Convicting the Innocent

27 Pages Posted: 4 Mar 2008 Last revised: 5 Dec 2008

See all articles by Samuel R. Gross

Samuel R. Gross

University of Michigan Law School

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We've learned a lot about false convictions in the past 30 years. For example, we now know that more than 2% of death sentences in America are based on false convictions, that innocent African American men are more likely to be falsely convicted of rape than innocent white men, especially if the victim is white, and that innocent teenagers accused of murder are more likely to falsely confess than innocent adults. We also know that prosecutorial misconduct and ineffective legal defense are common in the cases of innocent defendants who are convicted of rape and murder, as are eyewitness misidentifications, false confessions, fraud or error by forensic analysts, and perjury by jailhouse informants.

But there is much more that we do not know. Almost everything that we have learned about false convictions is based on exonerations in rape and murder cases, which together account for only 2% of felony convictions. The exonerated defendants we know about were almost all convicted at trial rather than by guilty plea (unlike the vast majority of convicted defendants, even in rape and murder cases), and sentenced of death, life imprisonment, or decades behind bars. Our image of a false conviction is derived from these exonerations: a heinous crime of violence for which an innocent defendant is convicted at trial, after a difficult and troubled investigation, and sentenced to death or life in prison. There is every reason to believe that the vast majority of false convictions bear little resemblance to this picture.

This article explores some of the categories of false convictions that almost never come to light: innocent defendants who are convicted of crimes that did not occur (as opposed to crimes committed by other people), who are sentenced in juvenile court, who plead guilty, who receive comparatively light sentences - in fact, almost all innocent defendants who are convicted of any crime other than rape or murder. Judging from what we can piece together, most false convictions are not dramatic errors caused by recklessness or serious misconduct, but commonplace events: inconspicuous mistakes in ordinary criminal investigations that never get anything close to the level of attention that sometimes leads to exonerations.

Keywords: wrongful convictions, exonerations, criminal prosecution

Suggested Citation

Gross, Samuel R., Convicting the Innocent. U of Michigan Public Law Working Paper No. 103, Annual Review, 2007, Available at SSRN:

Samuel R. Gross (Contact Author)

University of Michigan Law School ( email )

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