Innocent Defendants Research Articles

Code is law: how COMPAS affects the way the judiciary handles the risk of recidivism

AbstractJudges in multiple US states, such as New York, Pennsylvania, Wisconsin, California, and Florida, receive a prediction of defendants’ recidivism risk, generated by the COMPAS algorithm. If judges act on these predictions, they implicitly delegate normative decisions to proprietary software, even beyond the previously documented race and age biases. Using the ProPublica dataset, we demonstrate that COMPAS predictions favor jailing over release. COMPAS is biased against defendants. We show that this bias can largely be removed. Our proposed correction increases overall accuracy, and attenuates anti-black and anti-young bias. However, it also slightly increases the risk that defendants are released who commit a new crime before tried. We argue that this normative decision should not be buried in the code. The tradeoff between the interests of innocent defendants and of future victims should not only be made transparent. The algorithm should be changed such that the legislator and the courts do make this choice.

Change of position as defence to unjust enrichment claims: Stories from Hong Kong

The recent decision of the Hong Kong High Court (the ‘HKHC’) in Credit One Finance Limited v Yeung Kwok Chi & Others is worthy of the attention of the common law world. The HKHC followed a ‘but for’ test developed by English courts and established that reliance on receipt of enrichment is not a necessary ingredient of the change of position defence. This case not only marks itself the first Hong Kong case discussing the role of reliance in the change of position defence but also offers a comparative study of the laws of unjust enrichment in the common law world. As observed by this note, this case also reflects an underlying divergence between, on the one hand, English and Hong Kong laws of unjust enrichment and, on the other hand, the law of unjust enrichment in Australia in terms of the change of position defence. In addition to the clarification of the legal position, this case comes with practical implications for innocent defendants in receipt of benefits and serves as an important reminder to financial institutions on the importance of anti-money laundering and fraud investigations.

An attribution theory-based content analysis of mock jurors' deliberations regarding coerced confessions.

Because confessions are sometimes unreliable, it is important to understand how jurors evaluate confession evidence. We conducted a content analysis testing an attribution theory model for mock jurors' discussion of coerced confession evidence in determining verdicts. We tested exploratory hypotheses regarding mock jurors' discussion of attributions and elements of the confession. We expected that jurors' prodefense statements, external attributions (attributing the confession to coercion), and uncontrollable attributions (attributing the confession to defendant naivety) would predict more prodefense than proprosecution case judgments. We also expected that being male, politically conservative, and in support of the death penalty would predict proprosecution statements and internal attributions, which in turn would predict guilty verdicts. Mock jurors (N = 253, Mage = 47 years; 65% women; 88% White, 10% Black, 1% Hispanic, 1% listed "other") read a murder trial synopsis, watched an actual coerced false confession, completed case judgments, and deliberated in juries of up to 12 members. We videotaped, transcribed, and reliably coded deliberations. Most mock jurors (53%) rendered a guilty verdict. Participants made more prodefense than proprosecution statements, more external than internal attributions, and more internal than uncontrollable attributions. Participants infrequently mentioned various elements of the interrogation (police coercion, contamination, promises of leniency, interrogation length) and psychological consequences for the defendant. Proprosecution statements and internal attributions predicted proprosecution case judgments. Women made more prodefense and external attribution statements than men, which in turn predicted diminished guilt. Political conservatives and death penalty proponents made more proprosecution statements and internal attributions than their counterparts, respectively, which in turn predicted greater guilt. Some jurors identified coercive elements of a false confession and rendered external attributions for a defendant's false confession (attributing the confession to the coercive interrogation) during deliberation. However, many jurors made internal attributions, attributing a defendant's false confession to his guilt-attributions that predicted juror and jury inclinations to convict an innocent defendant. (PsycInfo Database Record (c) 2023 APA, all rights reserved).

Remanding Justice for the Innocent

Historically, the literature on wrongful convictions has focused on a relatively small number of high-profile exonerations of convictions for serious crimes. However, these cases represent only a small percentage of the total number of wrongful convictions. An emerging area of scholarship is expanding our understanding of their prevalence, by looking at the role that systemic and structural pressures have had on the choice of factually innocent defendants to enter false guilty pleas (FGPs). Plea bargaining – particularly presenting defendants in low-level criminal cases with “offers that they cannot refuse” – needs to be understood as having the potential to increase the number of wrongful convictions. Within this context, this article argues that the increased use of pre-trial detention (PTD) represents a very powerful source of FGPs. Part I discusses the potentially large number of cases affected by FGPs in Canada. Part II explores how the mechanisms of PTD likely influence defendants’ decisions to give a FGP. Part III discusses how the prevalence of FGPs represents a trade-off of the value of a defendant’s innocence in favour of other institutional or societal objectives rooted in the generalized culture of risk aversion and risk management in the Canadian criminal justice system. This emerging scholarship represents a particularly important area of inquiry because, by their very nature, FGPs represent one of the least correctable and answerable parts of the criminal justice system.

From whose perspective? Differences between actors and observers in determining the voluntariness of guilty pleas.

Valid guilty pleas must be made voluntarily, yet most defendants report that they did not feel part of the decision-making process or responsible for the decision. Defendants and judges both play a role in determining whether guilty pleas are voluntary. The actor-observer bias suggests that defendants and judges perceive the decision-making process differently given the nature of their roles. The present studies applied this framework to assess the complexity of voluntary plea decision-making. We expected observers would rate pleas as more voluntary than would actors. We also expected participants to rate pleas made by guilty defendants as more voluntary than those made by innocent defendants and to view pleas made with voice as more voluntary than those made without voice. Finally, we expected the effect of guilt and voice on voluntariness to differ for actors and observers. Participants were Amazon's Mechanical Turk workers (Study 1: N = 202, Study 2: N = 626) who had a history of high-quality performance on past tasks, were roughly evenly split between men (Study 1: 52%, Study 2: 53%) and women (Study 1: 48%, Study 2: 47%), and were primarily White/non-Hispanic (Study 1: 84%, Study 2: 75%). They watched video-recorded materials about a criminal case in which a defendant decided how to plead. The materials varied the participant's role (actor, observer), the defendant's guilt (innocent, guilty), and whether the defendant had a voice in the decision-making process (no voice, voice). Participants then rated the voluntariness of the decision-making process. In both studies, actors rated pleas as more voluntary than did observers. Participants rated guilty pleas as more voluntary when the defendant was guilty compared with innocent. Participants also rated pleas as more voluntary when the defendant had a voice in the decision-making process compared with when the defendant did not have a voice, but the difference was bigger for observers than for actors. Defendants and judges both determine whether a guilty plea is made voluntarily. These decision-makers are likely to perceive the plea decision-making process differently given their differing perspectives. There was also a large effect of voice on whether decisions were perceived to be voluntary. Individuals who play a role in the plea decision-making process should ensure that defendants have a proper opportunity to express their opinions and preferences about the decision. (PsycInfo Database Record (c) 2022 APA, all rights reserved).

Cognition and incentives in plea decisions: Categorical differences in outcomes as the tipping point for innocent defendants.

Cognition and incentives in plea decisions: Categorical differences in outcomes as the tipping point for innocent defendants.

A multivariate extension to the standard 4σ criterion for comparison of forensic glass evidence

This manuscript presents a more accurate and easy to implement multivariate generalisation of the international standard 4σ forensic glass comparison technique. Many crimes result in glass breaking, and the broken glass found at a crime scene can be important forensic evidence. The chemical composition of this glass can be measured to establish whether it can be distinguished from glass fragments found on a suspect’s clothing. The chemical composition can be measured using laser ablation-inductively coupled plasma mass spectrometry. A commonly used method to compare fragments of glass is the 4σ interval criterion. This method, however, compares each element individually and does not take advantage of the multivariate nature of this data. We introduce a multivariate extension to this method, which makes use of the correlation structure between the elements. We demonstrate that this method results in an improvement in the false positive rate, with only a small compromise in the false negative rate. The improvement in false positive rate is desirable as false positives translate to misleading evidence against a potentially innocent defendant. The multivariate generalisation improves accuracy while retaining a similar interpretation, and so is suitable to present in court.

Laypersons’ misconceptions as a barrier to understanding plea bargaining’s innocence problem

ABSTRACT Although the vast majority of criminal cases in Canada and the United States are resolved through plea bargaining, research suggests that the public generally disapproves of this practice. Public disapproval toward plea bargaining may reflect the public’s erroneous belief that all defendants who accept a plea are guilty and should be prosecuted to the fullest extent of the law. At this time, it is unclear whether the public is aware of the fact that innocent defendants also accept plea bargains. We administered an exploratory survey to examine undergraduate students’ (N = 237) and community members’ (N = 259) perceptions of the situational and dispositional factors that are associated with false guilty pleas and exposure to crime/law media programmes. Results demonstrated that both students and community members underestimated the degree to which certain situational (e.g. attorney influence, saving money) and dispositional (e.g. age, compliance) factors can influence innocent defendants’ decisions to plead guilty. Results also demonstrated that greater exposure to crime/law media programmes may help to increase public awareness about false guilty pleas.

Prosecutor Quality, Witness Participation, Crime, and Reform

We develop a model wherein concerns about prosecutor quality reduce the willingness of witnesses to cooperate with prosecutors. This causes an increase in the crime rate and in wrongly convicted innocent defendants. Because citizens are taxpayers and may be victims, perpetrators, witnesses, or falsely accused defendants, they care about the prosecutor’s quality. They update beliefs about this quality based on the disposition of cases. If the prosecutor’s believed quality falls below a threshold, then a majority of voters chooses to replace the prosecutor with a challenger, in expectation of reform. We compare the majority’s choice with that of a social planner. (JEL D83, K41, K42)

Measuring Innocence

What is the rate of wrongful conviction? This question may be implicit in Blackstone’s ratio: “It is better that ten guilty persons escape than that one innocent suffer.” Scholarship designed to provide an empirical answer, however, emerged only with the rise of the “innocence movement” in the United States. This article does not provide another study estimating the rate of wrongful felony conviction either for a specified sample, such as death sentences within a specified time period, or for an entire jurisdiction. Instead, we evaluate the rate question itself and assess its importance to innocence scholarship and action. We first trace the question’s intellectual lineage, and its historical and ideological roots among innocence believers and innocence skeptics. We then describe and evaluate all or most of the published studies attempting to estimate the wrongful conviction rate. Next, we discuss a reoccurring limitation of this published work, namely, its failure to account for or its unsubstantiated assumptions about guilty pleas and misdemeanor convictions among innocent defendants. Finally, we question the continued importance of the rate question in light of the modern innocence movement and its growing accomplishments.

Damage compensation for innocent defendants and Convicts in Iran and the Canadian legal system

In the field of innocent defendants and convicts' damage compensation who have endured further losses due to issue criminal supply contracts or orders execution, their innocence has been cleared by issuing acquittance sentences. It counted as one of the most challenging issues in private and criminal law. In these recent years, based on positive changes in the rules of Iran, a lot of works done for innocent defendants and convicts' damage compensation have endured different and unfair punishments. But no integration or constructive work has been done for guiltless convicts' damage compensation who have endured some parts or all their punishments, and their innocence has been proved but not predicted. The reverse of this matter is true in the Canadian law system. Only a guilty convict who has tolerated some or all parts of unfair punishment deserves to receive damage compensation. This study attempted to research the subject's international binding rules, and many practical strategies for guiltless convicts' damage compensation will be considered in both systems by a comparative study.

Supplemental Material for Cognition and Incentives in Plea Decisions: Categorical Differences in Outcomes as the Tipping Point for Innocent Defendants

Supplemental Material for Cognition and Incentives in Plea Decisions: Categorical Differences in Outcomes as the Tipping Point for Innocent Defendants

Advocacy and the Innocent Client

Much of our knowledge about wrongful convictions is derived from known exonerations, which typically involve serious violent offences and lengthy sentences. These represent only a small proportion of offences prosecuted in Canada each year, and little is known about how often innocent defendants may be wrongfully convicted of less serious offences. Recent discussions have begun to focus on the problem of false guilty pleas, in which defendants choose to plead guilty to a lesser offence to avoid the time and cost required to defend their innocence. The majority of our knowledge of the factors contributing to wrongful convictions is based on American scholarship, with less empirical research exploring wrongful convictions within the Canadian context. The present research surveyed Canadian criminal defence lawyers about their experiences representing innocent clients, including their perspective on the underlying causes of wrongful convictions in Canada and their recommendations for reform to the criminal justice system. Nearly two-thirds of defence counsel in this study reported that they had represented at least one client who was convicted despite credible claims of innocence. Many reported that they regularly see innocent clients choose to enter a strategic false guilty plea, perceiving no meaningful or realistic alternative. Counsel described a system designed to elicit a guilty plea, with lengthy pre-trial delays, routine denial of bail, inadequate funding of Legal Aid, costly defence options, padded charges, and false evidence ploys. This research expands our knowledge of wrongful convictions in Canada, their hidden prevalence, and systemic problems that increase the likelihood of their occurrence.

The Case for the Abolition of Criminal Confessions

Confessions are often considered the “gold standard” of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendant’s due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms. This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is both sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, this overvaluation means both that innocent defendants are systemically pressured into proclaiming their guilt and that juries are so swayed by it — even in light of countervailing evidence — that they render wrongful convictions. Indeed, as practice and empirical evidence demonstrate, this is not merely a theoretical possibility: false confessions and resulting miscarriages of injustice occur with disturbing frequency. Moreover, confession evidence, and the methods to obtain it, impose significant harms on defendants in terms of their due process and moral rights, due to the pressures of interrogation, investigation, and jeopardy. And our current constitutional and evidentiary doctrine is incapable of addressing these harms, for it fails to recognize that false confessions are often caused by overwhelming pressures endemic to our criminal justice system. Consequently, solving these problems requires a comprehensive, properly focused solution that goes far beyond our current doctrinal hodgepodge. The abolition of confession evidence meets that demand. Compared to other solutions that have been proposed, such as further limiting law enforcement and prosecutorial conduct or introducing expert testimony and evidence, the abolition of such evidence best apprehends and mitigates the epistemic and moral concerns arising from confession evidence and interrogation. In addition, it coheres with and flows from the Constitution’s due process requirement of voluntariness in confessions and the evidentiary requirements of reliability. Finally, it preserves and improves key features of our criminal justice system, namely interrogation, plea bargaining, and the assessment of evidence.

Critical Race Theory, Wrongful Convictions and Disparate Exonerations of Minority and White Youths in the United States

Race is central to every aspect of the criminal justice system in the United States. According to the U.S. Bureau of Justice Statistics (BJS), in 2013, black males accounted for 37 percent of the total male prison population in the United States with white males accounting for only 32 percent followed by Hispanic males at 22 percent respectively. In the general population, however, Black males comprise only 6 percent of the total males population while White males constitute 31 percent of the total males population in the U.S. followed by Hispanic males who make up 8.4 percent of the total male population. The conviction of innocent defendants is quite disturbing regardless of race or ethnicity. Nothing is more glaring of this phenomenon than when one considers that African American males make up only 6 percent of the total males population but are reported as committing 52 percent of the murders. It is widely known that the lack of formal processes and constitutional due process in the juvenile justice system and the potential for substantial deprivations of children’s liberty through extensive periods of incarceration has been pervasive, persistent, and ongoing in this country (Juvenile Justice Center, 2020). Critical Race Theory has done nothing less than shed more light on the predictability of youth treatment landing them behind bars for lengthy prison sentences for crimes in which they frequently did not commit. Critical Race Theory falls short, however, of offering any plausible explanations for why so many minority youths are falsely imprisoned. Other theories must be considered as plausible explanations for this phenomenon of disparate treatment between the races whether it be police shooting, disparate convictions and incarceration or racial profiling. These theories include Racial Conflict Theory, Racial Threat Theory and Petit Apartheid Theory. The core idea of Critical Race Theory is that racism does not stop at the individua level, but it is systemic or system-wide and ingrained in our policies, in our legal systems and institutions. Critical Race Theory has absolutely nothing to do with “punishing kids for their skin color or making young white kids feel guilty for being white no more than critical thinking is criticizing someone for well thinking. Critical Race Theory is a dialogue for raising awareness of policies and practices that have had a disproportionately negative impact on racial minorities in particular and youth in general irrespective of race. There were 2,310 people serving life-without-parole sentences for crimes committed as juveniles (known as JLWOP) at the end of 2016. This study examines the data extracted from the national registry of exonerations in the United States on every known exoneration from 1989 to 2020. Contributing factors to such disparate convictions among young African American males such as false confessions, mistaken identity, false accusations, witness tampering, perjury or false statements under oath particularly by police officers, prosecutorial misconduct, inadequate legal defense, and mistaken witness identification are highlighted and discussed as major contributing factors to the exoneree’s eventual release. This study assumes the position that, although all lives matter, it appears that African American Male Youths are more disproportionate among the population of those exonerated for crimes that they did not commit. The study proffers policy implications and policy changes that appear to be viable solutions to this egregious and tragic abuse of humankind.

Unintelligent Decision-Making?

The disclosure of evidence, primarily from the prosecutor to the defense (i.e., discovery) is key to a fair and just legal system. Restrictive discovery policies have been criticized for contributing to innocent defendants pleading guilty (Alkon, 2014) and to uninformed plea decisions (Friedman, 1971). Open-file policies, in which prosecutors broadly share evidence with the defense, are a leading reform to address these issues. This study investigated the impact of guilt and access to discovery information (with or without exculpatory evidence) on plea decisions. We hypothesized that, in comparison to their counterparts, participants who had access to all of the evidence (i.e., those in open-file condition) and participants who were innocent would rate the evidence against them as significantly weaker, their probabilities of conviction at trial as significantly lower, and would be less likely to take the plea deal. We also hypothesized that ratings of evidence strength and probability of conviction would mediate expected relations between the plea decision and conditions. One-hundred participant-defendants were randomly assigned to open- vs. closed-file and guilt vs. innocence conditions, and asked to review case materials that either contained full or partial discovery. They were then asked to rate the strength of the evidence against them, their probability of conviction, and to accept or reject a plea offer in a hypothetical case. Defendant guilt and access to discovery information impacted perceived evidence strength, which subsequently impacted plea decision-making. Our findings indicate that access to discovery information indirectly impacted defendants’ plea decisions.

SOCIALLY OPTIMAL PLEA BARGAINING WITH COSTLY TRIALS AND BAYESIAN JURIES

This paper investigates optimal plea bargaining when trials are costly, defendant guilt is uncertain, and juries rationally respond to the plea bargaining policy employed. The model shows that when innocence rates among the arrested are low, it is optimal to offer all defendants pleas that are acceptable to guilty and innocent defendants. However, as the innocence rate becomes more significant, optimal plea policy switches to one in which plea offers are only acceptable to guilty defendants. However, even when optimal, the societal benefits to such separating policies are limited due to constraints on the frequency such offers can be made. (JEL D6, D8, K4)

Satisfaction, Legitimacy, and Guilty Pleas: How Perceptions and Attorneys Affect Defendant Decision-Making

Though almost all convictions are the result of guilty pleas, little research has examined influences on defendant plea decisions. First, we explore how attorney satisfaction and court legitimacy affect defendant choices. Using an experimental approach, we then assess the impact of a defense attorney’s evaluation of a plea offer on the defendant’s willingness to accept a plea, and whether this is moderated by defendants’ individual views. Findings demonstrate that higher attorney satisfaction and higher court legitimacy are associated with higher willingness to accept a plea. Defendant decision-making is also impacted by their attorney’s evaluation of the plea and this influence is moderated by the defendant’s satisfaction with their representation. In line with previous research, we also find differences across guilt indicating that guilty and innocent defendants may have different decision-making processes. Results suggest that guilty plea research should continue to evolve with increased attention to the defendant and their counsel.

Investigating and Presenting an Alibi Defense

The New Jersey Supreme Court has said that “few defenses have greater potential for creating reasonable doubt as to a defendant's guilt in the minds of the [jurors than an alibi].” But is alibi a powerful defense, or a risky gambit with a high likelihood of backfiring? In two-thirds of exoneration cases, the innocent defendant offered an alibi which was rejected by the fact finder. This article explores the psychology of autobiographical memory, how police and jurors perceive alibi witnesses, common interview and interrogation tactics, common cross-examination questions, and offers some guidance about how to better present this defense.

Investigating and Presenting an Alibi Defense

The New Jersey Supreme Court has said that “few defenses have greater potential for creating reasonable doubt as to a defendant's guilt in the minds of the [jurors than an alibi].” But is alibi a powerful defense, or a risky gambit with a high likelihood of backfiring? In two-thirds of exoneration cases, the innocent defendant offered an alibi defense at trial which was rejected by the fact-finder. This article talks about alibi defenses from psychological research into the defendant's autobiographical memory and investigator tactics in the interrogation room, to alibi witnesses' memory and susceptibility to post-event information, to expected cross-examination and other courtroom issues.