Convicting the Innocent: Where Criminal Prosecutions Go Wrong

Posted by Barbara Etter on 7 July 2013 | 1 Comments

Just started reviewing Convicting the Innocent: Where Criminal Prosecutions Go Wrong by Brandon L. Garrett (Harvard University Press 2011). In the book, Garrett examines what went wrong in the cases of the first 250 wrongfully convicted people to be exonerated in the US by DNA testing. Garrett provides chapters on:

  • contaminated confessions;
  • eyewitness misidentifications;
  • flawed forensics;
  • trial by liar;
  • innocence on trial;
  • judging innocence;
  • exoneration; and
  • reforming the criminal justice system.

A uniquely valuable part of his book is a 7 page statistical appendix (pp.277-284) which provides a quantitative overview of the wrongful convictions, their consequences and the factors that contributed to them.

Of the 250 exonerees, 17 were sentenced to death. 80 were sentenced to life in prison. Overall, they served an average of 13 years in prison (p.5). All but 4 were male. At least 18 were mentally disabled. 155 were black, 20 Latino, 74 white and 1 Asian. The crimes of the exonerees included Rape (68%), Murder (9%), Rape and Murder (21%) and other (2%). The evidence supporting exonerees' convictions was (p.279):

  • Confession 16% (40)
  • Informant 21% (52)
  • Forensic Evidence 74% (185)
  • Eyewitness 76% (190)

The flawed trial evidence for each of these categories was (p.280):

  • eyewitnesses 88% or (141/161)
  • forensic testimony 61% or (93/153)
  • Jailhouse informants 93% (26/28)
  • Confessions 95% (38/40)

The book poses some interesting questions in its introduction such as:

  • Why didn't forensic science show at trial that these people were innocent?;
  • Why didn't defence lawyers prevent convictions of their innocent clients?
  • Why didn't appeals or habeas corpus review set innocent people free?
  • Why did it take so long for innocent people to be exonerated?

The author argues that the 250 cases are just the "tip of the iceberg" in relation to wrongful convictions (p.11).

I have chosen to focus on issues of particular interest to me, namely flawed forensics, informants and the role of the legal system and its various players in the wrongful convictions.

In relation to forensics, forensic evidence was present in 74% or 185 of the DNA exonerees' cases. It was the second most common type of evidence, after eyewitness evidence (p.89). Garrett found two types of recurring problems with the forensics: reliability and validity (p.89). Garrett found, for instance, in 61% of the trials where a forensic analyst testified for the prosecution, the analyst gave "invalid testimony" in areas such as serology, hair comparison, bite mark comparison, shoe print comparison and fingerprint comparison. Garrett states (at p.90):

All of this invalid testimony had something in common. All of it made the forensic evidence seem like stronger evidence of guilt than it really was.

The study found that most forensic testimony by prosecution analysts was either invalid (61%) or vague (12%) (p.280).

Garrett comments (at p.91):

Once judges decide, without looking very carefully, that the methods are acceptable, they do nothing if experts provide exaggerated conclusions on the witness stand. Judges do not examine the validity of the conclusions that forensic analysts reach. Why have judges ignored basic requirements that expert testimony be reliable and valid? Judges assumed that forensic analysts adhered to scientific standards. In the rare event that one crossed the line, then judges assumed that cross-examination by the defense lawyer would illuminate the inaccuracy and help the jury to understand the truth. As one crime lab director conceded, judges "have given us a free ride".

Garrett points out that most of the forensic analysts worked for the police or local law enforcement crime labs. He states that these analysts report to law enforcement and see themselves working for law enforcement. He suggests that some of these analysts may have been susceptible to "cognitive bias" based on their role working for law enforcement and based on the other information that they were given about the cases they worked on (p.93).

The book then looks at what role lawyers were playing in allowing all of the unreliable, invalid and erroneous forensic analysis to happen (p.111). Garrett comments on the role of the prosecutor, who is responsible for eliciting the evidence. He comments on cases where prosecutors exaggerated the science in their closing arguments (p.112).  He states that while prosecutors may not misrepresent facts in evidence, they may make arguments concerning inferences to be drawn from the facts. He states that there may be a fine line between properly drawing inferences and mis-stating facts. Judges, he says, typically only order a new trial in egregious cases in which the conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process" (p.112). Many of these exaggerations may have left the jury with a faulty impression of what the science had actually shown. Garrett recounted a relevant case (p.112):

The Illinois courts granted Steven Linscott a new trial based on a finding of egregious prosecutorial misconduct during closing arguments concerning the forensic evidence. The appellate court damningly held that the prosecutor "simply made up" a claim that was contrary to what the analyst had said and purported to make the serological evidence far more powerful. In affirming, the Illinois Supreme Court noted, "A prosecutor must confine his arguments to the evidence and to 'reasonable inferences' that follow from it ... We believe that the prosecutor in the instant case contravened this fundamental rule'.

Garrett states that just as important as the question of prosecutors' behaviour is that of defence lawyers (p.113).  He states:

Defense lawyers rarely made any objections and they rarely effectively cross-examined forensic analysts who provided invalid science testimony. Indeed, in forty-seven cases, or half of the ninety-three cases involving invalid forensic testimony, the defense lawyers failed to ask any questions at all about the areas in which the analyst testified erroneously. In at least twelve cases, defense counsel failed to ask for DNA testing that could have proved their client's innocence.

In addition, defense experts testified in only twenty-one of the exonerees' trials (p.113) for a variety of reasons including lack of funds and a lack of independent experts (see also p.163). Garrett tellingly comments (p.113):

In criminal cases, the presentation of forensic science testimony is almost always one-sided.

Garrett comments that over half of the 250 exonerees, or 128, had one or more of the problems discussed in forensic science chapter: invalid, unreliable, concealed, or erroneous forensic analysis (p.114) (emphasis added). Garrett argues that the exoneree cases show that we cannot depend on the adversarial process to correct forensic errors (p.114). He states that because of these structural deficiencies in our criminal justice system, the responsibility for adopting sound scientific practices has rested with the forensic scientists themselves. Yet these wrongful convictions have typically not led to audits or reform (p.115). Garrett comments that more should be done to examine the methods and conclusions of forensic analysts because the unscientific testimony in the exoneree trials may be part of a worrisome problem extending far beyond known wrongful convictions. However, he expresses some optimism for the future.

Garrett also considers "trial by liar" and discusses the role of informants in wrongful convictions (pp.118-144). He states that informants may lie in exchange for a prosecution deal. Indeed, Garrett found that 21% of the exonerees  (52 out of 250 cases) had informant testimony at their trials (p.124). In almost all of the cases, the informant reported incriminating statements allegedly made by the defendant. Garrett says that he was most amazed by how the most aggressive informants delivered "made to order" statements neatly moulded to the litigation strategy of the State (p.124). Garrett points out the need to be careful about stated motives for testifying (p.138). Interestingly, he also comments that some informants in the exoneree cases were potential suspects and may have sought to cooperate to avoid being prosecuted (p.141). He further comments (pp.141-142):

The other witnesses and informants had no way of knowing what happened at the crime scenes, but the level of specificity in many of their statements suggests that police may have contaminated the investigation ... Thus, although it is often crucial that cooperating witnesses in the community come forward to help police solve crimes, police can also exercise undue pressure over them, and in some cases, police may have disclosed crime scene facts to them.

Garrett states that informant testimony should be subject to far more searching review. For example, he suggests that statements could be videotaped (p.143). He comments that the exoneree trials illustrate how wrongful convictions can result if informant testimony is freely admitted without meaningful scrutiny or precautions (p.143).

Garrett then looks at the concept of "Innocence on Trial" and examines how the cases were presented and defended at court. He found that what followed the prosecution case was typically a very short defense case that did little to present the jury with an alternative account (p.148). He comments (pp.148-149; see also p.164):

Three reasons explain why the defense case was usually so weak. First, the defendants had little ability to locate evidence of their innocence. The primary investigators of crimes are the police; they work for the prosecution, and their work may be well under way or completed by the time that these people even became suspects. Second, it is inherently difficult to convincingly prove that one did not commit a crime. It is not easy to have an alibi. One may not remember what one was doing on an unremarkable evening many months ago. Indeed, it might be suspicious if one did have a vivid recollection of that night. Third, the defense lawyers often did not effectively challenge the prosecution case. The defense called, on average, less than half as many witnesses as the prosecution ... Lawyers may not have known that these cases were not ordinary, that their client's protests of innocence were actually true. And while we do not know how often this occurred, in some exonerees' cases, the police or prosecutors concealed evidence of innocence from defense lawyers. (emphasis added)

Garrett also stresses that the State has a distinct "head start" in assembling its case. Most exonerees did not obtain a lawyer until after they were arrested. As Garrett states (p.149), by the time defense lawyers were involved, witnesses may have been harder to locate and the police may have largely closed their investigation.

Garrett states that the press also played a role in the lead up to the trials (p.150). He reports that studies have shown that jurors are far more likely to convict in cases in which there is pretrial publicity (p.150). Sensational coverage may highlight gruesome aspects of the crime, which may bias jurors. In addition, extensive coverage fueling public outrage may also increase pressure on police to close cases, and on prosecutors to win them. Garrett also comments that a jury's confidence in the prosecution's account of guilt may be heightened when the defense fails to or is unable to offer a credible competing story about innocence (p.154). He stated (p.154):

The problem encountered by these innocent people and their lawyers was that they typically had no way to convey their innocence in a believable way. Asserting innocence was all that many exonerees could do. Many simply had no compelling proof of their innocence.

Garrett points out that in some exonerees' trials, the defense literally made no affirmative case; the defense lawyers simply rested their cases as soon as the prosecution finished, putting on no witnesses of their own (p.155). But more typically, the defendant testified on his/her own behalf and offered an alibi, perhaps with a few witnesses in support. Most alibis in the exoneree cases were weak. Garrett comments (p.157):

Such alibis were vulnerable to prosecution attacks and could even be turned into a liability. The State could argue that an alibi was concocted and that this was evidence of the defedant's deception. For some of the crimes, particularly the murders where the time of death could not be established precisely, it could not be determined exactly when the crime occurred. Without knowing the time that the crime took place, one would have to establish an alibi over a long and vaguely defined time period.

Garrett states that there was no shortage of evidence of "subpar" work by some of the defense attorneys (p.165). However, studying the degree to which substandard lawyering mattered raised many challenges (p.166). Garrett comments that forensic evidence was a glaring area in which defense lawyers were ineffective (p.167).

Garrett also examined police and prosecutorial misconduct (p.167). The most common prosecutorial misconduct claims that exonerees raised after they were convicted were claims that prosecutors concealed evidence from the defense and that they misled the jury during their opening or closing arguments (p.168). Garrett says this is a difficult area because, as with defense lawyering, criminal procedure standards are "extremely forgiving" (p.168). Garrett states that much prosecutorial misconduct remains hidden because it is rarely investigated. It is almost unheard of for prosecutors to be disciplined or sanctioned for misconduct (p.168). He provided specific comment on prosecution closings and stated (p.170):

Prosecutors almost always countered any claim of innocence quite directly in their closings arguments. Some responded forcefully and with outrage. They used the claim of innocence against the defendant, to argue that the defendant was not only guilty, but a liar.

Garrett also states that police misconduct is largely hidden (p.168).  However, it is known that in many of the exoneree cases, the defense was never told about significant evidence (p.169). In at least 22 cases, it emerged that police failed to disclose forensic analysis helpful to the defense (pp.169-170). In still other cases, it later emerged that informants who had denied receiving any kind of deal had in fact obtained a deal. In still other cases, prosecutors or police had concealed evidence supporting the defendant's alibi or evidence of third-party guilt (p.170).

Garrett refers to the "tilted playing field" and comments (p.176):

All of these trials revolved around the question of innocence, and these innocent people did not present a strong defense, in contrast to the prosecution, which had access to substantial investigative resources, and presented confession, eyewitness, forensic, and informant testimony that often seemed powerful at trial.

He outlined some of the problems mentioned above and commented that these issues are deeply ingrained and implicate the entire structure of our criminal justice system (p.176).

Interestingly, at more than half of the exonerees' trials or 53% (110 of 207 trials), the exonerees took the stand at trial to claim their innocence (p.160).

Garrett also considers the role of the judge and how well the criminal justice system handled the cases of these innocent people after their trials and convictions (p.183). He referred to the notion that a court on appeal will correct a mistaken conviction as the "Upper Court Myth" (p.183). He points out that very few cases are ever reversed on appeal and post-conviction review - no more than 1% or 2% (p.183). Referring to research in this area, he states that the appellate court knows no more than the jury and the trial judge and has a limited role. Garrett found that compared to the normal 1 to 2%, exonerees earned higher numbers of reversals - a 13% reversal rate - in criminal appeals and post conviction proceedings, that they brought before they obtained the DNA testing that exonerated them. While Garrett thought that this might be the courts uncovering flaws, rape and murder trials apparently produce higher rates of reversible errors (p.184). Garrett states that when these innocent people did challenge the evidence that had led to their convictions, they were very rarely successful (p.184).

Garrret states that while many of the trial errors were "ominously harmful", the judges reviewing the exonerees' claims often called these errors "harmless" and even referred to the perceived strength of the prosecution case and the likely guilt of the petitioners (p.185).

Garrrett reviewed the situation in relation to forensic evidence and appeals and commented (p.190):

These decisions are part of a real abdication of responsibility by judges to ensure that sound science is presented in our courtrooms. Not only did trial judges neglect their duty as gatekeepers to prevent experts from using unreliable methods or offering exaggerated conclusions on the stand, but after the convictions, in the cases where these errors were pointed out, judges looked the other way and dismissively ruled that the testimony was "tolerable" or probably did not make any difference at the trial.

Garrett asks why did so few of the exonerees succeed in their appeals or reviews. He states that the appellate and postconviction process is not designed to review factual errors. Judges view their role chiefly to correct legal errors and are reluctant to second-guess the verdict of the jury (p.193). Even where there has been a clear violation of a legal rule, judges will often insist that the error was "harmless" (p.193). Garrett refers to the unwillingness of judges to take innocence-related claims seriously (p.194).

Garrett points out that the task of the postconviction judge is to sort the errors that are "plainly harmless" from those that "appear ominously harmful". The US Supreme Court has developed a test for determining whether errors made at a criminal trial were so egregious that a new trial should be granted, called the "harmless error test" (p.200). Harmless error analysis, where the judge replays the entire trial and decides holistically whether an error made a real difference, is notoriously flexible. Judges may also be susceptible to "confirmation bias" (p.201). Many of the 250 exonerees argued that the trial judges in their cases had made errors that had contributed to their convictions. But in most of their cases, the appellate judges ruled that any errors made at trial were harmless; in other words, mistakes were made, but the defendant was clearly guilty, or regardless whether any mistakes were made, they did no harm (p.201). There was also evidence that some judges were animated by a belief that these innocent people were guilty and not just that the errors raised were of an inconsequential nature. In 10% of these exonerees' cases, courts were so sure of guilt that they called the evidence of guilt "overwhelming" (p.202). Judges rejected every claim of innocence in which an exoneree argued that he should be released based on newly discovered evidence of innocence (p.202).

In post-conviction proceedings, ineffective assistance of counsel was one of the most frequently raised claims. 32% of the DNA exonerees asserted that their trial was unfair because their defense lawyer was inadequate (p.205). Not only did exonerees raise claims challenging their trial lawyers as inadequate, but even more raised claims that prosecutors played a role in their conviction (p.207). Garrett states that the prevalence of non-disclosure (Brady) violations, allegations of prejudicial prosecution arguments and other claims of improper conduct in such cases suggest that we should take the problem of prosecutorial misconduct far more seriously (p.209).

Garrett comments (p.211):

The main focus of this book is on reforming criminal investigations to prevent wrongful convictions in the first instance, and not on the post-conviction process, which serves only as a backstop. Even an improved postconviction system still must overcome the deep institutional reluctance of judges to reverse criminal trial verdicts.

Garrett also spends time explaining the inordinate delays that occur in the exoneration process and life after exoneration.

The final chapter deals with reforming the criminal justice system. It also discusses the concepts of "cognitive bias" and tunnel vision or "confirmation bias", particularly amongst police (p.266). Garrett comments that it is hard to imagine an error of greater significance in our criminal justice system than a wrongful conviction. Yet the response to these errors has often been inaction. He comments that it is perhaps because no one is "flying the plane", that there is too much fragmentation and not enough coordination (p.268). There is also a lack of accountability.

Preventing wrongful convictions is also discussed. Garrett concludes (p.274):

In this book, I have shown how the criminal justice system convicted the innocent. The errors in these exonerees' cases were not isolated accidents. They were caused by systemic failures. Their cases display clear patterns that can tell us how to make the system far more accurate. We cannot give the 250 exonerees back the years they spent in prison for crimes they did not commit. But we can dedicate ourselves to learning from what went wrong.












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  • Congratulations Barbara. This is a great review of an obviously important book. The problems which have arisen in the US are common features of the Australian cases too. I wish that more defence lawyers and journalists would have a look at a book like this.

    Posted by Bob Moles, 12/07/2013 9:48am (5 years ago)

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