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Convicting the Innocent Redux

D. Medwed, Ed., Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (Cambridge University Press, Forthcoming)

Virginia Public Law and Legal Theory Research Paper No. 39

16 Pages Posted: 3 Aug 2015 Last revised: 21 Aug 2015

Brandon L. Garrett

University of Virginia School of Law

Date Written: August 1, 2015

Abstract

My book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” published in 2011, tells the story of the first 250 DNA exonerations in the United States. There have now been 330 DNA exonerations. There is no other country in the world in which such a large group of people have been exonerated by DNA evidence. This Chapter updates data collected when researching the book, and in many respects, the patterns remain the same. Many faced quite severe sentences. Twenty exonerees had been sentenced to death. Ninety-two were sentenced to life in prison, 12 of which were sentenced to life without parole. The vast majority, 80 percent of these DNA exonerees, were racial minorities. There have been some notable changes in the composition of the most recent set of DNA exonerations. The more recent DNA exonerations include far more murder convictions than the first 250 DNA exonerations. These changes have impacted the types of evidence prominent in the cases. Similarly high percentages of cases involve eyewitness misidentifications (70%) and forensics (69%). Most striking, more of the cases include false confessions (21%) and informant testimony (22%). Many of the most recent exonerations were particularly hard fought along the path to eventual exoneration. Often because prosecutors were swayed by confession evidence they continued to litigated cases for years, even despite DNA tests results. Indeed, 22 of the recent 80 cases involved DNA analysis, 18 of which DNA exclusions of individuals that were nevertheless convicted; 3 more of which involved DNA exclusions concealed from the defense, and one more case, which involved a sample mix-up leading to an error in DNA analysis. Of the 227 cases that involved forensic evidence, 46% or 105 cases, involved invalid, erroneous, or concealed forensics. Almost half of the cases with eyewitness identifications involved cross-racial identifications. Twenty-nine of these inmates received vacaturs during appeals or post-conviction occurring prior to their DNA exonerations, representing 14% of the 204 that had written decisions published by judges. These most recent exonerations are particularly troubling, because some of the same underlying practices that can lead to wrongful convictions are with us today, even if reforms are spreading and attitudes towards criminal justice are shifting.

Keywords: Wrongful convictions, DNA exonerations, eyewitness misidentifications, false confessions, informants, forensics

Suggested Citation

Garrett, Brandon L., Convicting the Innocent Redux (August 1, 2015). D. Medwed, Ed., Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (Cambridge University Press, Forthcoming); Virginia Public Law and Legal Theory Research Paper No. 39. Available at SSRN: https://ssrn.com/abstract=2638472

Brandon L. Garrett (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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