionally damning. There are very few jurors who will believe

that an innocent person would falsely implicate themselves. A skillful questioner can

sometimes convince a suspect, especially someone young, not too intelligent, or easily

led, that they did indeed commit the crime. The best way to prevent or at least minimize

this harm is to require all police departments to videotape the confession process. If there

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is any pressure on a defendant, the defense attorney and perhaps the jury will see it. This

certainly won’t eliminate false confessions that lead to convictions, but it can decrease

the damage. This mandatory requirement became a law in Alaska in 1985 and Minnesota

in 1994 (The Impact of Miranda Revisited, 1996).

An additional policy change that could aid in the solution of false confessions would

be pre-selection interrogation procedures. Today’s police are trained in pseudoscientific

methods that supposedly teach them how to read somebody’s body language, or the

movement of their eyes to somehow tell them if they are innocent or not. Controlled

studies (On the Psychology of Confessions, 2005) have shown that police officers are no

better at determining if someone is telling the truth or lying than anyone else. We must

retrain police officers so they don’t interrogate someone if they think they are acting the

way only guilty people act.

We also need to educate police officers about false confessions. Kassin (2005) has

asked police investigator confident in their training-based skills at interviewing and

interrogations, if they were concerned about persuasive methods that might influence an

innocent person to confess. The most common answer given was “No, because I do not

interrogate innocent people.” This mindset illustrates the risk of error to those individuals

who are actually innocent.

V. Informants, Cooperators, and Jailhouse Snitches

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wrongful convictions: causes and remedies

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