Officials' Estimates of the Incidence of “Actual Innocence” Convictions

Evidence indicates that the conviction and imprisonment of factually innocent persons occur with some regularity. Most research focuses on causes, but the incidence of wrongful convictions is an important scientific and policy issue, especially as no official body gathers data on miscarriages of justice. Two methods are available for discovering the incidence of wrongful conviction: (1) enumerating specific cases and (2) having criminal justice experts estimate its incidence. Counts or catalogues of wrongful conviction necessarily undercount its incidence and are subject to accuracy challenges. We surveyed Michigan criminal justice officials, replicating a recent Ohio survey, to obtain an expert estimate of the incidence of wrongful conviction. All groups combined estimated that wrongful convictions occurred at a rate of less than ½ percent in their own jurisdiction and at a rate of 1–3 percent in the United States. Defense lawyers estimate higher rates of wrongful conviction than judges, who estimate higher rates than police officials and prosecutors. These differences may be explained by professional socialization. An overall wrongful conviction estimate of ½ percent extrapolates to about 5,000 wrongful felony convictions and the imprisonment of more than 2,000 innocent persons in the United States every year.     

刑事错案形成的心理原因

刑事错案的成因包括直接原因、环境原因和心理原因,其中心理原因(主要表现为包括"遂道视野"、"证实偏差"等在内的各种心理偏差)对错案的形成有更根本的影响。绝大多数直接原因,如刑讯逼供、隐瞒有利于犯罪嫌疑人、被告人的证据、忽视辩护律师的合理意见等等,都是各种心理偏差的外在表现。而绝大多数环境原因,如不合理的考核方式、司法经费不足等等,之所以会导致错案,主要是因为它们强化了这些心理偏差。根据这些心理偏差对错案形成的可能影响,可以在心理学层面总结出刑事错案的形成过程及规律,而我国近年来纠正的22起刑事错案可以为此提供验证。我国有必要完善当前的刑事司法体制,以减少这些心理偏差对办案人员的影响,进而更有效地防止错案的发生。     

Iron triangle of the gong jian fa: Lessons from wrongful convictions in capital cases?

This article examines the iron triangle of the gong jian fa (police, prosecutors and courts) in China, based on Chinese lessons from high-profile wrongful convictions in capital cases. It argues that the iron triangle acts as both an administrative and a political control on such cases, behind which lies overly close cooperation between the three state institutions. This cooperation often results from coordination by local political-legal committees (PLCs). Under this institutional environment, the police, prosecutors and courts have to work together and cooperate with combating crime, without necessary restricts to ensure criminal justice even in capital cases. Responding to repeated occurrences of such typical injustices, China has promoted several waves of justice reforms to prevent and reduce wrongful convictions over the last ten years, but has failed to make substantive progress without effectively addressing the iron triangle. This continued failure calls for a holistic approach to future systemic reform. Particularly, specific measures are required to enhance judicial independence and to reduce intervention from local PLCs during the handling of individual cases. Such reforms would greatly reduce the risk of wrongful convictions in capital cases.     

刑事错判证明标准的名案解析

错判的发生具有普遍性和蛰伏性,错判的认知具有模糊性和对抗性,因此我们需要明确认定错判的证明标准。通过对美国、英国、德国的错判证明标准的实例解析,我们可以看到,他们在认定错判的时候都不适用刑事诉讼中认定被告人有罪的证明标准,而且认定错判的证明标准都低于认定有罪的证明标准。我们应该重新阐释中国刑事诉讼中错判的证明标准,而且应区分启动再审的证明标准、认定错判的证明标准和决定国家赔偿的证明标准。     

Convictions versus Conviction Rates: The Prosecutor's Choice

It is natural to suppose that a prosecutor's conviction rate—theratio of convictions to cases prosecuted—is a sign ofhis competence. Prosecutors, however, choose which cases toprosecute. If they prosecute only the strongest cases, theywill have high conviction rates. Any system that pays attentionto conviction rates, as opposed to the number of convictions,is liable to abuse. As a prosecutor's budget increases, he allocatesit between prosecuting more cases and putting more effort intoexisting cases. Either can be socially desirable, dependingon particular circumstances. We model the tradeoffs theoreticallyin two models, one of a benevolent social planner and one ofa prosecutor who values not just the number of convictions butthe conviction rate and unrelated personal goals. We apply themodel to U.S. data drawn from county-level crime statisticsand a survey of all state prosecutors by district. Convictionrates do have a small negative correlation with prosecutorialbudgets, but conditioning on other variables in regression analysis,higher budgets are associated both with more prosecutions andhigher conviction rates.     

Advancing Wrongful Conviction Scholarship: Toward New Conceptual Frameworks

As wrongful conviction scholarship grows, some scholars have suggested that existing research on miscarriages of justice lacks theoretical grounding and methodological sophistication, arguing that the use of social science theory may help to better understand wrongful convictions. In this article, we suggest that it may be useful to draw upon conceptual frameworks found in traditional criminal justice studies, discuss what such approaches might suggest about miscarriages of justice, and begin to explore the questions or topics they may encourage interested researchers to pursue. Furthermore, through this broad theoretical lens, we can see that criminal justice theory is present, at least implicitly, in some existing innocence literature, and that making such theoretical connections more explicit may help to move the study of wrongful conviction into the mainstream of criminal justice research.     

Convicted but innocent

Legal literature from the beginning of the century, as well as more recent studies, furnish us with accounts of cases of innicent men and women who were tried and convicted of serious crimes throughout the United States. This study surveys the literature on those cases and describes these wrongful convictions by the distribution of offenses, of sentences, of actual punishment inflicted, and types of error contributing to the wrongful conviction.     

The Criminal Justice System Creates Incentives for False Convictions

Abstract

The American criminal justice system creates incentives for false conviction. For example, many public crime labs are funded in part per conviction. We show that the number of false convictions per year in the American criminal justice system should be considered “high.” We examine the incentives of police, forensic scientists, prosecutors, and public defenders in the U.S. Police, prosecutors, and forensic scientists often have an incentive to garner convictions with little incentive to convict the right person. These incentives create what economists call a “multitask problem” that seems to be resulting in a needlessly high rate of false convictions. Public defenders lack the resources and incentives needed to provide a vigorous defense for their clients. Corrective measures are discussed, along with a call for more research.     

Wrongful convictions and claims of false or misleading forensic evidence

The results are reported of a study to examine case factors associated with 732 wrongful convictions classified by the National Registry of Exonerations as being associated with “False or Misleading Forensic Evidence.” A forensic error typology has been developed to provide a structure for the categorization and coding of factors relating to misstatements in forensic science reports; errors of individualization or classification; testimony errors; issues relating to trials and officers of the court; and evidence handling and reporting issues. This study, which included the analysis of 1391 forensic examinations, demonstrates that most errors related to forensic evidence are not identification or classification errors by forensic scientists. When such errors are made, they are frequently associated with incompetent or fraudulent examiners, disciplines with an inadequate scientific foundation, or organizational deficiencies in training, management, governance, or resources. More often, forensic reports or testimony miscommunicate results, do not conform to established standards, or fail to provide appropriate limiting information. Just as importantly, actors within the broader criminal justice system—but not under the purview of any forensic science organization—may contribute to errors that may be related to the forensic evidence. System issues include reliance on presumptive tests without confirmation by a forensic laboratory, use of independent experts outside the administrative control of public laboratories, inadequate defense, and suppression or misrepresentation of forensic evidence by investigators or prosecutors. In approximately half of wrongful convictions analyzed, improved technology, testimony standards, or practice standards may have prevented a wrongful conviction at the time of trial.     

The color of confinement: examining youth exoneration decisions and the critical race theory

Abstract

The critical race theory has been predictive of how minority youth are treated in the juvenile and criminal justice systems in the United States. However, the theory has not been applied in explaining the existence of wrongful convictions among juveniles. Using secondary data derived from the National Exoneration Registry, the purpose of this study is to identify specific factors (e.g., DNA evidence, etc.) related to the wrongful convictions of Black youth who have been exonerated. Compared to other racial categories, the results reveal that Black youth are more likely to experience wrongful convictions as a result of false confessions, faulty eyewitness identification, perjury, and official misconduct. Limitations, policy implications, and areas of further investigation are offered.     

Miscarriages of Justice and the Discourse of Innocence: Perspectives from Appellants,Campaigners, Journalists,and Legal Practitioners

This article problematizes the discourse of innocence in relation to victims of wrongful conviction operating within the criminal justice system. For appellants whose convictions have been quashed by the Court of Appeal, notions of innocence are often at odds with how others perceive and understand the purpose of criminal trials and appeals. This article will examine the views of legal practitioners, journalists, and victims of wrongful conviction and their supporters regarding factual innocence and how misunderstanding can sometimes lead to miscommunication by actors operating within the same system. The article will further examine the issue of compensation in light of the recent ruling by the Supreme Court and conclude that the current debate regarding what constitutes a miscarriage of justice continues to confuse legal practitioners and prolong the anxiety suffered by victims recovering from the trauma of wrongful imprisonment and subsequent losses.     

Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law

Today it is widely recognized in both academic literature and the mainstream media that prosecutors have substantial discretion. Yet prosecutorial decisions involve, in our view, something more than a straightforward exercise of discretion. In this article we move from the language of discretion to that of sovereignty to describe prosecutorial power. In so doing we want to move from the language of administration to the language of power. Focusing on the decision not to prosecute, we argue that prosecutorial decisions participate in, and exemplify, the logic of sovereignty and its complex relationship to legality.
By drawing on Carl Schmitt and Giorgio Agamben, we seek to recast prosecutorial decision making as something that allows prosecutors to grant exemptions from the reach of valid law. The sovereign power of prosecutors is most vividly on display when they decline to bring charges where there is a legally sufficient basis for doing so. By exercising what is, in most jurisdictions, an all but unreviewable power, they can and do exempt individuals from the reach of valid law.     

Identifying Miscarriages of Justice: Why Innocence in the UK is Not the Answer

This article examines two contrasting proposals for the reform of criminal appeals: the government's recent proposal that the guilty should no longer have their convictions quashed on 'technicalities'; and calls by campaigners for the Court of Appeal to consider innocence rather than the 'safety of the conviction,' together with their associated attempts to establish Innocence Projects in the UK. Despite the rhetorical power of 'innocence' as a campaigning tool, it is contended that to import such a standard into the legal system would be retrogressive and counter-productive, both as a safeguard against wrongful convictions and in protecting the integrity of the system. In order to be meaningful, due process protections must apply to all. The government's proposals attack this principle directly; innocence campaigners risk unwittingly assisting their endeavours.     

Psychopathy, intelligence and conviction history

The current study examined the relationship between psychopathy, intelligence and two variables describing the conviction history (length of conviction and number of prior convictions). It was hypothesized that psychopathy factors (interpersonal and antisocial factors assuming a 2-factor model or interpersonal, affective, lifestyle and antisocial factors assuming a 4-factor model) would be related in different ways to IQ scores, length of conviction and number of prior convictions. Psychopathy and IQ were assessed using the PCL:SV and the CFT 20-R respectively. Results indicated no association between interpersonal psychopathy features (Factor 1, two-factor model), IQ and the number of prior convictions but a positive association between Factor 1 and the length of conviction. Antisocial features (Factor 2, two-factor model) were negatively related to IQ and the length of conviction and positively related to the number of prior convictions. Results were further differentiated for the four-factor model of psychopathy. The relationship between IQ and psychopathy features was further assessed by statistically isolating the effects of the two factors of psychopathy. It was found that individuals scoring high on interpersonal features of psychopathy are more intelligent than those scoring high on antisocial features, but less intelligent than those scoring low on both psychopathy features. The results underpin the importance of allocating psychopathic individuals to subgroups on the basis of personality characteristics and criminological features. These subgroups may identify different types of offenders and may be highly valuable for defining treatment needs and risk of future violence.     

CRIMINALITY, PROSECUTORIAL SCREENING, AND UNCERTAINTY: TOWARD A THEORY OF DISCRETIONARY DECISION MAKING IN FELONY CASE PROCESSINGS

This research contributes to a further understanding of the process of criminalization by examining case information that affects prosecuting attorneys' decision to continue felony prosecution following grand jury indictment. It is suggested that prosecuting attorneys, like other decision makers in organizations engaged in people-processing activities, are confronted with uncertainty emerging from an inability to unilaterally exercise control over all actors involved in the transformation process. By relying on a self-imposed decision criteria of prosecutorial merit defined as the likelihood of obtaining a jury trial conviction, prosecutors attempt to impose a "bounded rationality" on the exercise of discretion in screening decision making. This rationality is one that is sensitive to concerns for effective management of victims and witnesses. It is argued that information relevant to victim/witness credibility and/or cooperation in prosecution is brought to bear in deciding prosecutorial strategies of case processing. Therefore, it is hypothesized that, controlling for legal and extralegal variables, case information that decreases uncertainty concerning victim/witness management will increase the probability of continued prosecution. Support is found for this uncertainty avoidance thesis. In addition, the data indicate that prosecuting attorneys are less likely to continue prosecution of cases involving female defendants and are more likely to continue prosecution of defendants whose bail outcome includes financial conditions for release.     

Sexual Assault Case Outcomes: Disentangling the Overlapping Decisions of Police and Prosecutors

The rape reform movement of the 1970s and 1980s was designed to improve the likelihood of prosecution and conviction in sexual assault cases. However, there is evidence that the attrition rate for sexual assaults reported to the police remains high, and that the locus of case attrition is arresting and charging decisions. In this paper, we analyze police and prosecutorial decision-making in sexual assault cases using quantitative data on sexual assaults reported to the Los Angeles Police Department and the Los Angeles County Sheriff’s Department in 2008. We argue that decisions made by police and prosecutors should not be examined in isolation from one another and that researchers who analyze arrest decisions by examining only cases that are formally cleared by arrest or who focus only on charging decisions that follow the arrest of a suspect may be ignoring important aspects of police and prosecutorial decision-making. This is confirmed by the results of our study, which reveal that a significant proportion of cases in which the police appear to have probable cause to make an arrest do not result in the arrest of the suspect and that a substantial number of cases are rejected for prosecution by the district attorney before an arrest is made. Moreover, the factors that predict arrest and charging vary depending upon the way in which the outcome is operationally defined. These results have a number of important policy implications for police and prosecutors handling sexual assault cases.     

A Postconviction Mentality: Prosecutorial Assistance in Exoneration Cases

Prosecutors’ broad discretionary power has long been of interest to scholars, yet little is known about discretionary choices after conviction. This study addresses the gap by exploring prosecutors’ willingness to assist with exonerations. Using data from the National Registry of Exonerations (N = 1,610), the author identifies factors that influence prosecutorial assistance. Results from generalized ordered logistic regression models demonstrate that avoiding uncertainty and maintaining workgroup relationships drives decision-making. Findings indicate that prosecutors are less likely to support exonerations involving law enforcement or forensic misconduct, violent offenses, and inadequate legal defense and more likely to support exonerations involving innocence organizations, guilty pleas, and black and Hispanic defendants. These findings suggest that prosecutors’ interest in protecting professional reputations, maintaining relationships, and optimizing efficiency influences discretion in the postconviction stage just as in earlier stages of case processing.     

CASE STUDY ON THE CAUSES OF WRONGFUL CONVICTION IN CHINESE CRIMINAL PROCEEDINGS

In recent years, with the disclosure of wrongful convictions in the media, the topic has become a focus of attention in China. Those wrongful convictions led people to ask: What is going wrong in Chinese criminal justice system? Since late 1995, the author of this article led a group of researchers and embarked upon an empirical study of wrongful convictions in China. According to our study, false confessions extracted with torture are a major evidential cause, or direct cause, for wrongful convictions in China. However, there are indirect causes behind the problem of torture in the criminal proceedings. They are the nominal checks among the police, the procuratorate and the court; the bowing to public opinions in contradiction to legal principles; the unlawfully extended custody with tunnel vision; the nominalization of courtroom trials; and the reducing of punishment in a case of doubt. These causes of wrongful convictions reflect the institutional flaws, outdated mentalities, and improper practices in Chinese criminal proceedings.     

Japan’s Reformed Prosecution Review Commission: Changes,Challenges, and Lessons

This article evaluates how Japan’s Prosecution Review Commission (PRC) has performed since it was reformed in 2009 to allow panels of 11 citizens to override the non-charge decisions of professional prosecutors. In the first eight cases of “mandatory prosecution” that have occurred since 2009, the conviction rate is 20%—far lower than Japan’s usual conviction rate, which exceeds 99%. In the ninth case of mandatory prosecution, three former executives of the Tokyo Electric Power Company have been subject to mandatory prosecution for “professional negligence resulting in death and injury,” for failing to prevent the nuclear meltdowns at Fukushima that were precipitated by the earthquake and tsunami of March 11, 2011, which killed 18,500 people and caused 200,000 more to flee their homes. As of 2018, the trial of the Tepco executives is still in progress. This evaluation study of prosecutorial reform in one Asian nation suggests that, in principle, prosecutors’ non-charge decisions can be checked and controlled. In practice, however, Japan’s PRC reform has done little to alter the standard operating procedures of professional prosecutors. Further reform of the PRC may be necessary.

     

The adequacy of China's responses to wrongful convictions

This paper examines a series of reforms that followed the discovery of high-profile wrongful convictions in China since 2005. There have been two waves of criminal justice reforms to prevent future wrongful convictions and to improve China's criminal justice system more generally. But it will be suggested in this paper that China's responses are inadequate because they allow traditional police and judicial practices that will lead to future wrongful convictions to continue. Further reforms will be suggested. First, police interrogations should be fully recorded, and the entire recording should be played back at trial. Second, the role of the defense counsel should be expanded. The use of state secrets as evidence against the accused should be curtailed. The close cooperation between the police, procuratorates and judiciary in the criminal justice should be counteracted by the creation of an independent body to review all serious convictions. Finally, the Chinese criminal justice has proven itself not safe enough to allow the broad use of capital punishment as a punishment for non-violent offences and at the very least, the immediate execution of prisoners who lose their final appeal must be abolished.