CONVICTIONS GONE WRONG: A QUANTITATIVE STUDY ON WRONGFUL CONVICTIONS.
Author: Sai Niharika
Alliance School of Law
Wrongful convictions are synonymous with the miscarriage of justice. It occurs when a person who is actually innocent is declared guilty by a competent court of law and is convicted for an offence he never committed. It is a rarity to take up the defense of a wrongful conviction in criminal proceedings, especially when the case goes to appeal. Miscarriage of justice occurs due to correctible systematic factors, i.e., they cannot be termed as inevitable failures of courts. Wrongful convictions are viewed as a social problem globally. The research conducted in this particular area is mostly by lawyers and psychologists. I believe that if social scientists make an attempt to delve deeper into the same, it would be highly beneficial and yield results that can help in remedying the problem.
This paper will primarily be focusing on the phenomenon of wrongful convictions itself; an attempt will be made to ascertain the possible causes that give rise to the problem in question and the consequences that follow. There are a few common sources of error that are prevalent in the criminal justice systems of many countries around the globe. Their effects will be discussed in brief. Traditional sources of error, as some scholars call it, are only contributing sources and not the sole cause to the problem of wrongful convictions. The paper will attempt to shed light on the relationship between prosecutorial misconduct and wrongful convictions. It will also focus on the misconduct and delays that can often be seen during trials of persons of colour in the United States. It is important to note that there have been significant advances in the research aimed at remedying the said problem. But a root cause is yet to be ascertained.
The criminal justice system of every country has its basis on the strong thresholds of its effectiveness and fairness. Its effectiveness as a character is judged by the ability of the system to detect a crime, to investigate, to identify the wrong-doer and to apportion the required sanction on the persons who have been convicted of such offences. Its fairness as a character is judged by the thoroughness of the system, the efforts that are made to set right the imbalance caused and which prevails between the accused and the state while the procedure to mete out justice is still on-going. The justice system ensures this by providing evidentiary protection and an efficacious representation throughout.
Wrongful convictions sabotage the very foundation of the legitimacy that the criminal justice system enjoys. When someone is wrongfully convicted, that person is punished for an offence he or she did not commit while the actual perpetrator of the crime goes free. The confidence of the public and their opinion about the system takes a hit when such wrongful convictions are brought to light.
It is a known fact that the criminal justice system is based on the fundamental legal principle that an accused is presumed to be innocent until proven guilty. The accused has to always be given the benefit of the doubt. This principle finds itself directly in contradiction with the public expectation that most the persons who are charged with criminal offences are guilty and will be found to be guilty even by the courts of law. Wrongful convictions damage not only the fundamental principle of innocence but also the public expectation since they portray that the presumption of innocence may be honoured in its breach and that the criminal justice system does not only deal with the guilty.
Wrongful convictions are caused due to irregularities and incompetence during the investigation, trial and at the stage of appeal. To be more particular, there are contributory factors such as, false accusations, misleading police during investigation into the crime, incompetent defence counsel, misperceptions of State prosecutors of their role (dealing with the case in a very personal manner), assumption of an accused’s guilt by persons playing a vital role in the criminal justice system, the pressure that comes from the community for a conviction, inadequate identification evidence (faulty test identification parades), perjury, false confessions, inadequate, misinterpreted, missing forensic evidence, judicial bias, poor presentation of an appeal, and the level of difficulty in trying to get fresh evidence admitted in an appeal. Every time there comes to light a case of wrongful conviction, it only shows failures of the criminal justice system in different combinations that have prevented the effective and fair functioning of it.
When wrongful convictions are brought to light, they undoubtedly shake the integrity of the criminal justice system. As a result of this, the procedures that have been put in place for the review of such cases are extraordinary in nature and are rarely invoked successfully.
REVIEW OF LITERATURE
Surviving Justice: America’s Wrongfully Convicted and Exonerated– To begin with, I would like to say that this book simply gave me more reasons to dislike the justice system and the prison system in the US. It also made me question the practices followed here, in India. The book contains first-person narratives of men and one woman who was wrongly accused and convicted of major felonies in the US. They were later exonerated by attorneys from the Innocence Project, with the help of students of law, and a few of them who studied law on their own while being incarcerated. Each person in the book tells his story that includes the life that he lived before being falsely accused, to how he was arrested, how the trial happened, how he was sentenced to imprisonment and finally, how he was released. Throughout the book are sidebars on relevant and suitable legal, social, and psychological issues. The exonerated have different levels of anger against the system. Their belief in the criminal justice system also varies. But their sentiment, if considered overall, seems to be that the system can be, if not fixed, improved to a much greater extent.
Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions– The author of this book has limited himself to narrate the stories with the essential parts only. The most intriguing parts of the book are where the author discusses why certain members who play a role in the criminal justice system are prone to be an exhibit bias, why they let preconceived notions take the better of them, why they have biased beliefs, etc. It has a terrifying analysis of the system that claims to advance criminal justice. The chapter titled “tunnel vision” is very interesting as it portrays a culture that has existed in the system for ages and there is very little scope for change. Every judicial system is stacked against the person who is merely suspected of a crime and who hasn’t even been convicted yet. This book provides various instances in which the US criminal justice system has done the same. Most of the time, what leads innocent people to be convicted is the instances of there being false lie detector testing, witnesses pick-outs, and even sketches that are unambiguous. It is a known fact that prosecutors take pride in adding convictions to their credit. Public defenders, in the US particularly, have too many cases to deal with at a time and each case requires their attention but this is far from being possible as they cannot allow the needed time to each case nor do they have sufficient resources to investigate into the case.
Actual Innocence: When Justice Goes Wrong and How to Make it Right– For those of us who are staunch believers of awarding the death penalty as a punishment, it is important that we are exposed to the number of ways in which the criminal court systems could and do fail. Once we are made aware of such errors, it is very difficult to support the death penalty as a form of sanction. The book is divided into subchapters containing different types of judicial errors for easier reading. The book was written during the late ’90s and since then there has been an enormous change in the scope of the issue. The book also delves into what it was like when DNA testing as a kind of evidence, became a possibility for proving the innocence of convicts in courts of law. The authors lay out the significant failures of the criminal justice system in the US to locate and convict the actual criminals. The authors discuss how the identification of eyewitnesses can sometimes be extremely unreliable; instances in which there has been evident police and prosecutorial misconduct of a heinous degree; issues with being represented by effective counsel; and the overall attitude of society and legislators not being able to remedy these issues.
- Are false confessions a contributing factor to wrongful convictions? How can they be remedied?
- Does the State, in the pursuit of a successful conviction rate, engage in prosecutorial misconduct leading to wrongful convictions?
- Whether the socio-economic conditions of a section of the society, fuelled primarily by their lack of resources, and the notion that they belong to a different race, makes them more prone to become easy victims to wrongful convictions?
The mode of research is narrative and also correlational. The research is based on findings and conclusions derived from readings and references from various books, journals, and articles.
CHAPTER I – FALSE CONFESSIONS
1.1 FALSE CONFESSIONS AND WRONGFUL CONVICTIONS
When a person admits that he is guilty despite being innocent, and holding himself responsible for a crime, makes a statement that incriminates him is said to be a false confession. False confessions may occur due to reasons such as being coerced or being forced to give a particular statement; the mental incapacity of the accused may also be a factor. To the general public, it may seem that false confessions are highly unlikely to occur. But the truth is that they do occur regularly and may pose many threats during a criminal trial.
For instance, when a person admits guilt to a crime with the aim of diverting the court’s attention from the actual perpetrator of the crime, it is called a false confession. The reason behind such a confession is, to usually save a friend or a family member from being convicted for the crime that they committed; another reason may be that it is an attempt to avoid a more severe sentence.
There have been various researches conducted that not only prove that false confessions occur but also explain how they happen.Several studies that have been conducted since 1987 in the field of fallacious prosecutions have resulted in showing that 14% – 25% of the cases that are reviewed by the court involve false-confessions.
False confessions cannot be said to have any particular cause or logic behind them neither can they be classified into types. On the other hand, false confessions that are induced by the police or the law enforcement agencies are the result of a multiple step process that involves influencing the accuses, efforts of persuasion, forceful compliance and coercion that is psychological in nature. Police are more likely to obtain false confessions when other conditions collide with their interrogation, such as societal pressure to get a conviction for a crime. Also, certain types of individuals are more prone and vulnerable to face pressure during the process of investigation and are easily manipulated into confessing something that is far from being true.
1.2 UNDERSTANDING FALSE CONFESSIONS
The way that the police interrogate a potential suspect has a lot to do with the whole concept of false confessions. One must first try to understand the purpose of an interrogation – the collection of information or to obtain a confession and admission of guilt is the primary objective of the law enforcement agencies. Law enforcement officers use certain interrogation techniques out of which, one is referred to as the “Reid Technique” in the US. As per the Reid Technique, officers are to ask non-accusatory questions in order to determine whether the subject of the interrogation is telling the truth about their involvement in the crime. An accusatory form of interrogation takes place if the officers are convinced that the subject is involved in the crime. The questions are put in such a way that the subject admits his guilt.
Richard Leo, who is an expert in the area of identifying false confessions, opines that the Reid Technique is faulty and he also claims that it is “psychologically coercive”. He states that there are three major errors in the technique, they being –
1) Misclassification error occurs when the officer decides that an innocent person is guilty;
2) Coercion error occurs when, subjected to psychologically coercive factors (e.g., stress, fatigue, lengthy questioning, or mental or physical fatigue) the suspect feels that their only choice is to comply and admit guilt;
3) Contamination error occurs when, after admitting guilt, the police help create a narrative of the crime that includes facts than an innocent person would not know.
The case of the New York Central Park Jogger is well-known for having the element of false confession in it. In the year 1989, a female jogger, Trisha Meili, was found brutally beaten and raped in Central Park and was left for the dead. The police were under severe pressure to get hold of the offenders and make arrests at the earliest. Five people of colour, who were between the ages of 14 to 16 were reported to be seen in the park on the night that the crime happened. They were arrested and interrogated. The accused persons claim that they were forced by the investigators into giving false confessions that would implicate them and that they were deprived of any drink, sleep, and food for over a period of 24 hours. There was no other evidence that linked the youths to the crime. Even their confessions were accounts of the crime that were conflicting, there was no consensus between them. The accused persons, in this case, maintained the contention throughout, that they were innocent. But it was only in the year 2002, that a convicted murderer and serial rapist, Matias Reyes confessed to the crime. His DNA was matched to the genetic material found at the crime scene and the tests proved that it was hidden DNA. He also gave a detailed account of the crime scene as he had all the knowledge. But he could not be put to trial because the limitation period provided under the statute had expired.
A few suggestions to reform the manner in which interrogations take place can be made, in order to prevent innocent persons from confessing for crimes they didn’t commit. The simplest solution of all is that the entire process of interrogation must be recorded in order to determine whether coercion was used on the subject or not. Otherwise, it becomes very hard to prove such a claim. And certain techniques of interrogation that have been in practice must be limited in use, such as, lying to the subject about how the law enforcement agency already has forensic evidence that links the subject to the crime, and how easy it will be for them to implicate the suspect. This undoubtedly plays with the mind of the suspect. And sometimes, the interrogators also trick the suspect into believing that if they confess, their sentence will be reduced. Some scholars are of the opinion that, probably, even the duration of interrogation can be limited.
Confessions are highly incriminating and they help in proving the guilt of the accused. A false confession, on the other hand, is a dire element that tarnishes the very concept of justice and it hits the very crux of the possible innocence of the accused. Confessions also affect the general mindset and the perception of judges, judicial officials, and it will also have an effect on their decisions. The basic assumption about a confession that is detailed is that it is true. When a confession of an accused is placed as evidence before the court, it immediately creates a notion that the accused is guilty and the principle of ‘guilty beyond reasonable doubt’ that needs to be established by the prosecution loses its importance.
There is an irrefutable thought in the minds of the judge, jurors, the media and the society at large, that the accused is guilty when a confession comes to their notice. A confession will turn the criminal justice system around in such a way, that is directly standing against the accused and as a result of this, the treatment shown towards him might be extremely hostile during the stages of an investigation, trial, and appeal.This very tendency to treat the accused badly extends to prosecutors, judges and surprisingly, even to defense attorneys. It is highly likely that after such a confession is extracted from the accused, he will probably be kept under scrutiny while being imprisoned during the trial, he will be pressured to plead guilty of the offence and hence, will be convicted of a crime that he never did commit in the first place. After the obtaining of a confession, there is a certain bias that is created in the minds of the judicial officers and this bias is against the defendant as the entire case, the facts, evidence put forth, etc. will be evaluated by them in such a light which is not beneficial to the defendant.An error in a case of a false confession becomes extremely difficult to reverse with each stage that the criminal proceedings continue.
The whole procedure that needs to be followed in a criminal case is sabotaged once a confession is obtained. The police stop investigating the case and it is as good as solved. They do not make any further efforts to look for other leads on the crime or even evidence which may be sufficient to acquit the accused. Even in cases where the confession is inconsistent in itself and when there is other evidence which contradicts the confession, the officers do not take into consideration these circumstances which may actually help in the acquittal of the innocent accused. It is merely defective and faulty behavior on the part of the law enforcement to not give due consideration to any evidence that emerges which suggests the innocence of the accused and that the confession is false.
Prosecutors reject all possibilities of there being a false confession. And they do not even buy the idea of police-induced confessions and they often refuse to even believe such an occurrence, even after DNA evidence has been proved and is in favor of the innocence of the defendant.There is also a tendency to press a high number of charges for different offenses and set an exorbitant amount for bail. Prosecutors in high profile cases are also not inclined to accept a bargain of a plea or to reduce charges filed.The confession forms the very crux of the case of the prosecution. The accused is also given differential treatment by the defense attorneys, who try pressuring him to accept a plea of guilty in order to avoid a higher sentence.Judges are already so conditioned to disbelieve a defendant’s claim of innocence that they even refute any claim put forth about police misconduct. Even the most questionable and conflicting confessions are not suppressed by the judges. Evidence of a false confession is prejudicial to the kind of fate that an innocent person is likely to meet with in any criminal justice system around the world.
To conclude, various interrogation techniques do, sometimes, lead to false confessions from innocents, the consequences of which will be devastating and detrimental to the fate of the individual. Law enforcement officers need to be trained about false confessions. A hearing can be conducted to look into whether the confession is actually credible and whether the conviction can be based on it. Provisions which extend the scope of expert witness testimony need to be incorporated in statutes as well as in judicial decisions. The judges in sensitive cases relating to false confessions should be briefed and cautioned about the kind of damage and impact that their decision can make. Additional safeguards need to be provided for the sections of the population who are vulnerable due to their mental unsoundness or even juveniles for that matter who are not capable of completely understanding the process of law.The misconception that only people who are guilty confess to the crimes that they have committed needs to be removed from the minds of people. there are several incidents where persons who are absolutely innocent and have no nexus to a crime have confessed.
1.3 TACKLING FALSE CONFESSIONS IN LITIGATION
Lawyers apply a variety of strategies to cases where the defendant is likely to face conviction based on a false confession. The first thing that a defense lawyer should do is to develop a theory of the case by educating himself about how the law enforcement agency interrogates suspects and obtains their statements and confessions. Police training materials may also be obtained to gain a better perspective. Retired police officers may be consulted about how the police department trains interrogators in cases where it is deemed necessary. As a defense attorney, one must gather evidence to corroborate as much as possible about what the client experienced during interrogation. In cases where interrogations have not been recorded or videotaped, the whole procedure must be reconstructed. In cases where there is a recording available, it can be played for the client to listen to, and the lawyer may take notes about how the client was feeling during interrogation, and what instigated the client to give in to confessing. A background check of the officers who were involved in the interrogation can also be done and the practices and techniques that they followed can be compared to the prescribed standards to see if there are any discrepancies. Any evidence which helps to prove previous unlawful, unethical or violations behavior on the part of the officers involved will be helpful as well.
Expert witnesses also find a role to play in false confession cases. A clinical psychologist may be called in to interview the defendant and to evaluate whether he was an easy target of the interrogators as he seemed vulnerable to the techniques and methods being used. Most of the time, false confessors are easily induced by the police. A social scientist may be called in to testify after he is done reviewing the interrogation and the statement of the defendant. The expert will also be in a position to testify about how certain techniques of interrogation are likely to result in a false confession being obtained based on researches conducted.
As an attorney, developing a theory to the case must incorporate all the facts and ingredients of the case and prove that the confession acquired against the defendant is false and wholly a product of a coercive technique used by police authorities and interrogators to make an innocent person confess to a crime they did not commit. The confession should be talked about in the opening statement of the defense counsel. If a judge rejects the very idea that an innocent person may be induced to give a false confession, he needs to be tackled smartly. The key parts of the interrogation may be re-enacted in the court in order for the judge to have a clearer understanding of how the interrogation was actually conducted.
2. PROSECUTORIAL MISCONDUCT
Prosecutorial misconduct occurs when a prosecutor breaks a code of professional ethics. It means that the prosecutor steps out of his delineated limits of a certain standard of fairness and decorum that he is expected to follow during the prosecution of a criminal case. it is the job of the prosecutors to hold the criminal accountable for their criminal activities. They work closely with the law enforcement agencies to gather evidence about the crime and to build a case to convict the accused.
On most of the occasions, prosecutors come across certain evidence in a case that is likely to exonerate the accused i.e., the person that they are working so hard on convicting. Technically, prosecutors must present all evidence before a court and let the judge decide. But they do not do it, which then leads to an innocent getting convicted and sentenced.
2.1 INSTANCES OF PROSECUTORIAL MISCONDUCT
Prosecutors and the defense counsels are given a wide scope during the closing arguments or final arguments of a case. Prosecutors in certain instances, make improper statements during their final arguments which undoubtedly leaves a huge impact on the judge and is capable of interfering with his decision. Prosecutors have been seen to have made wrong and misleading statements relating to evidence. In a certain case, the prosecutor, in his conclusive argument stated that diapers were not found in the victim’s house. But the reality was that there was no evidence to indicate or corroborate this claim. The truth was, there was absolutely nothing to prove either that diapers were found or they were not found. A prosecutor is also forbidden from expressing or putting forth their own opinion or belief in relation to the guilt of the defendant or the credibility of the testimony. In a certain case, a statement by a prosecutor where he said that an officer who testified in court was telling the truth; the court held this statement to be “improper vouching”. Personal opinions of prosecutors are usually prohibited as they are not sworn and also, it tarnishes the very objective that, be it a prosecutor or a defense lawyer, they need to be detached from the case that they are advocating, which leaves no space for their personal beliefs to be showcased. The prosecution must also abstain from calling the defendant using any derogatory terms. It is also improper to term the defendant as a liar. The prosecution also needs to abstain from making any remarks or statements which are likely to divert the judge’s mind from deciding the case based on the evidence put forth. It would be deemed as improper if a prosecutor makes any sort of comment on the consequences that an acquittal of the defendant might have.When an argument or a statement of a prosecutor is prima facie improper, it needs to be objected by the defense counsel. If the defense counsel decides to remain silent at such a moment, it would amount to waiving off the rights of the accused and the right of the counsel to object. It might be of importance when the case goes for appeal because the higher court will look into the fact whether an objection was raised or not. And it will also instil a sense of hope in the accused that his lawyer is fighting to grant him justice.
2.2 LACK OF REMORSE
Remorse is a mitigating factor. A prosecutor is allowed to argue that remorse on the part of the defendant is lacking but he is not allowed to argue that the lack of remorse is an aggravating factor. A prosecutor cannot say that it shows a lack of remorse on the part of the defendant when he failed to confess. But it may be argued that the defendant by being untruthful, showed a lack of remorse. It may also be argued that the defendant did not show remorse during the trial, even after evidence has been presented by the defense to show remorse. In a certain case, the prosecutor stated that the defendant confessed because he was aware that he was the suspect in the crime and not because he felt remorse.
3. RACE AS A CONTRIBUTING FACTOR
People of colour are not adequately represented at various stages of the criminal justice system. These stages range from being arrested to being convicted of the crime and to be imprisoned after. There have been various researches that have been conducted that show that the levels of involvement of White people and African-Americans are similar in offences that are of a non-violent nature (which includes possession of drugs, arms, etc). a major factor that goes wrong in cases relating to people of colour is that of eyewitness misidentification and cross-racial misidentification.
It is also highly likely that people belonging to minorities are arrested when they were juveniles. And the chances of them giving false confessions which are incriminating occurring are high. It is very easy to manipulate a juvenile into saying something that the law enforcement wants to hear.
Although DNA science has proved to be efficient and is capable of correcting injustices in cases of wrongful convictions, even after the innocent persons are exonerated, they face severe problems in trying to lead in normal life and be a part of the society.
MISCONDUCT AND DELAY
There are two racial differences in murder exonerations with respect to defendants who are people of colour. These are official misconduct and delay in exoneration. There are many types of misconduct such as concealing evidence which is exculpatory in nature (known as a Brady Violation in the United States). Witness tampering is also done in most cases, sometimes, witnesses are threatened into giving false testimony. Perjury by state officials, law enforcement officers are also common.
As the general public, we are only aware of the cases in which misconduct has occurred due to the fact that there exist documents that have been reported and that are accessible to us. But official conduct in criminal cases is not usually reported as there is a deliberate attempt to conceal it which is why it remains in the dark.
There is a longer delay in exonerating people of colour as compared to people who are white. The reason behind this might be because the law enforcement and the authorities, in general, resist exonerations when they know that there was official misconduct involved. It almost seems as though convictions in cases where African-Americans are involved are likely to be more influenced merely by the race that they belong to and not just official misconduct.
In the year 1984, two boys, aged 19 and 15, the latter being a half-brother of the former, were sentenced to death in North Carolina for the rape and murder of an 11-year-old girl. The boys had just been in North Carolina as they were visiting their relatives. But due to pressure from police, they ended up confessing falsely as they were intellectually disabled as well. But there was no physical evidence that connected them to the crime. Their exoneration came after almost spending 31 years in prison.
Ever since there have been empirical studies on the subject of wrongful convictions, there have always existed two questions: a) what are the causes of wrongful convictions? b) how can they be remedied? It is of no doubt that there have been extremely significant advances that have been made in the criminology of a miscarriage of justice. But there still remains no substantial works of literature on these questions which is why it is all the more essential to have a root cause analysis of the issue.
The general public’s knowledge and understanding of the subject need to be advanced and this is possible only when theoretical and empirical research is conducted by social scientists and criminologists. These studies must not only focus on the miscarriage of justice but also on the cases of real criminals involved that are dismissed or when the guilty are acquitted by the courts of law. Additional research needs to be conducted on how experiences of victims to such miscarriage of justice vary.
Prosecutorial deviations from the high standards that have been set for professional conduct often occur when the prosecutors withhold certain information or evidence that can prove to vindicate the innocent convict; when witnesses and evidence are tampered with; when the prosecutors engage in conduct that is unacceptable. Their actions must be scrutinized by means of an agency that should exclusively be set up by the government for this purpose.
In cases of wrongful convictions of people of colour, there is a high risk of eyewitness misidentification which is a result of cross-racial misidentification. This is seen in cases of sexual assaults and murders. Defendants in such cases also face discrimination and there is always an element of bias. Sometimes, this discrimination is very subtle in nature and is not easy to spot. There may also be unconscious bias in the minds of officials. And then, there are a few cases in which racist feelings are explicitly shown.
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