Wednesday, March 08, 2017

Anatomy of Innocence: What Causes Wrongful Convictions?

Reprinted with the kind permission of inSinC, the Sisters in Crime Quarterly, March 2017. I wrote this article for the "Fact to Fiction" column, and have added this photo and a few additional links below.

Photo Credit: KConnors on MorgueFilefile5161250743654.jpg

Anatomy of Innocence: What Causes Wrongful Convictions?

With the release this month of Anatomy of Innocence: Testimonies of the Wrongfully Convicted, edited by SinC members Laura Caldwell and Leslie S. Klinger, I’ve decided to briefly describe some of the reasons the innocent may be wrongfully sentenced and imprisoned.

Like Sara Paretsky, Gary Phillips, SJ Rozan, Lee Child, LaurieKing, and others writers who contributed to the book, I interviewed an exoneree and wrote a chapter based on his experiences. I had the honor of working with Alton Logan, and his ordeal haunts me — just as his courage and ability to survive inspire me. (The proceeds of Anatomy of Innocence benefit Life After Innocence, a nonprofit which helps the wrongfully convicted to reenter life after exoneration.)

This brief column cannot replace the book, but I hope to interest writers and readers in taking a look at these issues. You wouldn’t be reading or writing crime fiction if you didn’t think about justice. For writers, there are many story ideas here, and opportunities to raise awareness of ways we can make criminal justice more just. Writers who fail to research these problems can inadvertently lend weight to questionable practices, giving readers a false sense of assurance about them. “Of course hairs can be matched!” Readers then take those assumptions into the jury box.

Here’s a quick look at three leading causes of wrongful convictions — I’ve included links for sites where you can learn more:

Eye-Witness Misidentification

According to a study by the Innocence Project, 70% of the wrongful conviction cases later overturned through DNA evidence were the result of eye-witness misidentification. Of those, 43% were cross-racial misidentification, and 32% involved multiple misidentifications of the same person.

The problems with eye-witness identifications have been scientifically studied for a long time. Hugo M√ľnsterberg, who taught at Harvard and was a pioneer in forensic psychology, published On the Witness Stand over one hundred years ago. This collection of his articles and essays discussed the fallibility of human memory, the ways in which an individual’s perceptions can be changed by circumstances, jury research, and more. M√ľnsterberg found that even in controlled, low-stress environments, the ability of individuals to accurately observe and recall events is far less reliable than we assume it to be.

Hundreds of other studies have shown that human memory is not unalterable and we are not the “walking video recorders” we seem to believe witnesses to be. Factors known to affect observation and memory are many, and include lighting, distance, stress, fear, trauma, the presence of a weapon, and a difference in race between the witness and perpetrator.

Preventable problems with eye-witness identification are sometimes created by those in law enforcement. Line-ups should be administered by someone who does not know who the suspect is — it is too easy to introduce bias otherwise. Careful line-up composition, video recording of witness interviews, and other steps can be taken to prevent misidentification.

Faulty Forensic Science

Forensic science has faced challenges as DNA evidence has repeatedly shown that some courtroom “science” hasn’t been based in science at all. Other forensic tests have never been subjected to rigorous evaluation. Statistical significance of findings has been misstated.

A 2009 study by the National Academies of Sciences enumerated many weaknesses and problems in the field of forensic science. This led to efforts to ensure that all forensic science disciplines have a strong scientific foundation.

These changes have not been without resistance in some quarters, especially from some of those who have been testifying as experts in questioned fields. Still, 46% of the wrongful convictions later cleared by DNA evidence were attributed by the Innocence Project to invalid or improper forensic science.

Among others, areas questioned include bite mark evidence, microscopic hair comparisons, and firearms tool mark analysis. In 2015, the Washington Post reported that the Justice Department and the FBI acknowledged that 26 of its 28 microscopic hair examiners overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed. Of those cases, 34 defendants had been sentenced to death and 14 of those had been executed.

Faulty chemical tests, sold cheaply and used by police departments across the country, have recently come under fire by ProPublica’s investigativejournalists, who found that “tens of thousands of people have been jailed based on a $2 roadside test” that routinely produces false positives.

Polygraphs, also known as “lie detector tests,” are not admissible in federal courts, but are in many state courts. These tests have been widely criticized as being unreliable and without scientific basis. 

False Confessions

It is nearly impossible to convince jurors — and judges — that people who are innocent may confess to crimes they did not commit. And yet when the Innocence Project examined its first 311 wrongful conviction cases cleared by DNA evidence, more than 25% of them included false confessions.

The reasons for false confessions are many. Nearly anyone may give a false confession under certain circumstances, but children, adolescents, the mentally disabled, the mentally ill, and those who are drunk or high are more likely to produce false confessions. Police interrogation methods and the length of interrogations are factors. Police are legally allowed to lie to suspects about what evidence they have, including telling them they failed a polygraph test, another factor that influences false confessions. Ignorance of the law, threats of harsher sentences, and fear of violence are also factors.

Suggested remedies include mandatory video recording of all interrogations, changes in the current law so that prosecutors would be required to tell the defendant of exculpatory evidence in plea deal situations, and adopting less adversarial  interrogation methods, such as those used in Great Britain.

There are other reasons for wrongful convictions —time spent researching them will be time well-spent. Anatomy of Innocence will give you an inside look at what happens when we convict the innocent, and why we should be concerned.

Links and Sources: