How the Pretrial Process Contributes to Wrongful Convictions

43 Pages Posted: 10 Jan 2006

See all articles by Andrew D. Leipold

Andrew D. Leipold

University of Illinois College of Law


Wrongful convictions have attracted a great deal of scholarly interest in recent years, with most of the attention focused on bad forensics, flawed eyewitness identification, witness perjury, and other deviations from legal norms. This article argues that there is another, less obvious contributor to erroneous decisionmaking: the federal pretrial procedural rules. Current doctrine on pretrial release, venue, pretrial delay, joinder and severance, discovery, and guilty pleas are designed to accommodate a variety of interests, only one of which is the factual accuracy of the proceeding. As a result, the rules often implicitly, and at times explicitly, tolerate modest amounts of prejudice to the defendant's case in order to serve these other interests. Thus, for example, pretrial release decisions will closely consider the risks of flight and the dangers to the community, but rarely consider how the defense can be hampered if the accused remains in jail. Joinder and severance decisions place great weight on the efficiency of combined trials, while simultaneously recognizing the prejudicial impact that joinder can have on the defense. Other pretrial rules create comparable risks and are similarly tolerated.

Relying on both case law and government data, the article contends that none of the pretrial processes, in isolation, creates a serious risk of skewing the outcome of criminal cases, but that collectively the current rules are cause for concern. The article evaluates the impact of the procedures, both individually and collectively, and tries to assess how they contribute to the risk of wrongful convictions.

Keywords: wrongful convictions, criminal procedure, federal, pretrial process

JEL Classification: K14, K41

Suggested Citation

Leipold, Andrew D., How the Pretrial Process Contributes to Wrongful Convictions. American Criminal Law Review, Vol. 42, pp. 1123-1165, 2005, Available at SSRN:

Andrew D. Leipold (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
217-333-1955 (Phone)
217-244-1478 (Fax)

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