Abstract
This article develops a theory of wrongful convictions based on the concept of observational equivalence. Under the model, a wrongful conviction is the end-product of a sequence of observations (triggered by the criminal act) that leads a jury to conclude: (1) that someone committed a crime; and (2) that the innocent defendant is that someone. Both steps in the proof process make use of equivalence relations; my principal contribution is to show that the way society defines these relations can play an important role in wrongful convictions. The model leads to two counter-intuitive results. First, I show that the likelihood of a wrongful conviction due to a witness' cross-racial misidentification can be reduced by making use of the witness's very weakness: her inability to tell apart individuals of other races. Second, I show that wrongfully convicted prisoners residing behind a veil of ignorance would reject the following exoneration rule: a prisoner whose innocence is determined with 100 percent certainty should be released immediately. That is, they would choose to keep some innocent individuals imprisoned, or at least to delay their release. The intuition is simple. Wrongful convictions will be overturned sequentially (i.e., not all at once); moreover, the order in which innocent prisoners are released matters: whenever exonerated prisoners, particularly recidivists, re-offend, they make it more difficult for the innocent who are still behind bar to get their convictions overturned.
Published Version
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