Evidentiary Practices and Risks of Wrongful Conviction

To date, the National Registry of Exonerations has documented 2,983 exonerations since it began keeping records in 1989 – or, stated another way, 26,500 years of freedom lost. Wrongful convictions undermine faith in the criminal justice system and exact an enormous social and economic toll on society. Due in part to increased attention by the media, the problem of wrongful convictions has garnered increased political and public attention in recent years and many states have established conviction integrity units to investigate potentially problematic cases. Psychological science has played a key role in explicating many of the factors that elevate risk of wrongful conviction and has formed the basis of several state-level procedural reforms. In this summary, we will discuss how the pressured and emotionally fraught circumstances of the criminal investigation may interact with human psychological factors to increase risk of wrongful conviction. Specifically, we will examine the psychological research base as it pertains to issues related to the integrity and reliability of evidence (e.g., confessions, witness identifications, forensic science) and the misconduct of police and prosecutors.

The expansion of simplified criminal procedures has been important over the last thirty years. While they certainly produce judgments at a reduced cost, recent findings hint at their higher risk of wrongful convictions. This article sheds light on the emergence of penal orders in Germany, first used by the Prussian police as mandate orders. Today, numerous countries apply penal orders to minor offences and impose penalties that have become harsher over time. The procedural shortcuts of penal orders, which made them successful in the first place, entail considerable risks of wrongful convictions. Courts are able to render justice more swiftly, but at what cost? In Germany, convictions are recorded in the Central Criminal Register and exclude convicted persons from work in many fields. This article contends that the procedural shortcuts of penal orders, which allow a preliminary prosecutorial investigation to be rendered as a judicial decision, require additional safeguards to prevent wrongful convictions.

A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court. Commentators have universally condemned this state of affairs. This article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason for their reluctance to embrace rules excluding evidence thought to present unduly high risks of convicting the innocent. The case for reform is rooted in Blackstone’s admonition that the law should be wary of admitting evidence of guilt, preferring the acquittal of the guilty to the conviction of the innocent. It is difficult, however, to construct a Blackstonian case for exclusion of evidence thought unduly likely to produce wrongful convictions. Given our limited knowledge about the error rates that inhere in most types of evidence, Blackstonian reform has no ascertainable stopping point; excluding evidence that poses what is thought to be an undue risk of wrongful conviction could result in the exclusion of virtually all evidence of guilt. To illustrate the point, this article considers an issue on which the lower courts have split—the role of corroborative evidence in assessing the admissibility of an eyewitness’s identification. Although Blackstonian prophylactic rules reject consideration of corroborative evidence, the reliability of most evidence cannot be assessed in isolation. Reliability can usually be assessed only in the context of all pertinent evidence. Thus, totality-of-the-circumstances tests, such as the approach reflected in the Supreme Court’s decisions on eyewitness identification, are about the best we can do. Prophylactic evidentiary rules designed to reduce rates of wrongful conviction turn out to be deeply problematic.

This chapter suggests that understanding the complex role of prosecutors with respect to wrongful convictions can provide important insights into the prosecutor's role. It distinguishes between direct and indirect prosecutorial contributions to wrongful convictions. The chapter provides a taxonomy of regulatory strategies for prosecutors to prevent and correct wrongful convictions. It argues that the optimal approach to addressing the prosecutorial role in wrongful convictions will combine elements of both hard and softer strategies. Using the Canadian experience with wrongful convictions as a case study, the chapter suggests that the use of softer strategies including education, public inquiries and reputational harms can have some success in raising prosecutorial awareness and changing prosecutorial behaviour. At the same time, the Canadian approach can be criticized for not disciplining prosecutors who have played a role in wrongful convictions and for not embracing systemic reforms that may decrease the risk of wrongful convictions but also make prosecutions more difficult.

Wrongful Conviction in Sexual Assault: Stranger Rape, Acquaintance Rape, and Intra-Familial Child Sexual Assaults examines the phenomenon of innocent defendants who are convicted of rape and related sexual offenses. It presents findings that indicate sexual offenses are highly overrepresented among confirmed wrongful convictions. Drawing from Innocence Project and National Registry of Exoneration data and supplemented by social science and historical sources, the investigation explores various processes that led to wrongful conviction, distinguishing the differential risk of wrongful conviction among stranger rape, acquaintance rape, and intra-familial child sexual assault. The book includes reference to established research on false confessions, eyewitness misidentification, erroneous expert and informant testimony, DNA evidence, racial bias, and “manufactured” evidence. The work also introduces new terms and concepts (such as “black box” investigation methods, the stranger rape thesis, the moral outrage–moral correction process, “spontaneous misidentification,” victim status paths, the differential investigation challenge related to capable vs. incapacitated rape victims, and the role of serial sexual offending in wrongful conviction) to clarify and illustrate unique aspects of wrongful conviction in sexual assault.

This chapter explores concepts and models used to describe and explain processes in wrongful criminal conviction, such as “tunnel vision,” “confirmation biases,” “misinformation effects,” and “escalation of commitment.” This chapter also considers the critique of the concept of tunnel vision that has emerged. Also, the chapter draws from several theoretical sources to introduce the notion of wrongful conviction as a consequence of “moral correction,” which results in emotional and cognitive factors that adversely affect the evaluation evidence and contribute to the risk of wrongful conviction. Moral correction is advanced as a broad framework that encompasses the more specific processes, such as tunnel vision.

In this article we rethink the connection between prosecutorial experience and conviction psychology that undergirds much of the academic literature about wrongful convictions. The conviction psychology account of prosecutorial behavior asserts that prosecutorial susceptibility to cognitive biases deepens over time, thereby increasing the risk that prosecutors will become involved in wrongful convictions the longer they stay in the profession. Our interviews with more than 200 state prosecutors call into question the basis for this asserted correlation between prosecutorial experience and risk of misconduct. The prosecutors we met consistently reported that, all else equal, prosecutors tend to become more balanced, rather than more adversarial, over time. Hence, the prosecutors who present the greatest risk of producing a wrongful conviction are those who are either inexperienced or resistant to the normal maturation process. For this reason, we suggest that wrongful conviction researchers and database designers pay closer attention to the variables associated with prosecutorial experience and resistance that might affect the development of prosecutorial maturity and the consequent risk of wrongful convictions.

The irreversible nature of death penalty necessitates an unwavering commitment to justice, especially in the light of the alarming incidence of wrongful convictions. Wrongful conviction in death penalty undermine the integrity of the justice system, revealing its potential for cruelty and inhumanity. Such miscarriages of justice not only violate individual rights but also erode public confidence in legal system. This paper delves into complexities surroundings wrongful convictions and the death penalty from both international and national perspective with a focused analysis of Pakistan judicial history, specifically the trial and execution of Zulfikar Ali Bhutto. Wrongful convictions have devastating consequences as individuals unjustly sentenced to death endure loss of freedom, psychological trauma, and, in some cases, execution. Their families suffer emotional distress and socioeconomic hardships, especially when the convicted person is the primary breadwinner, in this particular way society at large experiences a decline in confidence in the judicial system questioning its fairness and reliability. It concludes with recommendations aimed at reducing the risks of wrongful convictions in death penalty cases.

Iron triangle of the gong jian fa: Lessons from wrongful convictions in capital cases?

This book defines the differing concepts of miscarriages of justice, wrongful convictions and innocence in relation to the presumption of innocence and the rationing of justice. It compares inquisitorial systems, with examples from Europe, South America and Asia to adversarial systems. It contrasts England's focus on the miscarriage of justice and the remedial institutions of the Court of Appeal and the Criminal Cases Review Commission, with the United States and China's narrower focus on proven factual innocence It highlights new laws enacted in India in 2023 that increase the risk of wrongful convictions, and details how the International Criminal Court has taken steps to reduce the risk of false guilty pleas that may have been accepted by previous international criminal courts. The book examines the roles of racist prejudice and gender stereotypes in wrongful convictions. It also examines false guilty pleas such as those in the Post Office scandal, as well as wrongful convictions for crimes that did not happen. This title is also available as open access on Cambridge Core.

In 2016, the Supreme Court of Canada (“SCC”) released its landmark decision in the case of R v Jordan. With the objective of addressing widespread delay within the Canadian justice system, the implications of the ruling were such that the Court set out definitive limits on the length of time in which accused persons must be brought to trial before a stay of proceedings is presumed to be entered. Since the decision, many scholars have emphasized the importance of resolving delay within the justice system to ensure that widespread stays of proceedings are not being entered, whereby the justice system may consequently fall into a state of disrepute. However, an equally important consideration that has not yet been explored concerns the risks that a failure to adequately remedy delay may result in police and Crown rushing to resolve cases within these strict time constraints. To explore this gap within the literature, this paper utilizes wrongful conviction concepts and available data to demonstrate that the current state of delay within the justice system has the potential to contribute to a “rush to justice” mentality among police and Crown. The development of such a mentality is problematic as it has the potential to lead to a wrongful conviction. Considering this elevated risk for wrongful convictions, this paper thus provides a new perspective in underscoring the importance of resolving delays within the justice system in the advent of Jordan

A guilty plea wrongful conviction occurs when an innocent person pleads guilty to a crime that they did not commit. Canada’s main procedural protection against guilty plea wrongful convictions is an inquiry, codified in sections 606(1.1) and (1.2) of the Criminal Code, that courts must conduct before accepting a plea from the accused. This plea inquiry requires that a court be satisfied of three conditions before accepting a guilty plea from an accused: (1) that the plea is voluntary, (2) that the plea is informed, and (3) that the facts support the charge. The goal of this article is to show that sections 606(1.1) and (1.2) offer insufficient protection against false guilty pleas and can be improved by learning from the early common law courts’ approach to plea inquiries. This article argues that when sections 606(1.1) and(1.2) were enacted in 2002, guilty plea wrongful convictions were poorly understood and, as a result, Parliament crystalized a plea inquiry that systematically fails to account for many recently recognized causes of false guilty pleas. However, this article suggests that sections 606(1.1) and (1.2) can be improvedby looking to the early common law, when courts were skeptical of guilty pleas and the risk of wrongful conviction. In particular, this article recommends three ways that sections 606(1.1) and (1.2) can be improved: (1) to conduct a full plea inquiry in every case, (2) to individualize the inquiry to the accused by considering their circumstances and motive for pleading guilty, and (3) to foster a skeptical attitude towards guilty pleas amongst the judiciary. This article further argues that these lessons can, at least in part, be implemented by challenging the constitutionality of sections606(1.1) and (1.2) under section 7 of the Charter.

A growing body of academic literature discusses the problem of wrongful convictions — i.e., convictions of factually innocent defendants for crimes they did not commit. But how often do such miscarriages of justice actually occur? Justice Scalia cited a figure of 0.027% as a possible error rate. But the conventional view in the literature is that, for violent crimes, the error rate is much higher — at least 1%, and perhaps as high as 4% or even more. This Article disputes that conventional wisdom. Based on a careful review of the available empirical literature, it is possible to assemble the component parts of a wrongful conviction rate calculation by looking at error rates at trial, the ratio of wrongful convictions obtained through trials versus plea bargains, and the percentage of cases resolved through pleas. Combining empirically based estimates for each of these three factors, a reasonable (and possibly overstated) calculation of the wrongful conviction rate appears, tentatively, to be somewhere in the range of 0.016%–0.062% — a range that comfortably embraces Justice Scalia’s oftencriticized figure. If this Article’s tentative error-rate range is correct, it means that previous scholarship has significantly overstated the risk of wrongful conviction. Moreover, it is possible to compare the lifetime risk of being wrongfully convicted to the risk of being a victim of a violent crime. The relative risk ratio appears to be about 30,000 to 1. This decidedly skewed ratio suggests that reform measures for protecting the innocent may need to be cautiously assessed to ensure that they do not interfere with the important goal of prosecuting the guilty.

Summary proceedings and especially penal orders have become increasingly relevant in criminal justice systems across Europe. The prosecution holds significant power and convictions cannot guarantee that defendants understand their judgment. This contribution compares laws and empirical data on penal orders in France, Germany and Switzerland, with a focus on the role of the prosecution and the rights of the defence. I argue that while penal orders offer an efficient way of processing minor crimes, they also pose a high risk of erroneous sanctions and wrongful convictions. The contribution concludes that in order to protect the rights of the defence, the balance of power between the prosecution and the defendant needs to be improved by granting a hearing before a judgment is rendered, and by translating the penal order and delivering it in judicial appointments. The findings provide valuable insights into the need for continued reform in the area of summary proceedings.

This chapter focuses on the concentration of rape cases among confirmed wrongful convictions. How stranger rape differs from date and acquaintance rape with regard to the risk of wrongful conviction is presented. Innocence Project and National Registry of Exonerations data are examined as well as case illustrations. The chapter examines the pressures on law enforcement authorities and the role of primary evidence, secondary evidence, black box investigation methods, the continuum of intentionality, and victim status in stranger rape. In addition, a stranger rape thesis is presented to distinguish the unique challenges faced in the investigation of “stranger rape. The moral outrage associated with stranger rape produces a great demand on police for arrests and convictions yet reliable identification of the perpetrator is compromised in stranger rape.