Negotiating Accuracy: DNA in the Age of Plea Bargaining
Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (ed., Daniel Medwed), Cambridge University Press, Forthcoming
17 Pages Posted: 20 Nov 2015
Date Written: November 19, 2015
Hundreds of exonerations have made DNA a kind of poster child for the innocence movement and the demand for more accurate evidence in criminal cases. But most wrongful convictions are not simply the result of evidentiary mistakes. In the marketplace of plea bargaining, convictions are the result of numerous inputs — a defendant’s criminal record, prosecutorial bargaining habits, the size of the trial penalty, whether the defendant is out on bail — that have nothing to do with the accuracy of the evidence. The bargained nature of these convictions means that accurate evidence is just one piece — and not always the most important piece — of the larger negotiation process that establishes guilt. We might say that the plea process is structurally tolerant of inaccuracy, precisely because it transforms accuracy into a commodity that may be traded and negotiated away in exchange for agreement. This is a recipe for wrongful conviction. The innocence movement, for example, has uncovered numerous cases where innocent defendants pled guilty to homicide and rape in order to avoid the death penalty. The pressures to plead are likewise pervasive in the misdemeanor system, in which thousands of people are rushed through assembly-line processes and routinely plead guilty to minor crimes of which they are demonstrably innocent. Ultimately, we should recognize plea bargaining as a source of wrongful conviction in its own right, and add it to the canonical list of wrongful conviction sources such as mistaken eyewitness testimony, lying informants, and bad forensics.
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