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Abstract:
The 170-plus postconviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent. The specific problems include eyewitness error and flawed eyewitness procedures, false confessions, forensic error or fraud, police and prosecutor misconduct, inadequate defense counsel, jailhouse snitch testimony, and others. A theme running through almost every case, that touches each of these individual causes, is the problem of tunnel vision.

Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system. This Article analyzes tunnel vision at various points in the criminal process, from police investigation through trial, appeal, and postconviction review. The Article examines the causes of tunnel vision in three domains. First, tunnel vision is the product of natural human tendencies - cognitive distortions that make it difficult for human beings in any setting to remain open-minded. Second, institutional or role pressures inherent in the adversary system can exacerbate the natural cognitive biases, and induce actors to pursue a particular suspect too soon or with too much zeal. Finally, in some ways the criminal justice system embraces tunnel vision as a normative matter; it demands or teaches tunnel vision overtly, as a matter of policy or rule. This Article concludes by examining possible corrective measures that might be adopted to mitigate the effects of tunnel vision.

tunnel vision, wrongful convictions, innocence, cognitive distortions

Abstract:
The service and policy missions of innocence projects have received considerable scholarly attention. Relatively little, however, has been written about the pedagogical mission of innocence projects as law school clinical programs. This article examines the pedagogical challenges and opportunities presented by clinical programs that investigate and litigate large, complex innocence cases. First, the article analyzes what innocence projects can and should teach law students, including lessons about facts and investigation skills; about the need for thoroughness and skepticism, and what that means in practice; about essential values of the profession, and about the risk that the narrow focus on representing only the innocent might convey unintended messages about the value of legal representation to all criminal defendants; about ethics; about doctrine and a critical perspective of legal institutions; and, finally, about judgment. Second, the article considers how innocence projects might meet those educational objectives. Among other things, the article probes how innocence projects - and other similar large-case clinical programs - can manage the traditional tensions between the goal of nondirective student supervision, including the need to allow students to gain ownership of their cases, and the responsibility of ensuring quality representation to the clients in these complex cases, in which so much is at stake.

pedagogy, innocence projects, clinical education, large-case clinical programs

Abstract:
From America's inception through the Civil War, legal education was entirely practice-oriented; it was based not on academic study at a university, but consisted almost exclusively of apprenticeship with a practicing lawyer. As the study of law moved from apprenticeships in law firms to university-based law schools, the method of study became more theoretical. After the 1870s, Langdell's case method became the dominant model of studying and teaching the law. Gradually, law schools became more abstract and theoretical, and less grounded in the practice of law. Increasingly, practicing lawyers and judges complained that law schools were not preparing law students who were ready for the practice of law in terms of either the skills or the values necessary for effective practice. This article explores the history of legal education, the calls for greater relevance, and the ways law schools such as the University of Wisconsin can reform their curricula to respond to these concerns.

curriculum reform, legal education, clinical education, Langdell, Socratic method, case method

Abstract:
Although the American criminal justice system purports to put most risk of error on the prosecution, in reality the system places considerable risk of error on criminal defendants, particularly innocent defendants. This imbalance begins at the investigation stages of criminal cases and continues at every stage of the criminal justice process. This imbalance is strengthened by cognitive biases and systemic pressures that create tunnel vision, by resource inequities, and by some rules of procedure and evidence. This article, which will be published in 38 Seton Hall Law Review, surveys the variety of ways in which the system creates such imbalance and poses risks to innocent defendants. It focuses particularly on the way we use and provide access to forensic sciences that can sometimes lead to mistaken convictions of the innocent. The article concludes with recommendations for new administrative mechanisms that go beyond traditional adversarial testing to improve the reliability of forensic science evidence.

Innocence, wrongful conviction, forensic science, tunnel vision

Abstract:
In the criminal justice system we have become accustomed to thinking in terms of a conflict between society's interest in convicting the guilty and the rights of criminal defendants. This conflict is perhaps best captured by Herbert Packer's competing Crime Control and Due Process Models of criminal justice. In recent years, postconviction DNA testing and other forms of new evidence have exposed a surprisingly large number of wrongful convictions of factually innocent people. The resulting Innocence Movement has pushed for reforms to reduce the rate of factual error. Those efforts have caused some to ask if we can indeed convict fewer innocents without acquitting too many guilty people. That question is premised on a paradigm of competing goals, such as those posited by Packer's two models. This article responds to that question in two ways. First, it suggests that the question, at least to a large degree, is the wrong question to ask under our constitutional system. Our constitutional system chooses protecting the innocent as a highest-order value, which preferences innocence protection over convicting wrongdoers. Second, confronting the question on its own terms, it suggests that the answer is yes, we can reduce the number of wrongful convictions without sacrificing too many convictions of the guilty. Indeed, the Innocence Movement shows that those goals are not inherently contradictory; rather, they are quite complementary. In this sense, the Innocence Movement alters our understanding of the criminal justice system by giving us a new paradigm - a Reliability Model based on best practices - which supplants and transcends the competing Crime Control and Due Process Models.

DNA, innocence, crime control, due process, wrongful conviction, eyewitness identification, false confessions, jailhouse snitch, informant

Abstract:
Perhaps the most lasting significance of the DNA exoneration cases is the lessons they can teach about flaws in the criminal justice system. In the United States, however, little systematic inquiry is made into what went wrong following a wrongful conviction. This article examines several models for structuring the inquiry into the flaws in the criminal justice system exposed by the DNA exonerations.

Exonerations, wrongful convictions, innocence, innocence commissions, DNA categories: Criminal Law & Procedure