V. Reforms: Reducing the Number of Wrongful Convictions
Research and systematic thinking about the proximate causes of wrongful convictions have suggested a number of feasible reforms likely to reduce miscarriages of justice. At this early stage in the innocence movement, no comparable thought has been given to dealing with the far more intractable root causes. The partial list and descriptions that follow do not explain the research bases for the proposed reforms, but there is good reason to believe that the widespread adoption and systematic application of these reforms will reduce the number of wrongful convictions.
Recommended lineup reforms are grounded in laboratory research findings that show they will reduce the number of false identifications without significantly reducing accurate identifications. Witnesses in all lineups (live and photo) should be instructed that the perpetrator may not be present, to reduce the tendency to pick anyone. All lineup fillers should be selected on the basis of the victim’s verbal description, and not on similarity to the suspect. Lineups should contain only one suspect and should be fair in that there are similarities of race, height, general appearance, facial hair, photograph characteristics, and the like between the suspect and fillers. It is best that the lineup administrator not know who the suspect is (blind administration), to ensure that there is no unconscious influence on the witness (as is done for subjects in medical and pharmaceutical trials). If lineup administration is blind, the lineup participants (live or photo) should be presented one at a time (sequentially) rather than as a group (simultaneously). This helps to prevent the exercise of relative judgment, by which a witness picks a person out of the lineup who looks most like the memory of the perpetrator rather than recognizing the perpetrator. A witness should be asked for a confidence statement immediately after making an identification, to prevent his or her inflation of confidence as the case proceeds.
All crime laboratories should be accredited and their examiners certified and required to undergo periodic proficiency testing. Defense attorneys, as well as prosecutors and judges, should be educated in forensic testing techniques, and funding should be sufficient to have challenged forensic evidence retested. Defense attorneys should become aware that comparison testing methods, like fingerprinting, are not infallible. Where standards for comparison testing are weak or even suspect, as with bite mark evidence, special caution must be taken in allowing and weighing such evidence. Forensic science research is needed to ensure that methods and findings are valid. Substandard laboratories should be closed and not reopened until all problems are remedied.
The most widely recommended interrogation reform is to videotape entire interrogations, from initiation and before Miranda warnings to the conclusion, and not just the confessions. Videotaping allows pretrial judges to determine whether interrogation was coercive or likely to produce a false confession. Police benefit from videotaped interrogations, because confessions by guilty suspects provide powerful prosecution evidence. Interrogations should be time limited, especially for vulnerable suspects, such as teenagers, to 2 hours, because many false confessions are the product of protracted interrogation. Police in Canada and the United Kingdom are not allowed to use lies to get suspects to confess. This rule should be adopted even though the U.S. Supreme Court has held that lies do not violate a suspect’s constitutional rights. Another valuable reform would require police to provide, before interrogating, stronger evidence of their belief that a suspect is guilty than is now the case. A judicial instruction that informs the jury about the risks associated with nonvideotaped station house confessions creates incentives for police and prosecutors to adopt electronic recording.
If the use of jailhouse snitches is to continue, prosecutors should carefully corroborate their stories and take into account snitches’ characters and past experiences before using their claims that suspects confessed to them. Legal rules should allow defendants extensive discovery to explore the nature of deals made in return for their testimony. Judges should warn juries that jailhouse snitch evidence should be examined with greater care than that of other witnesses.
At present, many groups urge that compensation for indigent defense be raised to reasonable compensation, to allow competent assigned attorneys the time to better represent clients and bring public defenders’ workloads into compliance with established standards. Changes in appellate rulings should allow findings of ineffective assistance without needing to prove that incompetence caused a verdict. Greater bar association scrutiny of appointed counsel and public defenders can enjoin attorneys to do their jobs properly. Defense attorneys should be expected to visit crime scenes and interview all prosecution and defense witnesses. Funding for investigators should increase.
Additional funding for prosecutors and their investigators, by reducing caseloads, will create better understanding of cases and may reduce wrongful convictions. Prosecutors should advise police and forensic laboratories to include exculpatory evidence in their reports. As the leading executive branch participants in the criminal justice system, prosecutors should promote laws and regulations to improve lineups and interrogations in accordance with best practices established by psychological research and should not resist reasonable postconviction requests for reinvestigation of evidence.
Police investigators also need greater resources to make work pressures more manageable. Standards should be rewritten and training revised to educate investigators in wrongful conviction matters, to become aware of the effects of tunnel vision, and to include exculpatory evidence in their reports. This may be very hard to achieve, because it calls for a change in police culture away from pro-prosecution partisanship and more toward a neutral and scientific attitude toward cases.