Turvey / Cooley Miscarriages of Justice

Actual Innocence, Forensic Evidence, and the Law
1. Auflage 2014
ISBN: 978-0-12-409528-1
Verlag: Elsevier Science & Techn.
Format: EPUB
Kopierschutz: 6 - ePub Watermark

E-Book, Englisch, 416 Seiten

Miscarriages of justice are a regular occurrence in the criminal justice system, which is characterized by government agencies that are understaffed, underfunded, and undertrained across the board. We know this because, every week, DNA testing and innocence projects across the United States help to identify and eventually overturn wrongful convictions. As a result, the exonerated go free and the stage is set for addressing criminal and civil liability. Criminal justice students and professionals therefore have a need to be made aware of the miscarriage problem as a threshold issue. They need to know what a miscarriage of justice looks like, how to recognize it's many forms, and what their duty of care might be in terms of prevention. They also need to appreciate that identifying miscarriages, and ensuring legal remedy, isÿ an important function of the system that must be honored by all criminal justice professionals. The purpose of this textbook is to move beyond the law review, casebook, and true crime publications that comprise the majority of miscarriage literature. While informative, they are not designed for teaching students in a classroom setting. This text is written for use at the undergraduate level in journalism, sociology, criminology and criminal justice programs - to introduce college students to the miscarriage phenomenon in a structured fashion. The language is more broadly accessible than can be found in legal texts, and the coverage is multidisciplinary. Miscarriages of Justice: Actual Innocence, Forensic Evidence, and the Law focuses on the variety of miscarriages issues in the United States legal system. Written by leaders in the field, it is particularly valuable to forensic scientists and attorneys evaluating evidence or preparing for trial or appeal in cases where faulty evidence features prominently. It is also of value to those interested in developing arguments for miscarriage in post-conviction review of criminal cases. Chapters focus specifically on issues of law enforcement bias and corruption; false confessions; ineffective counsel and prosecutorial misconduct; forensic fraud; and more. The book closes by examining innocence projects and commissions, and civil remedies for the wrongfully convicted. This text ultimately presents the issue of miscarriages as a systemic and multi-disciplinary criminal justice issue. It provides perspectives from within the professional CJ community, and it serves as warning to future professionals about the dangers and consequences of apathy, incompetence, and neglect. Consequently, it can be used by any CJ educator to introduce any group of CJ students to the problem. - Written by practicing criminal justice professionals in plain language for undergraduate students - Covers multiple perspectives across the criminal justice system - Informed by experience working for Innocence Projects across the United States to achieve successful exonerations - Topical case examples to facilitate teaching and learning - Companion website featuring Discussion topics, Exam questions and PowerPoint slides: http://textbooks.elsevier.com/web/Manuals.aspx?isbn=9780124115583

Brent E. Turvey spent his first years in college on a pre-med track only to change his course of study once his true interests took hold. He received a Bachelor of Science degree from Portland State University in Psychology, with an emphasis on Forensic Psychology, and an additional Bachelor of Science degree in History. He went on to receive his Masters of Science in Forensic Science after studying at the University of New Haven, in West Haven, Connecticut. Since graduating in 1996, Brent has consulted with many agencies, attorneys, and police departments in the United States, Australia, China, Canada, Barbados and Korea on a range of rapes, homicides, and serial/ multiple rape/ death cases, as a forensic scientist and criminal profiler. He has also been court qualified as an expert in the areas of criminal profiling, forensic science, victimology, and crime reconstruction. In August of 2002, he was invited by the Chinese People's Police Security University (CPPSU) in Beijing to lecture before groups of detectives at the Beijing, Wuhan, Hanzou, and Shanghai police bureaus. In 2005, he was invited back to China again, to lecture at the CPPSU, and to the police in Beijing and Xian - after the translation of the 2nd edition of his text into Chinese for the University. In 2007, he was invited to lecture at the 1st Behavioral Sciences Conference at the Home Team (Police) Academy in Singapore, where he also provided training to their Behavioral Science Unit. In 2012 Brent completed his PhD in Criminology from Bond University in Gold Coast, Australia. He is the author of Criminal Profiling: An Introduction to Behavioral Evidence Analysis, 1st, 2nd, 3rd and 4th Editions (1999, 2002, 2008, 2011); co- author of the Rape Investigation Handbook, 1st and 2nd Editions (2004, 2011), Crime Reconstruction 1st and 2nd Editions (2006, 2011), Forensic Victimology (2008) and Forensic Fraud (2013) - all with Elsevier Science. He is currently a full partner, Forensic Scientist, Criminal Profiler, and Instructor with Forensic Solutions, LLC, and an Adjunct Professor of Justice Studies at Oklahoma City University. He can be contacted via email at: [e-mail].

Autoren/Hrsg.

Turvey, Brent E.

Cooley, Craig M

Inhaltsverzeichnis

1;Front Cover;1
2;Miscarriages of Justice: Actual Innocence, Forensic Evidence, and the Law;4
3;Copyright;5
4;Contents;6
5;Preface;10
5.1;IDENTIFYING MISCARRIAGES OF JUSTICE;10
5.2;References;13
6;Foreword;14
6.1;WRONGFUL CONVICTIONS: UNDERSTANDING CAUSES AND CONSEQUENCE;14
7;About the Authors;18
8;About the Contributors;20
9;Section 1 - Miscarriages of Justice: Natureand Frequency;22
9.1;Chapter 1 - Miscarriages of Justice: An Introduction;24
9.1.1;THE ROLE OF THE CRIMINAL JUSTICE SYSTEM;25
9.1.2;MISCARRIAGES OF JUSTICE;26
9.1.3;MISCARRIAGES: A TYPOLOGY;27
9.1.4;HISTORICAL PERSPECTIVES;33
9.1.5;CAUSAL FACTORS;41
9.1.6;CONCLUSION;44
9.1.7;REFERENCES;44
9.2;Chapter 2 - Wrongful Conviction Rates;46
9.2.1;CONTEMPORARY RESEARCH;53
9.2.2;CORRELATES AND CAUSES;62
9.2.3;CONCLUSION;65
9.2.4;REFERENCES;65
10;Section 2 - Miscarriages of Justice: Investigative Causes;68
10.1;Chapter 3 - Police Corruption;70
10.1.1;DUTY OF CARE;70
10.1.2;BREAKING THE LAW TO UPHOLD IT;72
10.1.3;NOBLE CAUSE CORRUPTION;73
10.1.4;PATROL OFFICERS;74
10.1.5;CRIMINAL INVESTIGATORS;92
10.1.6;REFERENCES;107
10.2;Chapter 4 - Eyewitness Identification: Uncertainty, Error, and Miscarriages of Justice;112
10.2.1;A HISTORY OF UNRELIABILITY;113
10.2.2;MEMORY;116
10.2.3;SPECIFIC PROBLEMS WITH EYEWITNESS MEMORY;120
10.2.4;NEW JERSEY AND THE HENDERSON CASE;129
10.2.5;CONCLUSION;131
10.2.6;REFERENCES;132
10.3;Chapter 5 - Police Interrogations and False Confessions;136
10.3.1;WHAT IS A FALSE CONFESSION?;136
10.3.2;FALSE CONFESSION TYPOLOGY;140
10.3.3;CONFESSION LAW;142
10.3.4;LAW ENFORCEMENT INTERROGATION AND THE REID TECHNIQUE;144
10.3.5;FALSE CONFESSIONS, INEVITABILITY, AND BLAME;166
10.3.6;REFERENCES;166
10.4;Chapter 6 - Criminal Informants and Wrongful Convictions;170
10.4.1;INFORMANTS AS AN INVESTIGATIVE TOOL;170
10.4.2;TYPES OF INFORMANTS;173
10.4.3;INFORMANTS AND WRONGFUL CONVICTIONS;177
10.4.4;INCOMPETENT OR CORRUPTIBLE;185
10.4.5;SUGGESTED REFORMS;186
10.4.6;REFERENCES;188
11;Section 3 - Miscarriages of Justice: Forensic Causes;190
11.1;Chapter 7 - Forensic Science, The CSI Effect, and Wrongful Convictions;192
11.1.1;THE CSI EFFECT;193
11.1.2;FORENSIC SCIENCE UNDER SCRUTINY;197
11.1.3;CONCLUSION;212
11.1.4;REFERENCES;212
11.2;Chapter 8 - Forensic Fraud and Misconduct;218
11.2.1;CULTURAL CONFLICTS;219
11.2.2;SCIENTIFIC MISCONDUCT;222
11.2.3;DIFFERENTIATING FRAUD AND NEGLIGENCE;224
11.2.4;FALSE TESTIMONY;230
11.2.5;FORENSIC FRAUD;231
11.2.6;CONCLUSION;242
11.2.7;REFERENCES;243
11.3;Chapter 9 - Bitemark Evidence and Miscarriages of Justice;246
11.3.1;INTRODUCTION;246
11.3.2;PROFESSIONAL STATUS OF THOSE PRACTICING BITEMARK COMPARISON;250
11.3.3;BITEMARK ANALYSIS: THE EVIDENCE, METHODS, AND ASSUMPTIONS;250
11.3.4;A BRIEF LEGAL DISCUSSION;261
11.3.5;DESCRIPTIONS OF BITEMARK EXONERATIONS AND ERRONEOUS INCARCERATIONS;262
11.3.6;DESCRIPTIONS OF WRONGFUL ARRESTS BASED ON BITEMARK EVIDENCE;269
12;Section 4 - Miscarriages of Justice: LegalCauses;274
12.1;Chapter 10 - Ineffective Assistance of Counsel;276
12.1.1;THE RIGHT TO “EFFECTIVE” COUNSEL;277
12.1.2;CRIMINAL DEFENSE ATTORNEYS: STRUCTURE AND FUNCTION;279
12.1.3;THE PRESUMPTION OF INNOCENCE;283
12.1.4;INEFFECTIVE ASSISTANCE OF COUNSEL;285
12.1.5;PRETRIAL EFFECTIVENESS ISSUES;288
12.1.6;EFFECTIVENESS ISSUES AT TRIAL;290
12.1.7;REFERENCES;296
12.2;Chapter 11 - Prosecutorial Misconduct;298
12.2.1;CRIMINAL PROSECUTORS: STRUCTURE AND FUNCTION;299
12.2.2;PROSECUTORIAL MISCONDUCT: NUMBERS AND ORIGINS;312
12.2.3;MISCONDUCT WITH LAW ENFORCEMENT;314
12.2.4;PRETRIAL MISCONDUCT;324
12.2.5;ETHICAL ISSUES DURING TRIAL;342
12.2.6;INCENTIVIZED MISCONDUCT;351
12.2.7;REFERENCES;353
13;Section 5 - Miscarriages of Justice: Remedies;358
13.1;Chapter 12 - Forensic Reform;360
13.1.1;THE LEGAL COMMUNITY: A UNIQUE PERSPECTIVE;361
13.1.2;FORENSIC SCIENCE AND MISCARRIAGES OF JUSTICE;362
13.1.3;THE NAS REPORT;367
13.1.4;FORENSIC REFORM;371
13.1.5;CONCLUSION;377
13.1.6;REFERENCES;377
13.2;Chapter 13 - Miscarriages of Justice: Prevention and Management;380
13.2.1;THE PROFESSIONAL OBLIGATION TO REFORM;381
13.2.2;PREVENTATIVE REFORMS;383
13.2.3;POSTCONVICTION EFFORTS;388
13.2.4;CONCLUSION;394
13.2.5;REFERENCES;395
14;Glossary;398
15;Index;406

Leseproben

Chapter 2

Wrongful Conviction Rates

Brent E.TurveyCraig M.Cooley

Abstract

Once the reality of wrongful convictions has been confirmed anecdotally, the question of frequency arises. Researchers and other CJ professionals want to know how often miscarriages occur, and whether there are consistent correlates that can lend themselves to prediction and possibly prevention. At the outset, it must be acknowledged that despite the efforts of some very well-intentioned social scientists, good numbers are hard to find. The rate of wrongful conviction, if not entirely unexplored in a given jurisdiction, is essentially unknowable. The reason is that guilt is often a legal “truth” established by the opinion of a judge or jury. It is not a scientific fact. What stands for fact and evidence in a courtroom is often insufficient as confirmation anywhere else—to say nothing of those who are “qualified” by the courts to give evidence. To explore this and related issues, this chapter reviews the conclusions of early miscarriage research, the conclusions of contemporary research, and the systemic realities that help contextualize those results.

Keywords

Edwin M. BorchardPaleyitesExonerationDNA exonerationWrongful conviction rate

Rodney Uphoff, a Professor of Law at the University of Missouri–Columbia, explains that (2006, p. 740): “No one in this country wants to see a person wrongly accused of a crime actually convicted of that crime.” A similar refrain is heard time and again from legal scholars and other CJ professionals writing about the subject of wrongful convictions. For example, the recently published National Summit on Wrongful Convictions by the International Association of Chiefs of Police explains at the very outset (IACP, 2013, p. xiii): “Everyone wants to see the right person brought to justice, and no one wants to be a part of a failed effort that sends the wrong person to prison.” Then the authors go on to describe facts and circumstances involving the intentional fabrication, concealment, or destruction of evidence by police and prosecutors aimed at ensuring this very kind of injustice. This is a consistent dissonance in the literature.

There will be no such confusion in this work. Through extensive case experience on a national and multijurisdictional level, the authors have come to accept that there are those in the criminal justice system who actually desire injustice. That is to say, there are those who want to subvert due process and violate the rights of criminal suspects and defendants for their own gain (e.g., personal or institutional). In addition, the potential innocence of convicted defendants is generally not considered by the judiciary during the appeals process because (1) defendants have been convicted and therefore legal guilt is assumed as a reality; and (2) innocence is not a due process issue that the lower courts are required to consider postconviction. So not only are there CJ professionals who work to ensure injustice, but the courts generally facilitate these injustices by assuming that convictions are righteous during the appellate process.

Evidence of this reality is not difficult to find. Each week new wrongful convictions related to murder convictions (and the odd sexual assault) are identified.1 As explained in Jones (2010), the enormity of (p. 473) “misconduct in the American criminal justice system is reflected in the number of wrongful convictions, near executions, and other miscarriages of justice in state and federal courtrooms across the country. These violations infect the accuracy of the fact-finding process and undermine the overall integrity of the judicial system.”

Once the reality of wrongful convictions has been confirmed anecdotally, the question of frequency arises. Researchers and other CJ professionals want to know how often miscarriages occur, and whether there are consistent correlates that can lend themselves to prediction and possibly prevention. At the outset, it must be acknowledged that despite the efforts of some very well-intentioned social scientists, good numbers are hard to find. The rate of wrongful conviction, if not entirely unexplored in a given jurisdiction, is essentially unknowable. The reason is that guilt is often a legal “truth” established by the opinion of a judge or jury. It is not a scientific fact. What stands for fact and evidence in a courtroom is often insufficient as confirmation anywhere else—to say nothing of those who are “qualified” by the courts to give evidence.

To explore this and related issues, this chapter reviews the conclusions of early miscarriage research, the conclusions of contemporary research, and the systemic realities that help contextualize those results.

Early Research2

Until the turn of this century, miscarriages of justice were not the focus of much serious research. There was at least one notable effort, however.

Borchard

Edwin M. Borchard is credited with being the father of wrongful conviction research. Known for conducting studies related to governmental liability, Borchard’s interest for the wrongly convicted dates back to at least 1913. At that time, he published an article in the Journal of Criminal Law and Criminology (Borchard, 1913, p. 684), which stated: “No attempt whatever seems to have been made in the United States to indemnify [the wrongly convicted] … although cases of shocking injustice are not infrequent occurrences.” His efforts over the next two decades culminated in a groundbreaking book titled Convicting the Innocent (Borchard, 1932). This effort details the stories of 65 wrongly convicted individuals, explaining (Borchard, 1932, p. vii):

Among the most shocking … [and] glaring of injustices are erroneous convictions of innocent persons. The State must necessarily prosecute persons legitimately suspected of crime; but when it is discovered after conviction that the wrong man was condemned, the least the State can do to right his essentially irreparable injury is to reimburse the innocent victim, by an appropriate indemnity, for the loss and damage suffered.

Borchard’s data indicated that wrongful convictions were not unique to a specific jurisdiction. Moreover, while wrongful convictions occurred most often in murder cases (29 out of 65), erroneous convictions were also documented in robbery cases (23), forgery cases (5), criminal assault cases (4), obscenity cases (2), bribery cases (1), and prostitution cases (1). According to his research, the primary causes of wrongful convictions included (King, 1970, pp. 1091–1094):

[M]isidentification, circumstantial evidence, frame-ups, overzealous police or prosecutors, prior convictions or unsavory records, community opinion demanding a conviction, and unreliability of expert evidence. In addition, erroneous convictions result[ed] from guilty pleas and confessions by innocent persons, or from the use of a false alibi by an innocent accused.

Although Borchard identified 65 wrongful convictions, his book was for the most part descriptive rather than analytical. He described how errors occurred, how they were uncovered, and how the cases against innocent defendants subsequently unraveled. He did not quantify, tabulate, or systematically analyze the data that he collected.

Notably, Borchard’s work came, in part, as a response to the self-serving efforts of the American Prison Congress (APC). As described in Gault (1912), the APC (p.131) “carefully investigate[d] every reported case of unjust conviction and [tried] to discover if the death penalty [had] ever been inflicted upon an innocent man.” The APC ultimately concluded that no innocent people had ever been put to death.

The APC’s findings were no surprise to anyone, least of all Borchard. He charitably referred to their efforts as “unauthentic,” when concluding (Borchard, 1913, pp. 706–707):

While it is true that our lax methods of administering the criminal law, the possibility of acquittal on technical grounds and the requirement of unanimity on the part of twelve jurymen, bring about nine cases of unjust acquittal to one case of unjust conviction, still the mere rarity of the occurrence is no excuse for a failure to acknowledge the principle and to remedy the evil. It makes the individual hardship, when it does occur, seem all the more distressing. That there have been numerous cases of this kind ... notwithstanding the unauthentic returns from wardens collected by the American Prison Congress and reported in this Journal (May, 1912, p. 131) to the effect that there are but few cases of unjust execution of innocent persons.

Over the next several decades, few researchers pursued the subject with any sustained interest. The APC’s disingenuous position held any serious scrutiny of the justice system at bay, and Borchard’s work went largely unreferenced for more than a generation.

Bedau and Radelet

The lack of serious research related to miscarriages of justice finally ended with Hugo Bedau and Michael Radelet’s landmark study “Miscarriages of Justice in Potentially Capital Cases,” published in the Stanford Law Review (Bedau and Radelet, 1987). The authors of this research identified 350 wrongful...