The Path to Exoneration

49 Pages Posted: 24 Nov 2015 Last revised: 30 Oct 2016

Jon B. Gould

American University - School of Public Affairs; American University - Washington College of Law

Richard A. Leo

University of San Francisco - School of Law

Date Written: November 1, 2015

Abstract

This article is the first systematic empirical study of how the American criminal justice system discovers and responds to factual error based on actual innocence. The study analyzes a data set of 260 cases of wrongful conviction of the innocent and 200 near misses (i.e., dismissals and acquittals involving an innocent defendant) to better understand the sources of and bases for exoneration; who is responsible for, as well as who opposes, exoneration; the statistical correlates of exoneration; and the primary methods and mechanisms involved in the path to exoneration.

This study leads to several findings. First, wrongful convictions are difficult to reverse in the absence of dispositive evidence of innocence. The vast majority of exonerations relied on one or two bases, and even then most required DNA evidence. Second, the adversarial nature of the criminal justice system continues from the trial level to subsequent efforts to exonerate the innocent. Police and prosecutors maintain their roles, infrequently playing a central part in investigating or advocating for exoneration and serving as the largest combined source of opposition to exonerations. Finally, exonerations take a long time, even longer when based on DNA evidence, which appears to be the primary basis for clearing defendants.

After examining these findings, the authors advocate for the following changes in the United States criminal justice system: 1) police and prosecutors must take a more active role in the review and reversal of factually erroneous convictions; 2) additional juridical proceedings are needed for the wrongly convicted to prove their innocence even after conviction; 3) efforts must be made to prevent wrongful convictions at the front end because the resources for freeing the wrongly convicted are so limited and the path to exoneration following conviction is filled with formidable challenges.

Keywords: criminal law, criminal procedure, criminal justice reform, exoneration, wrongful convictions, empirical studies

Suggested Citation

Gould, Jon B. and Leo, Richard A., The Path to Exoneration (November 1, 2015). Albany Law Review, 2016 Forthcoming; American University School of Public Affairs Research Paper No. 2016-02; Univ. of San Francisco Law Research Paper No. 2016-03. Available at SSRN: https://ssrn.com/abstract=2694709

Jon B. Gould

American University - School of Public Affairs ( email )

Washington, DC 20016
United States

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

Richard A. Leo (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

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