Evidence Of Innocence Research Articles

Investor reactions to apologies for financial misconduct

We conduct three experiments to examine the implications of corporate apologies on investors' reactions to allegations of financial misconduct. In Experiment 1, we manipulate whether the firm apologizes or denies the misconduct. Additionally, we manipulate how the firm apologizes for (denies) the misconduct by comparing “basic” response strategies (i.e., responses containing nothing more than a simple apology or denial) with “full” response strategies (i.e., responses containing additional elements, such as explicitly naming the misconduct). We find that investors are less willing to invest when the firm apologizes than denies it. Using mediation analysis, we find that when investors observe an apology, they attribute more responsibility to the management for the events, leading to a lower perception of credibility and a higher perception of litigation risk, ultimately affecting their investment judgment. Our results do not provide evidence that more extensive responses affect investors differently than more basic apologies or denials. In Experiment 2, we investigate self-disclosure as a potential strategy for firms to mute investors' negative reactions to apologies. Our results replicate the findings of Experiment 1. However, we do not find evidence that management can attenuate the adverse effects of apologizing for misconduct by self-disclosing the misconduct. In Experiment 3, we separate whether the apology includes an acceptance of responsibility or not and whether there is subsequent evidence of guilt or evidence of innocence. Surprisingly, investors do not react more favorably to apologies (with or without acceptance of responsibility) than denials, even when evidence substantiates the allegations. Overall, our study demonstrates that it is difficult for managers to attenuate the negative effects of financial misconduct on investors’ perceptions with apologies.

Barred: Why the Innocent Can't Get out of Prison

For three decades, the innocence movement has focused on proving “factual innocence” with DNA evidence. Substance. But as Professor Medwed details, far more people are wrongly convicted than those who can rely on exculpatory DNA evidence. DNA has been crucial to exposing the many causes of wrongful convictions: faulty forensic evidence, police and prosecutor misconduct, mistaken eyewitnesses, unreliable informants, false confessions, and racism. DNA opens the doors to recognizing these other causes of wrongful convictions. But what next?
 Barred walks us through the procedural bars and barriers at each step a wrongly convicted person takes toward freedom. As Medwed describes it, “the rule regime is stacked against the innocent, contrary to the popular belief that the postconviction process is full of escape hatches from the prison cell, those imaginary ‘technicalities’ that let people loose…. You can have evidence of innocence – and no one willing to hear it.”
 Through the pages of Barred, Medwed turns us to procedure for the next stage of innocence work. If it is procedure that creates the bars, then it is those bars we must bend to free innocent people.

Evidence in the Age of Privacy: Access to Data in the Criminal Justice System

This Article introduces the phenomenon of “privacy asymmetries,” which are privacy statutes that permit courts to order disclosures of sensitive information when requested by law enforcement, but not when requested by criminal defense counsel. In the United States adversarial criminal legal system, defense counsel are the sole actors tasked with investigating evidence of innocence. Law enforcement has no constitutional, statutory, or formal ethical duty to seek out evidence of innocence. Therefore, selectively suppressing defense investigations means selectively suppressing evidence of innocence. Privacy asymmetries form a recurring, albeit previously unrecognized, pattern in privacy statutes. They likely arise from legislative oversight and not reasoned deliberation. Worse, they risk unnecessary harms to criminal defendants, as well as to the truth-seeking process of the judiciary, by advantaging the search for evidence of guilt over that for evidence of innocence. The number of these harms will only increase in the digital economy as private companies collect immense quantities of data about our heart beats, movements, communications, consumption, and more. Much of that data will be relevant to criminal investigations, and available to the accused solely through the very defense subpoenas that privacy asymmetries block. Moreover, the introduction of artificial intelligence and machine learning tools into the criminal justice system will exacerbate the consequences of law enforcement’s and defense counsel’s disparate access to data. To avoid enacting privacy asymmetries by sheer accident, legislators drafting privacy statutes should include a default symmetrical savings provision for law enforcement and defense investigators alike.

Ending Innocence Denying: Changing the Narrative About What it Means to Be a Good Prosecutor

Prosecutors, the most powerful actors in the criminal justice system, also have the most difficult job: they must be “ministers of justice.” A prosecutor’s core mission is to vindicate the truth, rather than strive to “win” by accumulating a track record of convictions. When evidence comes to light suggesting that a wrongful conviction has occurred, a prosecutor’s ethical obligation requires admitting to a terrible mistake and working to undo it. Many conscientious prosecutors accept this responsibility and confess to their errors. But too many do not. They insist, in the face of overwhelming evidence to the contrary, that wrongfully convicted people are in fact guilty. These prosecutors actively work to delay justice. Some are so committed to adhering to the original mistake that they fail to prosecute the actual perpetrators. Much has been written about how to change the culture that leads to prosecutors’ reflexive doubling-down on wrongful convictions: public shaming in judicial opinions, more rigorous ethical training in law school and on the job, and sharper oversight by state bars. These measures are necessary, but they are insufficient. To curtail innocence-denying, the narrative must change about what it means to be a “good prosecutor,” historically defined as a tough-on- crime fighter whose overriding goal is to obtain and preserve convictions. This mindset pits a prosecutor’s self-interest in getting and preserving guilty verdicts against his or her ethical obligations, which require confessing error and reversing course where credible evidence of innocence exists. The explosion of interest in wrongful conviction cases, narrated as true crime stories in podcasts, documentaries, and other media, has begun to erode the power of traditional narrative. The public is now better informed about the ethical obligations of prosecutors and the consequences of violating these obligations. This, in turn, has led to important, to the election of reform-minded candidates who defeated innocence-denying incumbents by running on progressive platforms, including a commitment to revisiting wrongful conviction cases. In this article, I argue that these “good prosecutor” stories can be woven into a coherent and compelling meta-narrative that can help put an end to innocence denying. When the new exoneration narrative becomes predominant, prosecutors who embrace their ethical obligations and correct miscarriages of justice will have everything to gain because the voters will see them as courageous and just. Innocence deniers by contrast, will be rendered unelectable.

Habeas Corpus and Innocence: A Remedy for the Wrongly Convicted

Once a conviction takes place, in the event that proof of innocence comes to light after all appeal routes have been exhausted, the wrongly convicted will have little opportunity to get that evidence before a court and will remain imprisoned. The elusive silver bullet of exculpatory DNA evidence may well give support to the post-appellate extraordinary remedy of ministerial review pursuant to.696.1 of the Criminal Code but evidence relative to the far more frequent incidents of mistaken eyewitness identification, false confessions, perjured jailhouse informant testimony or otherwise faulty forensic science will very likely never see the light of day in the criminal justice process. Therefore, when all else has failed, this paper proposes that “The Great Writ of Liberty” of habeas corpus as a fundamental error conviction device may well be the last best hope to get evidence of innocence before a court for the purposes of exoneration. The traditional approach, relying upon the limitations of statutory jurisdiction only, stands for the proposition that habeas corpus cannot be used to circumvent the ordinary appeal process. This promotes the interests of finality for criminal convictions and the principle of res judicata. It is different matter however when there is no longer recourse to appellate remedies, either because all appeals have failed or the time for pursuing same has elapsed. In this regard, the production of fresh evidence leading to proof of innocence that has come to light post-conviction and appeal can better be served by the “purposive” interpretation of habeas corpus as a Charter remedy. A careful reading of the case law and legislation reveals that there is no doctrinal basis upon which to forestall the Great Writ of Habeas Corpus as a serviceable remedy to get proof of innocence before a court to exonerate the wrongly convicted.

The Evidence of Things Not Seen: Non-Matches as Evidence of Innocence

Exonerations famously reveal that eyewitness identifications, confessions, and other “direct” evidence can be false, though police and jurors greatly value them. Exonerations also reveal that “circumstantial” non-matches between culprit and defendant can be telling evidence of innocence (e.g., an aspect of an eyewitness’s description of the perpetrator that does not match the suspect she identifies in a lineup, or a loose button found at the crime scene that does not match the suspect’s clothes). Although non-matching clues often are easily explained away, making them seem uninteresting, they frequently turn out to match the real culprit when exonerations reveal that the wrong person was convicted. This Article uses “non-exclusionary non-matches” and what would seem to be their polar opposite, inculpatory DNA, to show that: (1) all evidence of identity derives its power from the aggregation of individually uninteresting matches or non-matches, but (2) our minds and criminal procedures conspire to hide this fact when they contemplate “direct” and some “circumstantial” evidence (e.g., fingerprints), making those forms of evidence seem stronger than they are, while, conversely, (3) our minds and procedures magnify the circumstantial character of non-exclusionary non-matches, making them seem weaker than they are. We propose ways to use circumstantial matches and non-matches more effectively to avoid miscarriages of justice.

Innocence and Federal Habeas after AEDPA: Time for the Supreme Court to Act

New empirical research shows that, since AEDPA, the likelihood of success in non-capital federal habeas corpus has dropped to less than one percent. Federal habeas courts continue to be concerned about the wrongful conviction of innocent defendants, but their role in such cases must be redefined. Habeas courts are structurally incapable of effectively screening and investigating claims of wrongful conviction; these responsibilities are better performed by extrajudicial actors such as innocence projects, innocence commissions, law school clinics, volunteer lawyers, and the media. The proper role of habeas is to provide a clear path to relief, unencumbered by procedural restrictions, for petitioners who can produce clear and convincing new evidence of innocence. The Supreme Court should help to create such a path by finally acknowledging the constitutional status of “bare innocence” claims based on new evidence.

Estimating the Probability of False Conviction for Criminal Defendants Who are Sentenced to Death

This study is addressed to one of the great unknowns of criminal justice: the frequency of convictions of innocent defendants. A general estimate of the rate of false conviction may be beyond reach, but the extraordinarily high number of exonerations among defendants who have been sentenced to death makes it possible to estimate a lower bound for the rate of false conviction among death sentences. Previous studies have shown that 2.3% of all defendants sentenced to death in the United States between 1973 and 1989 (Gross & O’Brien 2008), and 3.3% of defendants sentenced to death for rape murder from 1982 through 1989 (Risinger 2007), were exonerated and released because of strong post-trial evidence of innocence. These are underestimates of the rate of false conviction because some innocent death row prisoners are never identified and exonerated. This study focuses on those death-sentenced defendants who remain under threat of execution, as opposed to the large proportion who are removed from death row and resentenced to life imprisonment. Our hypothesis is that only those capital defendants who might still be put to death receive the extraordinary level of attention and scrutiny that makes it plausible to use the rate of exoneration as a proxy for the rate of false conviction at trial. Using survival analysis, we: (1) demonstrate that removing the threat of execution does in fact decrease the probability of exoneration for a death sentenced inmate by a factor of about 8; and (2) estimate that the cumulative rate of exoneration for those defendants sentenced to death in the United States between 1973 and 2004 who remained under threat of execution for at least 21 years is 4%. This too, however, is very likely an underestimate. There are strong theoretical and anecdotal reasons to believe that death sentenced defendants who might be innocent are more likely than other death row inmates to be removed from death row without being exonerated – at which point the probability of exoneration drops precipitously. If so, the population of defendants who remain on death row for long periods of time, or who are executed, includes a smaller proportion of innocent defendants than the entire population of death sentenced defendants, and the true rate of false convictions among all death sentenced defendants in the United States must be considerably higher than 4%.

Innocent Until Proven Innocent

As the national media descended on Durham, North Carolina, in wake of public accusations of rape against three Duke Lacrosse student athletes, much of the discourse remained mired in its own shock and awe. Ignoring, if not erasing, histories of sexual violence involving White men and Black women while focusing on the problems plaguing college athletics, the media, and the numerous online defenders of the players used this instance to rearticulate tropes of White power, imagining the case as yet another assault on White masculinity. Beyond examining these deployed fictions and the denials of the possibility of guilt, given the player’s Whiteness, sport of choice, educational institution, and class status, this article explores the ways in which their student athlete identities were seen as either meaningless or evidence of innocence, especially in juxtaposition to the discursive articulation of the criminalized Black male student athlete.

Innocence Commissions: Due Process Remedies and Protection for the Innocent

Currently the American criminal justice system has no institutional mechanism to evaluate the conviction of an innocent person. An innocence commission would fill this gap. The commission would automatically review any acknowledged case of wrongful conviction, whether the conviction was reversed on post-conviction DNA tests, or through development of new evidence of innocence. Upon review of these cases, the commission would recommend remedies to prevent such miscarriages of justice from happening again. This paper commences with a review of the primary areas of wrongful conviction, followed by recommendations made with respect to the substantive components constituting innocence commissions. To empirically demonstrate the fiscal soundness of creating an innocence commission, data was gathered pertaining to the state of Arizona. Statements from criminal justice professionals and politicians in support of innocence commissions conclude our discussion.

Investigating Innocence

DNA technology has uncovered the significant problem of wrongful conviction in the United States. Australians tend to have great faith in our criminal justice system; however, innocent people have also been wrongly convicted in this country. As a society, we must never become complacent about our criminal justice system: we must continually address areas likely to be relevant to the incidence of wrongful conviction, and we need mechanisms for the proper review of claims of innocence. Following in the footsteps of Innocence Projects in the United States, Innocence Projects in Australia are emerging as a resource for the investigation of claims of wrongful conviction with the aim of freeing innocent persons from incarceration. The majority of wrongful conviction claims will not involve DNA evidence, making the investigative work of Innocence Projects more complex and time-consuming, but also a task in which student resources are particularly valuable. To enhance the effectiveness of addressing claims of wrongful conviction, adoption of legislation or procedures is required. This would include changes requiring the preservation of evidence and expanded access to the courts of appeal for persons who have exhausted their one appeal prior to investigations uncovering evidence of innocence.

The Execution of the Innocent

In February 1997, the (usually conservative) House of Delegates of the American Bar Association (ABA) overwhelmingly adopted a report from its section on Individual Rights and Responsibilities and went on record as being formally opposed to America's current system of capital jurisprudence, calling for an immediate moratorium on executions.2 The motion was supported by twenty former presidents of the ABA (some who counted themselves as supporters of the death penalty), and passed in the House of Delegates by a twothirds margin. Among the issues of concern to the ABA were the lack of competent counsel in death penalty cases, restricted access to appellate courts even when new evidence of innocence is present, and racial disparities in the administration of capital punishment.3 In this article, we focus on one of the problems that gave rise to the ABA resolution: the continuing and regular incidence of American trial courts sentencing innocent defendants to death. Elsewhere, we have published accounts of more than four hundred cases where persons were wrongfully convicted in capital (or potentially capital) cases and described several dozen of these cases in detail.4 Our discussion in this article falls into three parts. First, we explore the conceptualization of the term innocence. (Without a precise concept, we have no suitable criterion for deciding who should and should not be considered innocent despite a crimi-

The Hanging Tree: Execution and the English People 1770- 1868 (review)

Reviewed by: The Hanging Tree: Execution and the English People 1770–1868 Randall McGowan V. A. C. Gatrell. The Hanging Tree: Execution and the English People 1770–1868. Oxford: Oxford University Press, 1994. Pp. 634. $30. Historians have told us in recent years that the gallows cast a long shadow over eighteenth-century Britain. V. A. C. Gatrell, in his new book on execution, agrees with this emphasis, but he can scarcely conceal his impatience with traditional scholarship. Seven thousand people, he calculates, died on the scaffold during the period he studies, and thousands regularly attended the executions. The number executed remained alarmingly large right through the 1820s, and the capital code found defenders to the very last. Gatrell argues that historians have been too quick to turn away from these spectacles of ignominious death. They have been too preoccupied with puzzling out the administration of the law and arguing over whose interests it might serve. “There remain,” he writes, “strange gaps in our understanding. What did humble, middling, and middle kinds of people think about hanging” (vii)? He insists that we should be studying the feelings of people who suffered death, saw the execution, imposed the sentence, and agitated for [End Page 238] reform of the criminal law. We will, he contends, have a better understanding of how the criminal system operated, and why it was reformed, if we pay more attention to the “diverse ways in which people released, accommodated, or suppressed emotions as they watched, read about, or reported hanging”(5). When we confront the execution scene, Gatrell explains, we must begin with the recognition that what people saw was “horrific”(7). “We must move closer to the choking, pissing, and screaming than taboo, custom, or comfort usually allow”(30). Death was not an abstract idea; it was a grim and messy experience. Such language is characteristic of this book. His approach is psychological; Freud, rather than Foucault, presides over this work (238–41, 266–69). He wants to force us to see what we are too polite to talk about. Gatrell is at war with the squeamishness that characterizes so much of modern civility. He is also at odds with what he calls the “prim” approach of most legal historians. His primary target is the claim of the humanitarians to have overthrown the gallows. Not only did their claims about feeling not bring about reform; on the contrary, it was the simple “overloading of the capital code” that produced change (19). But their supposed sympathy with the condemned was limited. Sympathy was typically reserved for those of their own class. Their fastidiousness kept them from developing a genuine revulsion against the cruelty and injustice of the institution. Many of the six hundred pages of this book bring together a wide variety of sources that help Gatrell to build a picture of how people reacted to death. He makes imaginative use of broadsides, ballads, and woodcuts to suggest how the populace felt about an execution. He surveys an impressive number of diaries and letters to illustrate the range of responses among the respectable classes. His richest find consists of the petitions submitted to the crown in hopes of securing a mitigation of a sentence of death or transportation. Only a few such petitions survive for the eighteenth century, but by the 1820s we find thick files with extensive comments by those in authority. They offer, he says, a truer guide to public opinion and a more forceful argument for reform than the exaggerated appeals originating with the self-proclaimed humanitarians. He uses these sources to narrate a succession of gripping episodes that illustrate his main points. Gatrell’s portrait of British justice is as sweeping as his insistence on emotion as the key to the history of the gallows. “It would not be an anachronistic verdict to say that the punishments surveyed here delivered an offense against humanity, and that the scaffold and the justice which sent people to it were monstrous devices of power” (55). Trials were disorderly: judges were callus, careless, and vindictive. They displayed no qualms of conscience as they ignored mitigating claims or even evidence of innocence. His sharpest words are reserved for...