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Abstract:
Scholars documenting the incidence and causes of wrongful convictions in the United States have focused on cases arising all across the country. Because reform of the practices that lead to such errors of justice must largely take place on the state level, there is value in examining wrongful convictions in particular jurisdictions. This article attempts to identify and briefly describe all known cases of conviction of innocent persons in Massachusetts from 1800 to the present time. Part I discusses the criteria for identifying "the innocent." For the purpose of gaining support for needed reforms in the law, the most persuasive cases are "undisputed" exonerations, in which responsible judicial or executive officials have endorsed the prisoner's factual innocence. Part II identifies and describes fifteen such cases, including four exonerations by DNA evidence. However, confining attention to "undisputed" exonerations excessively narrows the inquiry by excluding legislative exonerations, and other cases which most cautious observers would view as involving conviction of the innocent. Therefore, Part II describes eighteen additional cases in which official endorsement was lacking: a group of twelve cases (including two involving DNA evidence) in which the prisoner's conviction was vacated under circumstances raising strong doubts as to factual guilt, and a group of six cases, also characterized by such doubts, in which the convict was either executed or died in prison.

Part III explores the implications of these cases for law reform. Although only thirty three cases were found, some greater unknowable number of miscarriages undoubtedly exists. Over half of the Massachusetts wrongful convictions involved capital crimes, including three in which the exonerations were undisputed. Most of the prisoners served substantial sentences before being released. Two died in prison, and four were executed. In keeping with the data derived from nationwide studies, over half of the Massachusetts wrongful convictions involved mistaken identification. Other prominent causal factors in the Massachusetts cases included suppression of exculpatory evidence, police misconduct and witness perjury.

Some of the procedural reform needs suggested by these cases include adoption of nationally-recognized safeguards in the conduct of eyewitness identification procedures, more rigorous requirements for the contemporaneous recording of police investigative interviews, and structured prosecution access to both inculpatory and exculpatory evidence gathered by the police. The cases also demonstrate the need for legislation authorizing state compensation and rehabilitative services for exonerated prisoners, and an Innocence Protection Act that would regulate the procedural rights of prisoners seeking to establish their innocence through DNA or other forensic testing. Finally, in order to learn from the system's tragic mistakes, Massachusetts should follow the example of jurisdictions that have appointed official commissions to investigate the causes of particular miscarriages of justice.

DNA exoneration, innocence, wrongful convictions, mistaken identification, exculpatory evidence, police misconduct, eyewitness identification, miscarriage of justice, DNA evidence

Abstract:
Like many other states, Massachusetts has recently known a number of acknowledged miscarriages of justice. This article examines one of them, the Marvin Mitchell case, in order to ask two questions: "What went wrong?" and "What systemic reforms might have prevented this injustice?" In seeking ideas for reform, we look to English law.

In 1990 Marvin Mitchell was convicted of rape in Massachusetts. Seven years later he became the first Massachusetts prisoner to be exonerated by DNA testing. In this article we describe the two key factors leading to Mitchell's wrongful conviction: faulty eyewitness identification procedures, and inadequate safeguards surrounding the recording and disclosure of Mitchell's allegedly incriminating statements to the police. We then ask how English prosecutors and courts would have responded to a police investigation conducted in the same way as Massachusetts police handled Mitchell's case. After describing the English safeguards applicable to eyewitness identification procedures and to the taking of suspects' statements to the police, we conclude that the investigatory flaws in Mitchell's case would have led to a radically different result in England: it is unlikely that Mitchell would even have been prosecuted, let alone convicted, for the crime with which he was charged.

In view of the fact that a number of Massachusetts miscarriages of justice have resulted from unreliable eyewitness identification procedures, and from eleventh-hour revelations of previously undisclosed incriminating statements by defendants, we argue that Massachusetts should consider adopting stronger safeguards to protect the innocent from police error or abuse. In doing so, the state should look to English experience for plausible models.

miscarriage of justice, criminal law, eyewitness, identification procedures, police interrogation procedures, comparative law, English law, DNA exoneration

Abstract:
The Supreme Court in Kyles v. Whitley affirmed the prosecutor's duty under Brady v. Maryland to disclose exculpatory evidence to the defense, even if the police have not revealed the evidence to the prosecutor. According to the Court, prosecutors are responsible for ensuring that police communicate relevant evidence to her office. How should prosecutors implement that responsibility? Both England and the United States require prosecutors to disclose exculpatory evidence known to the police, but they take radically different approaches to implementing the prosecutor's duty. The English have legislated a comprehensive regulatory framework for police record keeping and revelation of case information to the prosecutor. They have also devoted significant resources to enforcing this regulation, including such measures as promulgation of appropriate forms and schedules, training of police and prosecutors, and the designation of particular police personnel to perform record-keeping duties. In the United States, by comparison, the absence of legislative or other regulation of police record keeping is starkly apparent. American legislatures have traditionally taken a "hands-off" approach to the regulation of police practices. Furthermore, we have not committed significant resources to the task of training police to record and reveal exculpatory evidence to prosecutors. Instead, we have relied on self-regulation by law enforcement agencies and the efforts of prosecutors. Neither resort has been, nor promises in future to be, effective in ensuring regular prosecutorial access to exculpatory evidence known to the police. Yet, without such access, prosecutors cannot meet their constitutional obligations to the defense. To address this problem, the author proposes amending ABA Model Rule 3.8 and the ABA Standards for Prosecution 3-2.7 and 3-3.11. The proposed amendments would (a) articulate the prosecutor's responsibility to make reasonable efforts to obtain access to exculpatory evidence known to the police, and (b) guide prosecutors on how to implement this professional responsibility.

Abstract:
This article examines the impact of new scientific learning upon police eyewitness identification procedures in Massachusetts. Much has been written about the case for procedural reform, but little about how it can be accomplished in states with fragmented systems of local policing. We know even less about how reforms, once adopted, are implemented. This article explores both the factors leading to reform of eyewitness identification procedures in Massachusetts, and their implementation.

Between 1997 and 2004, local media publicized a number of prisoner exonerations in Massachusetts, many of which resulted from mistaken eyewitness identification. As a result, legislative bills were filed to require identification reforms, and pressures arose to establish a state "innocence commission" armed with subpoena power. In response, a number of district attorneys held trainings in reform procedures for police departments in their counties. This article examines obstacles to the spread of reform practices statewide, including: 1) the decentralized system of law enforcement, which allows each police department discretion to choose its methods of criminal investigation; and 2) the failure of police training authorities to enforce statewide training according to a uniform curriculum. Finally, the article describes a pilot study to learn how police in two "reform" counties have implemented reforms in photo array procedures. A review of 197 public defender felony case files revealed 53 in which police conducted and documented eyewitness identification procedures. The study suggests that 1) patterns of compliance and non-compliance exist; 2) most police failed to obtain statements of witness confidence in both photo arrays and field show-ups; 3) in one county, a problematic pattern might exist of conducting non-blind photo-arrays sequentially. In conclusion, the article proposes steps to expand adoption and improve implementation of reform procedures.

police training, eyewitness identification, law reform, criminal investigation, wrongful convictions, misidentification