Cultivating Judgment on the Tools of Wrongful Conviction

Abstract

Wrongful conviction remains a vexing problem. There are hundreds of reports of wrongful convictions from across the country, and the reasons for these mistakes run the gamut from faulty forensic science, to mistaken eyewitness identifications, to police or prosecutor misconduct. Yet establishing the legal or factual error necessary to achieve exoneration in these cases can be tremendously difficult. Wrongfully convicted defendants face a number of hurdles. Not only must they discover significant factual or legal error, but they also are straightjacketed by procedural impediments and appellate judges’ limited abilities to right wrongful convictions. Wrongfully convicted defendants are further constrained by a generally limited understanding of the sources of wrongful conviction and some legal decisionmakers’ reluctance to accept the significance of the wrongful conviction problem.

This Article outlines the major contributors to wrongful conviction and describes some procedural hurdles to reversing these convictions. It argues that, although there has been significant progress in addressing some of these problems, there is still more work to do in this area. Perhaps most important is educating legal decisionmakers and changing the culture of turning a blind eye to the problem. And this education should extend further than to just the possible sources of wrongful conviction. As conviction tools evolve, judges need to be able to stay abreast of new possible sources of error. Accordingly, judges, as well as other legal decisionmakers, should learn how to critically assess the tools of conviction — how to read the literature on which fingerprint evidence is based or review studies blowing holes in the infallibility of eyewitness testimony, for example. Also critical to this education is furthering the research upon which it is based. As many recent exonerations have demonstrated, many of our tools of conviction require a more substantial scientific footing — especially if we are going to base the deprivation of life or liberty upon this evidence. Understanding the pernicious role of explicit and implicit biases in legal decisionmaking, too, is central to understanding the wrongful conviction problem and beginning to address it. This education, along with a willingness to accept that there is a problem, is the necessary foundation for mitigating the perpetuation of a system tolerant of wrongful convictions.