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 MorgueFile, file5161250743654.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 Münsterberg, 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. Münsterberg 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:
https://www.nap.edu/catalog/12589/strengthening-forensic-science-in-the-united-states-a-path-forward
