Government Misconduct and Convicting the Innocent, The Role of Prosecutors, Police and Other Law Enforcement

Abstract

This report examines the role of official misconduct in the conviction of innocent people. It is based on first 2,400 exonerations listed in the National Registry of Exonerations: cases in which a person who was convicted of a crime was officially and completely cleared based on new evidence of innocence. The Report is limited to misconduct by government officials that contributes to the false convictions of defendants who are later exonerated—misconduct that produces unreliable, misleading or false evidence of guilt, or that conceals, distorts or undercuts true evidence of innocence. The Report organizes the myriad types of misconduct into five general categories, roughly in the chronological order of a criminal case, from initial investigation to conviction: Witness Tampering; Misconduct in Interrogations of Suspects; Fabricating Evidence; Concealing Exculpatory Evidence; Misconduct at Trial. Official misconduct contributed to the false convictions of 54% of defendants who were later exonerated. In general, the rate of misconduct is higher in more severe crimes. Concealing exculpatory evidence—the most common type of misconduct—occurred in 44% of exonerations. Black exonerees were slightly more likely than whites to have been victims of misconduct (57% to 52%), but this gap is much larger among exonerations for murder (78% to 64%)—especially those with death sentences (87% to 68%)—and for drug crimes (47% to 22%). Police officers committed misconduct in 35% of cases. They were responsible for most of the witness tampering, misconduct in interrogation, and fabricating evidence—and a great deal of concealing exculpatory evidence and perjury at trial. Prosecutors committed misconduct in 30% of the cases. Prosecutors were responsible for most of the concealing of exculpatory evidence and misconduct at trial, and a substantial amount of witness tampering. Forensic examiners committed misconduct in 3% of exonerations, and child welfare workers in 2%. Disciplinary actions against officials who committed misconduct were uncommon for all types of officials, and especially so for prosecutors. For most types of misconduct, we have insufficient data to date to identify changes over time. There is, however, strong evidence that a few kinds of misconduct have become less common in the past 20 years: violence and other misconduct in interrogations; abusive questioning of children in child sex abuse cases; and fraud in presenting forensic evidence. On the other hand, the number of federal white-collar exonerations with misconduct by prosecutors has been increasing. We conclude that the main causes of misconduct that contributed to the false convictions of these exonerated defendants were pervasive practices that permit or reward bad behavior, lack of resources to conduct high quality investigations and prosecutions, and ineffective leadership by those in command. We discuss a range of possible remedies, from specific new rules governing investigations to changes in the work culture of law enforcement officers in particular agencies, in counties and states across the country, and in the nation as a whole.