Government Misconduct and Convicting the Innocent, The Role of Prosecutors, Police and Other Law Enforcement

218 Pages Posted: 13 Nov 2020 Last revised: 19 Dec 2023

See all articles by Samuel R. Gross

Samuel R. Gross

University of Michigan Law School

Maurice Possley

University of California Irvine

Kaitlin Roll

affiliation not provided to SSRN

Klara Stephens

Independent

National Registry of Exonerations

Michigan State University - College of Law; University of Michigan Law School; University of California, Irvine School of Law

Date Written: September 1, 2020

Abstract

This report examines the role of official misconduct in the conviction of innocent people. It is based on first 2,400 exonerations listed in the National Registry of Exonerations: cases in which a person who was convicted of a crime was officially and completely cleared based on new evidence of innocence. The Report is limited to misconduct by government officials that contributes to the false convictions of defendants who are later exonerated—misconduct that produces unreliable, misleading or false evidence of guilt, or that conceals, distorts or undercuts true evidence of innocence.

The Report organizes the myriad types of misconduct into five general categories, roughly in the chronological order of a criminal case, from initial investigation to conviction: Witness Tampering; Misconduct in Interrogations of Suspects; Fabricating Evidence; Concealing Exculpatory Evidence; Misconduct at Trial.

Official misconduct contributed to the false convictions of 54% of defendants who were later exonerated. In general, the rate of misconduct is higher in more severe crimes. Concealing exculpatory evidence—the most common type of misconduct—occurred in 44% of exonerations. Black exonerees were slightly more likely than whites to have been victims of misconduct (57% to 52%), but this gap is much larger among exonerations for murder (78% to 64%)—especially those with death sentences (87% to 68%)—and for drug crimes (47% to 22%).

Police officers committed misconduct in 35% of cases. They were responsible for most of the witness tampering, misconduct in interrogation, and fabricating evidence—and a great deal of concealing exculpatory evidence and perjury at trial. Prosecutors committed misconduct in 30% of the cases. Prosecutors were responsible for most of the concealing of exculpatory evidence and misconduct at trial, and a substantial amount of witness tampering. Forensic examiners committed misconduct in 3% of exonerations, and child welfare workers in 2%. Disciplinary actions against officials who committed misconduct were uncommon for all types of officials, and especially so for prosecutors.

For most types of misconduct, we have insufficient data to date to identify changes over time. There is, however, strong evidence that a few kinds of misconduct have become less common in the past 20 years: violence and other misconduct in interrogations; abusive questioning of children in child sex abuse cases; and fraud in presenting forensic evidence. On the other hand, the number of federal white-collar exonerations with misconduct by prosecutors has been increasing.

We conclude that the main causes of misconduct that contributed to the false convictions of these exonerated defendants were pervasive practices that permit or reward bad behavior, lack of resources to conduct high quality investigations and prosecutions, and ineffective leadership by those in command. We discuss a range of possible remedies, from specific new rules governing investigations to changes in the work culture of law enforcement officers in particular agencies, in counties and states across the country, and in the nation as a whole.

Keywords: Prosecutorial misconduct, police misconduct, official misconduct, exonerations, wrongful convictions, criminal investigations, criminal convictions, forensic evidence

Suggested Citation

Gross, Samuel R. and Possley, Maurice and Roll, Kaitlin and Stephens, Klara and Registry of Exonerations, National, Government Misconduct and Convicting the Innocent, The Role of Prosecutors, Police and Other Law Enforcement (September 1, 2020). U of Michigan Public Law Research Paper No. 21-003, U of Michigan Law & Econ Research Paper No. 21-003, Available at SSRN: https://ssrn.com/abstract=3698845 or http://dx.doi.org/10.2139/ssrn.3698845

Samuel R. Gross (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-764-1519 (Phone)
734-764-8309 (Fax)

Maurice Possley

University of California Irvine ( email )

Division of Nephrology, University of California I
101 City Drive South, City Tower, Suite 400-ZOT;40
Orange, CA California 92868-3217
United States
312-208-0357 (Phone)

Kaitlin Roll

affiliation not provided to SSRN

Klara Stephens

Independent ( email )

National Registry of Exonerations

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
797
Abstract Views
3,670
Rank
60,108
PlumX Metrics