Edited by C. Ronald Huff and Martin Killias, Temple University Press, Philadelphia, Pa. 326 pages, $59.50
We have all heard the stories about people who have spent years in prison, perhaps after having been sentenced to death, only to be exonerated after a court determined that he or she had been wrongfully convicted. Can you remember any of those people’s names? Recent attention to such wrongful convictions possibly has raised questions in your mind and in the minds of others as to how these mistakes could have happened. What went wrong in our systems of criminal justice that led to these innocent people’s lives being destroyed? This question is the precise inquiry explored in “Wrongful Conviction.”
“Wrongful Conviction” employs a cross-national approach to researching and understanding how innocent people are convicted of crimes that they did not commit by incorporating the work of a variety of scholars who are committed to understanding the ways in which other nations’ systems of criminal justice facilitate or successfully avoid wrongful convictions. The editors, C. Ronald Huff and Martin Killias, rely on a common definition of a wrongful conviction “focusing exclusively on those who have been arrested on criminal charges, who have either pleaded guilty to the charges or have been found guilty, and who, notwithstanding their guilty plea or verdict, are actually innocent.”
Part I includes an essay by Randal Grometstein who uses the organized child abuses cases, a phenomenon that occurred in North America and in Western Europe, to demonstrate that wrongful convictions may arise from a theory known as the moral panic concept. The moral panic concept maintains that “claims-makers,” who discover social problems and bring them to the attention of the masses while suggesting that the source of the problems is deviant persons, demand a modification of traditional procedures that gets in the way of dealing with the new problems. Mr. Grometstein suggests that this type of moral panic can lead to wrongful convictions because it may cause a “weakening of traditional legal safeguards due to the perceived urgency of the danger of threatening society.” This moral panic and the resulting notion that crimes must be solved quickly may be worsened by problems such as: overzealousness by police and prosecutors; false and coerced confessions and improper interrogations; forensic errors, incompetence, and fraud; and legal innovations, such as the increased use and reliance on “expert” testimony. Mr. Grometstein ultimately recommends the creation of what he calls “innocent commissions” that are empowered to examine actual innocence instead of just procedural safeguards to serve as a reviewing body for criminal convictions.
Part I also explores the issue of forensic evidence and, in particular, DNA evidence, which has become the “New Gold Standard.” Specifically, Beatrice Schiffer and Christophe Champod point out that with some forensic evidence, such as ear print analysis, there may be subjective bias or confirmation bias in identification techniques that have the potential to lead to wrongful convictions. DNA evidence, which has provided important scientific evidence to both convict and acquit, must also be used with caution because there are risks in collecting and handling samples along with the risk of relying solely on DNA without considering other forensic evidence. However, Ms. Schiffer and Mr. Champod stress that forensic evidence, and specifically proper DNA testing, is still a very important tool in ensuring the conviction of the guilty suspect.
Part II delves into the specific criminal justices systems in the United States and Canada and analyzes certain aspects within these systems that make them prone to result in wrongful convictions. In the United States, eyewitness error, overzealousness or unethical police and prosecutors, false and coerced confessions and improper interrogations, inappropriate use of jailhouse informants, and ineffective assistance of counsel all contribute to convicting innocent people. Mr. Huff points out that the creation of such programs as the Innocence Project, cofounded by Barry Scheck and Peter Neufeld, which has successfully led to the reversal of more than 230 wrongful convictions in the United States, has provided promising review measures to alleviate the problem of wrongful convictions. The nature of the adversarial system itself, specifically the reliance on jury verdicts, might also contribute to wrongful convictions in the United States. Part II also explores the phenomenon of wrongful convictions in death penalty cases and, in an essay by William S. Lofquist and Talia R. Harmon, provides an analysis of 16 cases presenting compelling claims of actual innocence.
Unique to Canada’s adversarial system is a conviction review process, whereby after exhaustion of all their appeals, individuals may apply to the federal minister of justice for a conviction review. Canada’s review process has its own problems though, including high costs to the applicant without financial assistance and complete discretion within the minister of justice, who, as chief prosecutor, has a clear conflict of interest.
Finally, Part III examines systems of criminal justice outside of North America, including Switzerland, the Netherlands, the United Kingdom, Germany, France, Israel, and Poland. Unlike the United States, in Switzerland, there are no specific rules for disclosure requirements, the role of the defense is extremely limited, plea bargaining is not allowed in cases with contested or unclear facts, and prosecutors are subject to criminal prosecution if they withhold evidence that might be favorable to the defendant.
Martin Killias suggests that controlling police and prosecutorial misconduct may be an efficient means through which to lessen wrongful convictions. In the Netherlands, and in similar inquisitorial systems, the criminal systems rely on professional judges of fact and impartial state-appointed prosecutors with roles of the defense limited to prompting the judge to ask relevant questions. The obvious risk to these types of systems is that the professional participants may not remain impartial.
Although “Wrongful Conviction” provides interesting statistics and analysis of various criminal systems throughout North America, Europe, and Israel, unfortunately, the authors provide little hope that these mistakes can be altogether avoided by the adoption of one type of criminal system over others. Here are a few examples of what the editors suggest to minimize the chance of mistake: (1) a rule of impartial, disinterested search of the truth; (2) restriction of plea bargaining to minor offenses and procedural safeguards such as the sentence that a defendant may receive if he or she proceeds to trial should not exceed the one offered in the “deal”; (3) full disclosure of the police/prosecutor’s file to the defendant; (4) limiting the role of the defense to decrease the threat of ineffective counsel; (5) a readily available appeals system; and (6) improving accuracy of forensic evidence while moving away from heavy reliance on eyewitness accounts.
All in all, “Wrongful Conviction” will not help you remember any of the names of those people who you have heard about who spent years in prison for a crime that they did not commit, but it will give you an interesting perspective into the other criminal systems around the world and, perhaps, give you solace in the fact that the United States is not the only country with an imperfect and often fallible criminal system.
M. Katherine Wingard is an associate at Wrobel & Schatz.