By: Brandon L. Garrett
Today we celebrate international Wrongful Convictions Day, for the sixth time. In those years, we have seen exonerations mount in the U.S. and around the world. New laws directed at recognizing claims of innocence, preserving and testing new evidence, improving forensic science, and combating false confessions, eyewitness misidentifications, and jailhouse informant testimony, have been enacted across the country, and increasingly across the world.
The largest body of DNA exonerations, which have proved so powerful as evidence of how terribly criminal cases can go wrong, is in the U.S. At the Wilson Center for Science and Justice, I maintain a registry of data concerning such exonerations. You can read about each of these cases on the Convicting the Innocent database.
Among the over 370 DNA exonerations to date, the people in this database served an average of 14 years in prison. Less than 1 in 10 pleaded guilty to crimes that they did not commit; most of these people were convicted at a criminal trial, and some were re-convicted at multiple trials for crimes they did not commit.
Over two-thirds of these cases involved eyewitness misidentifications. At the Wilson Center, we have been working on a range of long-term projects, supported by Arnold Ventures, designed to improve the use of eyewitness evidence, including in the courtroom. You can read more about our work in a special issue of Judicature Magazine from last year, along with wonderful contributions by Dr. Tom Albright, Judge Jed Rakoff and Judge Theodore McKee. Our most recent article looked at why jurors place so much weight on courtroom confidence of eyewitnesses (spoiler: we strongly recommend that courtroom identifications not be allowed).
Over half of the DNA exonerations involved flawed forensic evidence. Next Spring, my new book, Autopsy of a Crime Lab, will be published by California U. Press. The book walks through each of the ways that forensic evidence can go wrong, from the crime scene, to the laboratory, to the courtroom.
Just last week, our Center re-launched at a powerful event with Joe Bryan. In the amicus lab course, our Duke law students wrote a brief in his case arguing that the blood pattern evidence supporting his convictions was highly flawed and scientifically unsupported. The brief was signed by leading scientists. Ultimately, Bryan was paroled in early 2019. We were joined by journalist Pam Colloff, who exposed the serious problems with the case in a series of articles in the New York Times and ProPublica, and our law student, Sarah Champion, who helped write the amicus brief.
Improving forensic science is the central goal of our work as part of the Center for Statistics and Applications in Forensic Evidence (CSAFE). Recent work has included studies of how much jurors respond to forensic expert testimony, including when the experts explain the limitations of their methods, as opposed to asserting infallibility.
Almost one-third of the DNA exoneration cases involved false confessions. We are currently reviewing police procedures regarding interrogations across the entire state of Pennsylvania, as well as eyewitness identification procedures, to assess whether best practices are being followed. The American Law Institute (ALI) recently finalized an important set of principles, that I collaborated on as an associate reporter, setting out what police agencies should do to safeguard interrogations.
Here in North Carolina we know well how seriously contaminated false confessions can occur. For example, Henry McCollum and Leon Brown spent years on death row, before DNA exonerated them three decades later – after law enforcement had claimed that they confessed in detail to a crime that in fact they did not commit. Interrogations are now videotaped in North Carolina, like in many states, but coercive police interrogation methods are not regulated any more than they were decades ago. Fortunately, better practices are slowly taking hold, but much more must be done.
Almost one-fifth of the DNA exoneration cases involved informant evidence, many of whom were jailhouse informants. In work with the American Law Institute, I recently shared with the ALI advisors and membership a substantial draft set of principles concerning informant evidence. We hope that these principles, part of the Principles of Policing project, will provide a comprehensive guide to how law enforcement can safeguard the integrity of informant evidence and avoid the use of unreliable informants.
We join our colleagues at the Duke Wrongful Convictions Clinic, our friends and collaborators at the Innocence Project, in the Innocent Network, and at innocence projects around the world, on this solemn occasion, by recognizing how the innocent have suffered for crimes they did not commit, and how far we must still go to ensure that future innocent people are not wrongly convicted.
Brandon Garrett is the L. Neil Williams professor of law at Duke University and faculty director of the Wilson Center for Science and Justice.