Perceptions of wrongful convictions amongst Americans working in the criminal justice system.

Authors Avatar by demetrius99 (student)


During the past several years the issue of wrongful conviction has received increasing attention

from state legislators, the legal system, and researchers. Much of this attention has focused on

death penalty convictions which have been set aside. As of February, 2003, postconviction DNA

testing in the United States had led to the exoneration of 123 wrongfully-convicted individuals.

To date, it is unknown how frequently wrongful conviction occurs in the United States. Also

unknown is how frequently systemic errors occur which previous research has identified as being

associated with the phenomenon wrongful conviction. The present research sought to address

this deficiency of knowledge by asking professionals who work in the criminal justice system

their perceptions regarding these issues. A 53-item survey questionnaire was administered to

four groups of Ohio criminal justice professionals: law enforcement (sheriffs and chiefs of

police), prosecutors (chief and assistant), defense attorneys (private and public defenders), and

judges (common pleas, appellate, and Supreme Court). The 798 respondents indicate they

believe wrongful conviction occurs in 1 to 3 percent of all felony convictions. With more than

2,000,000 individuals incarcerated in the nation’s prisons and jails, this error rate would signify

that between 20,000 and 60,000 individuals are incarcerated for crimes they did not commit.

Significant differences were found in group perceptions. Prosecutors and police perceive the

least error (1/2-1%), while defense attorneys perceive the most error (4-5%). Judges perceive the

national error rate to be between 1 and 3 percent. When asked their perceptions regarding nine

types of system error (police error, prosecutorial error, defense attorney error, judicial error,

eyewitness error, forensic error, false confessions, false accusations, and community pressure),

respondents, in general, indicate they believed these types of error occur “more than

infrequently,” but less than “moderately frequent.” Again, significant group differences were

found. Prosecutors perceive the least system error, while defense attorneys perceive the most

error. Police and judges’ perceptions generally moderated between the two extremes.


First, I thank God who has so richly blessed me through his Son Jesus Christ. Second, I would

not have had the motivation and strength to finish the doctorial program without the help and

support of many people. Foremost is my wife Sandy who, with her strength, was by my side

from the beginning to the end. She encouraged and rooted for me throughout the process. She

also suffered with me through the difficult times, and now rightfully shares with me the joy of

this time of accomplishment and celebration. Thank you Sandy. I also thank my children, Joe,

Tom, Heather, and Kathy, who were also a constant source of support; they know how much I

love them. I especially love them because they gave me the gift of grandchildren: Tristan,

Ashley, Brittany, Mason, and Steven. These grandchildren (and my “surrogate” granddaughter

Katie) have inspired me and provided me with many moments of happiness when I needed a

break from the daily problems of the world.

I would also like to thank my sister-in-law/daughter Vicky for her support and encouragement.

Her strength and determination was a constant inspiration to me as she pursued her own

doctorate while working and raising her sons – and my nephews – Eric, Adam, and Kris.

I would be remiss if I did not thank my daughter-in-law/daughter Marla for her encouragement,

her cheerful spirit, and her loving care of my son and grandchildren. Academic

accomplishments pale when compared to the accomplishments of a faithful and loving wife and

mother. I also would like to thank my son-in-law Eric for caring for my daughter and giving me

another grandson.

Thanks also to my “church family” at Faith Baptist Church in Oxford, Ohio. The prayers and

support of my pastor and the church members helped guide me through the difficult process of

completing and defending my dissertation.

I would also like to thank my mother and father who nurtured and protected me in the early years

of my youth, and who provided me with encouragement and love throughout my life.

Finally, I would like to thank the faculty and members of the Department of Criminal Justice at

the University of Cincinnati for their encouragement and assistance. I would especially like to

thank my committee chair, Dr. James Frank, for his tireless mentorship as he worked with me

through the seemingly endless revisions of my dissertation. He was always there to help me: day

or night, weekday or weekend. Thank you also to Dr. Robert Langworthy who first said to me,

“Have you ever considered applying for the doctorial program?” Thanks also to Dr. Edward

Latessa who gave me a chance to succeed in the graduate program (when others were doubting

my ability to do so), and encouraged me with his easy-going nature which sometimes masks his

significant skills and professionalism. Thank you also to Dr. Lawrence Travis who spent

considerable time reading the various drafts of my dissertation and provided me with valuable

criticism and direction – as he has done with so many other students at the university.


Table Of Contents

Chapter One --- Introduction ---------------------------------------------------- P. 6-24

a. “Wrongful Conviction” Defined

b. Historical and Modern Concerns About Wrongful Conviction

1. Getting Tough on Crime – Unintended Consequences

c. Extent of the Problem of Wrongful Conviction

d. Why the Topic is Important

1. Public Safety

2. Public Confidence in the Criminal Justice System

3. Individual Justice

4. Analysis of Dysfunctions of Criminal Justice System

e. Conclusion

Chapter Two --- Factors Associated With Wrongful Conviction ----------- P. 25-36

a. Eyewitness Error

b. Faulty or Fraudulent Science and “Inexpert” Testimony

c. Police Error or Misconduct

d. Prosecutorial Error or Misconduct

e. Inadequacy of Counsel

f. False Accusation

g. False Confessions

h. Community Pressure

i. ‘Why’ Do Certain Systemic Dysfunctions Reoccur?

1. Noble-Cause Corruption

2. The ‘Dirty Harry’ Problem

3. Other Reasons

j. Conclusion

Chapter Three --- Wrongful Conviction And Eyewitness Error -------------- P. 37-60

a. He Was No Doctor – The Case of William Jackson

b. Walking In Another Man’s Shoes – The Case of Jeffery Streeter

c. Eyewitness Error Research

d. Factors Associated With Eyewitness Error

1. Psychological Factors

2. Social and Cultural Factors

3. Systemic Factors

f. Mishandling of Eyewitnesses

1. Show-ups

2. Photo-spreads and Line-ups

3. Judge and Jury Evaluations of Eyewitness Testimony

g. Reducing Eyewitness Error in Pretrial and Trial Procedures

1. Pre-Trial

2. Trial

h. Conclusion


Chapter Four --- Wrongful Conviction And Faulty Forensic Identification Science

------------------------ P. 61-78

a. The Case of Fred Zain and Glen Woodall

b. Brief History of Legal Tests for the Admissibility of Forensic

Identification Evidence

c. The Extent of Forensic Identification Error

d. Reducing Forensic Identification Error

1. DNA Technology

2. Lawyers

3. Other Recommendations

e. Conclusion

Chapter Five --- Wrongful Conviction: Police Misconduct and Error ----- P. 79-91

a. A Murder and A Dream – The Case of Steven Linscott

b. Police ‘Error’ and Wrongful Conviction

c. Police ‘Misconduct’ and Wrongful Conviction

1. Suppression of Exculpatory Evidence

2. Undue Suggestiveness in Pre-Trial Procedures

3. Coercion of Witnesses

4. Coerced Confessions

5. Evidence Fabrication

d. Solutions

e. Conclusion

Chapter Six --- Wrongful Conviction: Prosecutorial Misconduct and Error

------------------------------- P. 92-106

f. Poor, Black, and Victimized – The Case of James Richardson

g. Prosecutorial Error and Wrongful Conviction

1. Plea Bargaining

h. Prosecutorial Misconduct and Wrongful Conviction

1. Suppression of Exculpatory Evidence

2. Knowingly Using False Testimony

3. Making False or Improper Statements to a Jury

4. Coercing Witnesses

5. Fabricating Evidence

i. Solutions

j. Conclusion

Chapter Seven --- Wrongful Conviction And Inadequacy Of Counsel ---- P. 107-119

a. Good Samaritan Goes to Death Row – The Case of Larry Hicks

b. The Case of Edward Honaker

c. The Case of Frederick Daye

d. Defense Attorney Incompetence or Inadequacy

e. Defense Attorney Incompetence and Factors Associated with

Wrongful Conviction

f. Why Wrongful Conviction Results from Inadequate Counsel

g. Conclusion


Chapter Eight --- Wrongful Conviction And False Accusations ---------- P. 120-127

a. On the wrong side of the Thin Blue Line - The case of Randall


b. Pursued for Eight Years – The case of Tony Cooks

c. Types of False Accusations

1. Jailhouse Snitches

d. Conclusion

Chapter Nine --- Wrongful Conviction And False Confessions ---------- P. 128-137

a. Coerced False Confessions

b. Voluntary False Confessions

c. Confessions from Three Innocent Men – The Cases of Joseph

Broderick, George Bigler, and Rudolph Sheeler.

d. Extent of the Problem of False Confessions

e. Conclusion

Chapter Ten --- Wrongful Conviction And Community Pressure ------- P. 138-144

a. The Case of Clarence Brandley

b. Reducing the Effects of Community Pressure

c. Conclusion

Chapter Eleven --- Wrongful Conviction And Other Factors ---------------- P. 145-149

a. Presumption of Guilt

b. Existence of Prior Criminal Record

c. Race as a Factor

d. Poverty as a Factor

e. Mental Incompetence

f. Jurors

g. Judges

h. Simple Mistake

Chapter Twelve --- Research Methodology -------------------------------------- P. 150-161

a. Sample Population and Methodology

1. Target Population

2. Sampling Frame

3. Sampling Method/Survey Administration

4. Sample Size

b. Data Sources

1. Data Collection

2. Data Sources

c. Study Variables and Measures

d. Statistical Analysis

e. Exhibits


Chapter Thirteen --- Findings ------------------------------------------------------ P. 162-196

Chapter Fourteen--- Discussion --------------------------------------------------- P. 197-216

References and Cases --------------------------------------------------------------- P. 217-224

Appendix ---------------- -------------------------------------------------------------- P. 225-241



Table 1 Survey Response Rates ---------------------------------------------------- P. 158

Table 2 Group Comparisons – Sociodemographic Variables ------------------ P. 162

Table 3 Percentages – Wrongful Conviction in Own Jurisdiction -------------- P. 169

Table 4 Significance Levels – Wrongful Conviction in Own Jurisdiction ---- P. 170

Table 5 Percentages – Wrongful Conviction in the United States ------------- P. 171

Table 6 Significance Levels – Wrongful Conviction in the United States ---- P. 172

Table 7 Perceptions of Five Types of Police Error ------------------------------ P. 173

Table 8 Percentages – Additive Scale Variable “Police Error” ---------------- P. 174

Table 9 Significance Levels – Additive Scale Variable “Police Error” ------- P. 175

Table 10 Percentages – Police ID Procedures Contribute to Misidentification - P. 176

Table 11 Percentages – General Reliability of Police Evidence ------------------ P. 177

Table 12 Perceptions of Five Types of Prosecutorial Error ------------------------ P. 178

Table 13 Percentages – Additive Scale Variable “Prosecutor Error” ------------ P. 179

Table 14 Significance Levels – Additive Scale Variable “Prosecutor Error” --- P. 180

Table 15 Percentages – General Reliability of Prosecutorial Evidence ---------- P. 181

Table 16 Perceptions of Five Types of Defense Error ----------------------------- P. 182

Table 17 Percentages – Additive Scale Variable “Defense Attorney Error” --- P. 183

Table 18 Significance Levels – Additive Scale Var. “Defense Attorney Error”- P. 184

Table 19 Percentages – How Well Defense Attorneys Defend Clients ---------- P. 185

Table 20 Perceptions of Four Types of Judicial Error ------------------------------ P. 186

Table 21 Percentages – Additive Scale Variable “Judicial Error” ---------------- P. 188

Table 22 Significance Levels – Additive Scale Variable “Judicial Error” ------ P. 188


Table 23 Percentages – Reliability of Judicial Decisions ------------------------- P. 189

Table 24 Percentages – Good Faith Eyewitness Misidentification ----------- P. 190

Table 25 Percentages – Intentional Eyewitness Misidentification ----------- P. 191

Table 26 Percentages – General Reliability of Eyewitness Testimony ------- P. 191

Table 27 Percentages – Good-Faith Error by Forensic Scientists -------------- P. 193

Table 28 Significance Levels – Good-Faith Error by Forensic Scientists ---- P. 193

Table 29 Percentages – Intentional Misrepresentation/Forensic Scientists --- P. 194

Table 30 Significance Levels – Intentional Misrepresentation/F.Scientists --- P. 195

Table 31 Percentages – Reliability of Forensic Expert Conclusions ----------- P. 195

Table 32 Percentages – False Accusations ----------------------------------------- P. 196

Table 33 Percentages – False Confessions ------------------------------------------- P. 197

Table 34 Percentages – Community Pressure --------------------------------------- P. 198

Table 35 Percentages – Acceptable Level of Wrongful Conviction ------------- P. 199

Table 36 Percentages – Changes in the Criminal Justice System ----------------- P. 200

Table 50 Significance Levels – Changes in the Criminal Justice System -------- P. 210





Justice. The word may be defined as “the constant and perpetual disposition to render

every man his due; fairness; conformity to law; merited reward or punishment” (The Law

Dictionary 1986). Justice, throughout history, has been viewed in democratic countries as an

ideal not only desired but also necessary to pursue. It is in the pursuit of justice, or more

specifically, criminal justice, that this dissertation is presented.

The criminal justice system in the United States primarily focuses on the concept of

justice in regard to two entities: the criminals themselves – and their victims. Justice for

criminals usually entails some type of sanction that will punish perpetuators in retribution,

and will dissuade them (and others who may be similarly predisposed) from committing

future crimes. Sanctions may involve incarceration in order to physically separate the

criminal from the rest of society, and/or sanctions may involve rehabilitative efforts aimed at

“curing” the malcontent.

By properly sanctioning the offender, justice is also achieved for the victim. The

individual victim, after seeing an offender punished for the wrong that was done, gains a

sense of retribution and justice. Of course, the ‘victim’ of crime can also be defined as all the

participants in society who are adversely affected when another member of that society

violates the social contract. Justice, in this case, is accomplished when the criminal is

properly sanctioned, the public outrage is quelled, and the social “equilibrium” which was

upset by the criminal act is restored.


There is, however, another category of individuals to whom the focus of justice

within the criminal justice system is not always tendered. It is a category of individuals who

are infrequently, but inexcusably too often, injured and ignored by the system as the process

of law grinds ever so slowly but ever so fine. It is a category of individuals who often do not

receive justice from the criminal justice system – but instead receive injustice. This category

of individuals is the wrongly convicted.

There is increasing evidence that thousands of innocent individuals who have been

wrongfully convicted are now incarcerated in U.S. jails and prisons (Bedau and Radelet

1988; Bedau and Radelet 1987; Borchard 1932; Brandon and Davies 1973: Frank and Frank

1957; Gross, 1996; Huff et al. 1996; Huff and Rattner 1988; McCloskey 1989; MacNamara

1969; Radelet, Bedau, and Putnam 1994; Radin 1964; Scheck et al. 2000). Research

estimates of the number of individuals wrongfully incarcerated in prisons and jails range

from one-half of one percent to as high as twenty percent (Huff and Rattner 1988). The

Justice Department reports that there are now in excess of 2,000,000 people behind bars (BJS

2000). According to estimates, therefore, in terms of raw numbers, between 10,000 and

400,000 wrongfully convicted individuals occupy this country’s prisons. Even if one accepts

an error rate at the low end of the spectrum, say a one-percent, this would translate into

20,000 individuals now incarcerated in prison for crimes that they did not commit.

Wrongfully convicted individuals may experience such ill-fated circumstances as

being the victim of false or mistaken identification, fraud, inadequate legal counsel,

overzealous prosecution, a lack of financial resources to offset the prosecutorial resources of

the state, or racial bias on the part of the police, jury, prosecutor, or judge. Innocent

individuals can be wrongfully convicted simply because they lack an ability to articulate their


defense. Numerous articles and books have been published which describe in detail

hundreds of these types of cases involving individuals who, after conviction, were able to

later prove that they were innocent. (Bedau and Radelet 1988; Bedau and Radelet 1987;

Borchard 1932; Brandon and Davies 1973: Connery 1996; Cooper, Cooper, and Reese 1995;

Frank and Frank 1957; Frisbie and Garrett 1996; Gross, 1996; Huff et al. 1996; Huff and

Rattner 1988; Hirsch 2000; Humes 1999; Linscott 1994; McCloskey 1989; MacNamara

1969; Potter and Bost 1997; Protess and Warden 1998; Walker and Starmer 1999; Radelet,

Bedau, and Putnam 1994; Radin 1964; Scheck et al. 2000.)

Researching the phenomenon of wrongful conviction, for a variety of reasons, is a

difficult task to undertake. The hidden nature of so many aspects of this problem creates

numerous tribulations to the researcher attempting to determine the true extent of the

problem. Many wrongful convictions are often the result of professional mistake,

incompetence, bias, prejudice, or blatant corruption – attributes most criminal justice

professionals do not like to air in the public forum. Other difficult to determine variables

such as witness error, community pressure, false accusations, and false confessions are also

associated with wrongful conviction and present logistical barriers to any study of the

problem. Because of the hidden nature of so many aspects of the phenomenon of wrongful

conviction, the harmful actions of criminal justice professionals and non-professionals are

often never discovered – and therefore cannot be researched. When wrongful convictions are

discovered, it is often only by serendipity. For example, the movie The Thin Blue Line

(which led to the release of Randall Adams who was falsely convicted of killing Dallas,

Texas, police officer Robert Wood in 1976) was filmed only due to unusual circumstances.

Film-maker Errol Morris happened to be filming a documentary about the prison psychiatrist


at the prison where Adams was incarcerated and, during the project, Morris became aware of

the unusual circumstances surrounding Adam’s case. Morris set out to document the facts

surrounding Adam’s innocence – facts every appellate court that reviewed Adam’s case over

a ten-year period had refused either to believe or consider. Once Morris provided the

necessary financial resources to properly investigate the case, Adam’s innocence was

substantiated and the Texas Governor pardoned him in 1988. As one reviews the numerous

stories of wrongly convicted individuals who were fortunate enough to have their guilty

verdicts overturned, it is shocking to see how many of these cases were solved by pure

chance, instead of by the mechanisms of a rational criminal justice process

Also impeding research concerning wrongful convictions is an ethos of denial that

permeates among professionals in the criminal justice system (Huff, Rattner, and Sagarin

1996; Scheck, Neufield, and Dwyer 2000). When confronted with the possibility that a

mistake has been made – that an innocent person may have been convicted of a crime – many

of those involved in the process (police, prosecutors, defense attorneys, judges, jurors,

eyewitnesses) have a tendency to deny such a thing could happen; they often refuse to accept

the fact that they participated in a trial which sent an innocent individual to prison (Sheck et

al. 2000). Eyewitnesses who have identified an accused in court will often cling to their

story, even after being presented with overwhelming evidence that they had misidentified the

accused or after the real perpetrator has been apprehended and has admitted to the crime (see

Commonwealth v. Walter Tyrone Snyder 1986). Even after convictions are overturned in

appeals court, some prosecutors will refuse to admit that they prosecuted the wrong

individual and instead will protect their positions by taking bizarre stances or reinventing a

case. For example, in rape cases where new evidence is found which proves a convicted


individual’s semen was not present in the rape kit, prosecutors will sometimes invent new

scenarios to fit the new facts, suggesting that the person who was convicted of the crime

must have been involved in a gang-rape – a theory that was never presented at trial because

there was no evidence that such an incident had ever taken place. Scheck et al. note:

They [the prosecutors] cling to the original verdict by

contriving new theories to explain why the semen of

another man, not the convicted party, was discovered in the

rape kit. Perhaps, they say, two men participated in the

rape, or three, even though the victim only noticed one

man. The foreign semen is explained by these new parties

to the crime, first mentioned years after the fact: the

unindicted co-ejaculator (2000: 248).

Further, in order to prevent wrongful convictions from being overturned, criminal

justice officials will sometimes steadfastly hold to technical appellate dates and will not

allow new testing to be completed on evidence that may exonerate an individual. The case of

Clyde Charles provides a good example. Charles was wrongfully convicted in 1981 of

raping a woman in Louisiana. After spending 10 years in prison, Charles learned from other

prisoners about new DNA technology that could prove his innocence. He requested that the

rape kit evidence in his case be tested to prove that he could not have possibly been the

rapist. For seven-years the state courts denied his request to compare his DNA to the semen

sample stored in the rape kit. Finally Charles’ sister learned of the Innocence Project in New

York – a non-profit organization that helps wrongly convicted individuals win their freedom

through DNA tests. Barry Scheck, a founder of the Innocence Project, filed a federal civil

rights lawsuit on Charles’ behalf and was able to get the old evidence tested. The test

conclusively proved that Charles could not have been the rapist. Thirty days after the tests

proved Charles’ innocence, he was released after serving 17 years in prison – 7 of those years


unnecessarily because the state refused to reevaluate the evidence against him using new

DNA technology (Clendenning 2000).

Bedau and Radelet, in their study of miscarriage of justice in death-penalty cases


No jurisdiction (in the United States) keeps a list of its

erroneous convictions, even in murder cases. Moreover,

most state officials are apparently not eager to assist

investigators in identifying such cases from whatever records

they might have available. In no state, for example, were we

able to obtain a list of defendants who had been pardoned

after conviction or after a sentence of death (1987: 28).

This atmosphere of resistance by responsible officials throughout the criminal justice process

is certainly not conducive to the gathering of facts that will lead to a better understanding of

the phenomenon of wrongful conviction.

The attitudes of the criminal justice professionals who are on the ‘front-line’ of the

war-against-crime are of great importance to the subject of wrongful conviction. These are

the individuals (police officers, prosecutors, defense attorneys, judges) who make the day-today

decisions concerning the administration of justice to the accused. Do these professionals

believe that wrongful convictions occur? If so, to what extent? Do they believe wrongful

conviction is a small problem or a large problem? Are they aware of the factors research has

indicated contribute to wrongful conviction? Almost 20 years ago Rattner (1983) asked

these types of questions in a survey of criminal justice professionals. The sample surveyed

included Ohio presiding judges of county common pleas courts, county prosecuting

attorneys, county public defenders, county sheriffs, and chiefs of police in major Ohio cities;

also surveyed were attorney generals from all fifty states, the District of Columbia, American

Samoa, Guam, and Puerto Rico. Since Rattner’s survey in 1983 much has occurred that may


have affected the perceptions and attitudes of those he surveyed. Improved forensic science,

especially DNA research, has led to the release of numerous wrongfully convicted

individuals from prison – many from death row. Some of these exonerations received

widespread news coverage that served to sensitize many individuals, both inside and outside

the criminal justice system, to the problem and prevalence of wrongful conviction. This

dissertation will replicate and expand on Dr. Rattner’s survey in order to determine, in light

of the historical events that have occurred in the past 20 years, if perceptions and attitudes

among criminal justice professionals have changed regarding wrongful conviction. The

results of the survey are discussed in Chapter fourteen. This dissertation, therefore, is

intended to accomplish two objectives: (a) examine the separate and combined effects of the

various factors associated with the phenomenon of wrongful conviction, and (b) determine

current perceptions and attitudes of criminal justice professionals as they relate to the

phenomenon of wrongful conviction.

What follows next is a definition of “wrongful conviction” and a short discussion of

four categories of wrongful conviction. A brief historical summary of research concerning

wrongful conviction is then outlined, and comments are made concerning the effect of the

current ‘get-tough’ era on wrongful conviction. Finally, in this introductory chapter, there is

a discussion of the extent of the problem of wrongful conviction and why the problem is

important to study.

“Wrongful Conviction” Defined

For the purposes of this dissertation, wrongful conviction will be defined as applying

to people who have either pleaded guilty to criminal charge(s) or have been tried and found


guilty; and who, notwithstanding plea or verdict, are in fact innocent. This is the same

definition that was used by Huff, Rattner, and Sagarin (1996) in their research of “convicted

innocents.” This is a narrow definition that does not take into account other cases of injustice

that result from various dysfunctions of the criminal justice process that lead to the

punishment of a wrongfully accused individual before a conviction. For example, the

definition of wrongfully convicted could be expanded to include those innocent individuals

who are wrongfully charged never convicted. Often these individuals spend days, months,

and even years incarcerated in a jail before the cases against them are either dropped or a

judge or jury acquits them.

Wrongfully convicted innocent individuals can be divided into four categories based

on the ultimate disposition of their cases. The first category includes those who are initially

found guilty of a committing a crime but are fortunate enough to have their innocence later

announced by a judge in a court of law. Often these individuals are exonerated due to such

circumstances as improved forensic science, the confession of the actual offender, or the

discovery of exculpatory evidence that was not available at trial. This type of case is

illustrated in People of State of New York v. Marion Coakley (1983). In this case Marion

Coakley was wrongfully convicted of rape and sentenced to fifteen years in prison. After

being incarcerated for four years, new DNA evidence proved his absolute innocence. Upon

his release, Judge Burton Roberts stated, “I was not involved in the original trial ……. But

insofar as I am capable of representing the judiciary of the State of New York, I am sorry.

And those words are so weak. I am sorry you have suffered this miscarriage of justice.”

(Scheck et al. 2000: 33). (See also Commonwealth v. Snyder 1986; State v. Brown 1977;

State of Georgia v. Calvin Crawford Johnson, Jr. 1983.) All innocent people, serving time in


prison for crimes they did not commit, hope for the day when evidence will be found that

will verify their claims of innocence and they will hear those sweet words like the ones

spoken by Judge Roberts.

A second category of the wrongfully convicted includes those individuals who never

have their innocence “proven” in a court of law – but instead have their guilty verdicts set

aside by an appellate court due to irregularities at the trial level. Often these verdicts are set

aside due to police, defense attorney, prosecutorial, or judicial misconduct/ mistake/

incompetence (see Brown v. Mississippi 1936; Miller v. Pate 1967;Oklahoma v. Robert Lee

Miller 1987). An example of the type of professional misconduct that leads to this type of

wrongful conviction is currently being investigated in Los Angeles, California. What is

described by the Los Angeles Times as the “Rampart Corruption Scandal” involves police

officers operating in the Rampart section of Los Angeles who have either admitted to, or

have been accused by fellow officers of, planting false evidence (guns and drugs) on

individuals whom they arrested. The January 27, 2000, issue of the LA Times reports the

headline “L.A.P.D. Chief Calls for Mass Dismissal of Tainted Cases.” In this article, Los

Angeles Police Chief Bernard C. Parks discloses that, “99 people are believed to have been

framed by disgraced ex-officer-turned-informant Rafael Perez and his former partners.”

Unfortunately, many of these “framed” suspects have already completed their jail or prison

sentences; others are still incarcerated in jails and prisons and are waiting for their

convictions to be overturned. These types of cases are typically remanded to the trial court

for retrial. Professional transgressions, however, often make it impossible for a court to

determine the actual guilt or innocence of the accused and the prosecutor will decide not to


retry the case. Because innocence is never legally established, the wrongly convicted

individual, although released, often caries the stigma of “getting off on a technicality.”

A third category includes those wrongly convicted innocent individuals who

ultimately receive a pardon from a governor (State v. Gray 1987). In these types of cases,

evidence is revealed, long after the trial, which casts doubt on the legitimacy of the

conviction. Rules of evidence concerning time limits usually estopped a court from

reviewing or rehearing the case through the normal appellate process. Again, innocence is

never proven in a court of law, and the individual receiving the pardon often continues to

carry the stigma of a person who spent many years in prison.

Finally, a fourth category of the wrongly convicted includes those innocent

individuals whom are never vindicated. They live out the full nightmare of wrongful

conviction. The actual perpetrator is never caught; no scientific breakthrough reveals their

innocence, they do not have an appellate court overturn their conviction, nor does a governor

step in and issue a pardon. Instead, they unjustly spend many years in prison, often serving

out their full sentence or being executed. They simply become lost, and indistinguishable,

from the millions of guilty prisoners now incarcerated in U.S. prisons.

Historical and Modern Concerns About Wrongful Conviction

The phenomenon of wrongful conviction, until recently, has received scant attention

from the research community. There are, however, notable exceptions. In the 18th Century,

Bentham, in Principles of Penal Law discussed punishment inflicted on the innocent;

Bentham called such a phenomenon “mis-seated punishment” (Browning 1962). In 1923

Supreme Court Judge Learned Hand stated that the criminal justice system’s “unreal dream’


was that of an innocent man convicted. Yale law professor Edwin Borchard, in his

pioneering 1932 book Convicting the Innocent, discussed 65 cases of wrongful conviction

that stretched back to the year 1812. Gardner’s Court of Last Resort (1953) did a remarkable

job investigating capital cases involving the convicted innocent. In the late 1940’s and into

the 1950’s federal judge Jerome Frank and his attorney-daughter Barbara worked essentially

alone to bring justice to the convicted innocent – their work resulting in a book titled Not

Guilty (1955). In 1963 Block wrote The Vindicators, and in 1964 Radin The Innocents; both

books attempted to call to the public’s attention the problem of convicting the innocent. In

1983 McCloskey founded Centurion Ministries, an organization dedicated to helping the

convicted innocent have their convictions overturned; by 1997 Centurion Ministries had

assisted in freeing and vindicating 19 people who had received a death sentence or were

imprisoned for life terms but were completely innocent of the crimes for which they had been

wrongly convicted.

More recently, Scott and Hirschi argue that wrongful conviction is “a problem that

may never go away and is therefore one that should be systematically and regularly

addressed” (1988:11). Clear and Cole state, “A serious dilemma for the criminal justice

system concerns people who are falsely convicted and sentenced. Whereas much public

concern is expressed over those who ‘beat-the-system’ and go free, comparatively little

attention is paid to those who are innocent, yet convicted” (2000:79). Finally, Scheck, et al.

suggest, “A more commanding view (of the factors prevalent in cases of wrongful

conviction) awaits further study by legal scholars and journalists of all innocence cases”

(2000: 246).


Getting Tough on Crime – Unintended Consequences

There is a growing concern among researchers studying the phenomenon of wrongful

conviction that the current ‘get-tough’ philosophy of crime control in the United States, with

its increased focus on identifying, apprehending, and prosecuting criminals, has produced the

unintended consequence of increasing the incidence of wrongful conviction (Huff, Rattner,

and Sagarin 1996; Huff, Rattner, and Sagarin 1986; Radelet, Bedau, and Putnam 1992; Yant

1991). Huff et al. note, “Not surprisingly, those aspects of our criminal justice system that

emphasize crime control objectives may not only help control crime but also contribute to

system error and wrongful conviction” (1986: 534).

In today’s ‘Get-Tough Era’ unprecedented sums of tax dollars have been allocated to

hire and train more police and correctional personnel, upgrade equipment, and to enter the

computer age so that criminal justice agencies could more efficiently collect, maintain and

disseminate information (Gordon 1991). The criminal codes have been rewritten to allow

judges to impose fixed sentences that increase both the severity and length of time a

convicted criminal will spend in prison – especially for those individuals convicted of drugrelated

crimes (Clear 1994). Prisons and jails have been built and expanded at a record pace

in order to accommodate those criminals who are caught by the police and sentenced by

judges (Currie 1985). Additionally, the death penalty has been revived and its use

dramatically expanded (Clear and Cole 2000). Steps have been taken to make police, court,

and corrections agencies larger, more efficient, and more effective. In many states we see

increasing incarceration, even as crime rates decline (Blumstein 1998).


As a result of these get-tough policies, many of the intended consequences of the gettough

programs have been realized. Crime rates in the United States have dropped;

according to the FBI’s Uniform Crime Reports, in 1999 the crime index rate fell for the

eighth straight year – reaching the lowest level since 1978. The 1999 National Crime

Victimization Survey (NCVS) conducted by the Bureau of Justice Statistics found that the

violent crime rate had declined 10 percent since 1973 – reaching the lowest level in NCVS

history. According to the same survey property crime declined 9 percent – continuing a more

than 20-year decline. At the same time, the United States has experienced a large and

expanding prison population; tougher sentencing guidelines have increased the U.S. prison

population to over 2,000,000, second only to Russia in the developed world (BJS 2000). The

United States now has ten times the population of Canada, but about thirty-five times the

prison population (Mauer 1997). The Bureau of Justice (1999) reports that if current

incarceration rates remain unchanged, 9 percent of men and 28 percent of black men can

expect to serve time in prison during their lifetime. The net of law has been expanded; today

there are more than 13 million jail admissions per year (BJS 1995). There are in excess of

3.2 million individuals on probation (BJS 1998) and 685,000 on parole (BJS 1998). In sum,

during the get-tough era, crime rates have dropped, but there are millions of citizens living

under the control of the criminal justice system.

In this dissertation the task of disseminating the information regarding the statistical

and holistic successes of ‘get-tough’ is left to other researchers. The concern here is to call

attention to one of the failures, or unintended consequences, of the ‘get-tough’ policy – that

is, miscarriages of justice that result in the conviction of certain innocent individuals for

crimes they did not commit. There is increasing evidence that criminal justice professionals,


in their zeal to crack down and get-tough on crime, are, in a rush to judgment, dragging into

the system increasing numbers of innocent individuals who are being arrested, convicted, and

sentenced to prison (sometimes death row) for crimes they did not commit (Huff, Rattner,

and Sagarin 1996; Huff, Rattner, and Sagarin 1986; Scheck, Neufeld, and Dwyer 2000).

Often these falsely accused individuals are never convicted of a crime but, never the less,

spend months in local jails while their cases slowly plod through the machinery of the court

process until they are eventually released; those who are wrongfully convicted may languish

in prison for many more years.

Extent of the Problem of Wrongful Conviction

How extensive is the problem of wrongful conviction? Many researchers estimate

that only a small percentage of those individuals who are convicted and sent to jail or prison

are wrongfully convicted. However, it is possible that such research is limited by

methodological problems, and has exposed only the metaphoric tip-of-the-iceberg concerning

the problems of wrongful conviction.

James McCloskey, founder and director of Centurion Ministries, Inc., a non-profit

organization that has freed many wrongly convicted people over a 20-year period states:

It is my perception that at least ten percent of those

convicted of serious and violent offenses are completely

innocent…… I realize that I am a voice crying in the

wilderness, but I believe that the innocent are convicted

more frequently than the public dares to believe, and far

more frequently than those who operate the system dare to

believe. An innocent person in prison, in my view, is about

as rare as a pigeon in the park (1989: 54).


Current, educated estimates of wrongful conviction run from less than one percent to

as high as twenty percent. Based on data they received from 229 criminal justice

professionals, Huff and Rattner (1988) estimated that false positives constituted less that one

percent of all felony convictions. These researchers warned that, although the percentage

appears small, in terms of the human suffering of wrongfully convicted individuals, one

percent of those arrested and charged with index crimes in 1981 would translate into about

12,000 convictions of innocent citizens in that year alone. Clear and Cole (2000) also

estimated that about one percent of felony convictions are in error. However, estimates of a

one percent error in felony convictions may be low. Radin (1964) quotes a highly respected

judge who, using a legalistic definition of wrongful conviction, estimated that each year in

the United States there might be a five percent false positive rate (14,000 wrongful

convictions at that time). Huff and Rattner’s review of the literature concerning false

positives, “revealed cases ranging from a very few cases each year up to twenty percent of all

convictions” (1988: 134). If the twenty percent false positive estimate were accurate, based

on a national prison population of 2,000,000 (BJS 2000), this would translate into 400,000

falsely convicted individuals in the nations prisons.

Much of the attention given to the phenomenon of wrongful conviction by the

research community, the press, and the film media, has focused on the wrongful

conviction of individuals on death row. (This attention is understandable due to the

finality of this form of punishment and the inability of the criminal justice system to

correct an error once an innocent person has been executed.) For example, it was

recently reported in a major professional publication that in 1999 eight prisoners on

death row in the United States were exonerated of the crimes of which they had been


convicted, and that “these eight exonerations show that wrongful convictions, although

unusual, occur regularly” (Criminal Justice Weekly 2000: 1.4.24). On January 31,

2000, reported the headline Illinois Suspends Death Penalty. The story

noted that Illinois Governor George Ryan had “imposed a moratorium on the state’s

death penalty.” Governor Ryan is quoted as stating “We have now freed more people

than we have put to death under our system – thirteen people have been exonerated and

twelve have been put to death. There is a flaw in the system, without question, and it

needs to be studied.” Due to the fact that recent state and federal legislation has

shortened the length of time inmates have before their execution (The Death Penalty

Information Report 1997), there is now an increased danger that wrongfully convicted

individuals will be executed. The average time spent on death row before release

[because of innocence] is about seven years. Currently, the average time between

sentencing and execution is eight years. If that time is cut in half, then the typical

innocent defendant on death row will be executed before it is discovered that a fatal

mistake has been made

Beyond the hundreds of dramatic cases of wrongly convicted individuals on deathrow

are the potentially thousands of cases of individuals wrongly convicted of non-capital

crimes who are serving long prison sentences (Bedau and Radelet 1987). Tens of thousands

of other individuals are likely to be unjustly serving relatively shorter times of incarceration

in local jails after being wrongfully convicted of misdemeanors (Huff, Rattner, and Sagarin

1986; McCloskey 1989).


Why The Topic Is Important

Analysis of the problem of wrongful conviction is important for four key reasons:

(1) public safety, (2) public confidence in the criminal justice system, (3) individual justice,

and (4) an analysis of dysfunctions of the criminal justice system.

Public Safety

When a wrongfully accused individual is convicted of a crime, that person is

punished in place of the person who actually committed the offense. Therefore, for every

suspect wrongfully convicted, there is a corresponding guilty individual who has not been

brought to justice and who may be continuing to commit crimes in the community (see

Justice Thurgood Marshall’s dissent in Manson v. Brathwaite 1977). Radelet, Bedau, and

Putnam (1992) give details concerning the case of Melvin Reynolds, a 25 year-old mentally

retarded man who was wrongfully convicted of murdering a four-year-old boy and spent four

years in prison before the actual killer confessed to the crime. Radelet, et al report:

Melvin Reynolds had shown symptoms of mild mental

retardation. Despite that, he was aware that his conviction

left a problem hardly anyone else seemed to notice. “What

really bothers me”, Reynolds stated, “is that whoever did it,

they’re still out on the streets, laughing about it.” Not bad

for an I.Q. of 75 (1992: 13).

Public Confidence System In The Criminal Justice

Every year stories reach the media concerning individuals who have languished for

years in prison, or who have been executed, and are later found to be wrongfully convicted.

Stories of this nature can shake the faith of criminal justice professionals and the citizenry

alike in the ability of the criminal justice system to identify criminals and achieve justice.


Wrongful convictions, therefore, can damage the symbolic status of the criminal justice

process – a process that symbolizes America’s moral stance against crime and the desire to

achieve justice.

The symbolic importance of the criminal justice process to a free society cannot be

understated. When an individual is wrongly convicted, and then later that conviction is

overturned, a poor image reflects upon and tarnishes the image of the criminal justice

process. This damage ultimately places a burden on the integrity, prestige, reputation,

credibility, and effectiveness of the entire criminal justice process. Arnold et al. (1965)

discuss the importance of maintaining the integrity of our judicial institutions; they argue that

the moral level at which the nation’s judicial institutions function is the core element that

separates civilized from uncivilized countries:

The center of ideals of every Western government is in its

judicial system. Here are the symbols of all of those great

principles which give dignity to the individual, which gives

independence to the businessman, and which not only make

the State a great righteous protector, but at the same time

keeps it in its place…. It is in this institution that we find

concentrated to a greater extent than any other, the symbols

of moral and rational government. (1965: 123)

In a 1996 message to the U.S. Department of Justice, Office of Justice Programs, U.S.

Attorney General Janet Reno stated, “our system of criminal justice is best described as a

search for the truth” (see Conners, Lundregan, Miller, and McEwen 1996). If that search for

the truth becomes perceived as flawed, the public may begin to lose confidence in the

criminal justice process. When public confidence regarding the fairness and competency of

the system is lost – the ramifications can be serious. In civil matters, once a system appears

to have ceased being a credible forum for dispute settlement, citizens may either fail to


pursue their grievances, or worse, seeing no other alternative, begin to take the law into their

own hands. In a criminal venue, once a system appears to be incapable of separating the

innocent from the guilty, citizens may lose faith in their police officers, prosecutors, and

judge’s ability to do justice. In a benign political atmosphere it is possible that the system’s

inability to separate the innocent from the guilty may be looked upon by most citizens as an

unavoidable cost of the “war-on-crime.” However, in a politically charged atmosphere of

racial unrest, affected groups could look upon such systemic failures with suspicion. The

political and social ramifications of discriminatory behavior in the United States were

demonstrated in the civil unrest of the 1960’s – and that scenario need not be relived.

Individual Justice

In 1923, United States Supreme Court Judge Learned Hand wrote, “Our procedure

has always been haunted by the ghost of the innocent man convicted. It is an unreal dream”

(U.S. v. Garsson 1923). Since that statement by Judge Hand, it is likely that thousands, even

tens of thousands of innocent individuals have personally lived that “unreal dream”. In the

case of the innocent convicted, the experience is not a dream but a very real nightmare.

When an innocent person is wrongly convicted several injustices occur: First, the

wrongly convicted individual is unjustly suffering. (S)he is often subjected to the horrors of

prison life, is denied freedom (often for several years), and possibly faces execution. “All

wrongfully convicted individuals take the lash of punishment for someone else’s crime; that

is the very definition of their predicament. Far too often, they are surrogates for serial

criminals and killers” (Scheck 2000, 244).


Second, the family of the wrongfully convicted individual also unjustly suffers (e.g.

wife without husband, children without father, mother and father without son, brothers,

sisters, in-laws.) Take for example the case of 18-year-old Todd Neeley, who was

wrongfully convicted of attempted murder and sentenced to fifteen years in prison. For four

years his parents “devoted their time, energy, and financial resources to proving Neeley’s

innocence …… Neeley’s wrongful conviction cost his parents nearly $300,000 in legal

expenses and untold emotional trauma and personal anguish” (Huff et al. 1996: 149). The

efforts of Neeley’s parents finally paid off. Four years after his wrongful conviction, all

charges against Neeley were dropped – primarily because an appellate court determined that

key exculpatory evidence had been withheld from the defense attorney.

Third, other participants in the criminal justice process suffer. For example, jury

members, prosecutors, and judges are faced with the fact that their actions were instrumental

in sending an innocent person to prison, or worse, to death row. Also, imagine the feelings

of a rape victim who later discovers that a person she wrongfully identified as the rapist had

spent many years in prison because of her testimony, and that the actual perpetrator of the

crime is still at large and has gone unpunished. College student Jennifer Thompson wrongly

identified Ronald Cotton as the individual who forced his way into her apartment and raped

her. DNA evidence eventually exonerated Cotton. When informed by police that Cotton

was going to be released, Ms. Thompson stated,

I felt like someone had punched me in the gut. All the air

rushed out of my body. I cried for days. It was a hollow,

empty feeling . . . . We took away years of his life. His bars

were made of metal. My bars are emotional. I met alone with

Cotton and his wife. I didn’t even want my husband to be with

me. I cried, I felt naked. And Ronald said, ‘I am not angry

with you, I forgive you.’ It was a remarkable gift. It’s weird, I

hated him so much I wanted to watch him die. And now I care


a lot about him. He taught me grace and forgiveness” (Scheck

et al. 2000: 234).

Analysis Of Dysfunctions Of The Criminal Justice System

Research on wrongful conviction is important because it is fundamental that those

who can fix the problem are made aware that there is a problem. The expert’s ability to

better establish justice and improve the fairness of the criminal justice system is enhanced by

analysis of the phenomenon of wrongful conviction in order to determine causes and

methods for prevention. As tragic as the consequences of wrongful conviction are to

innocent victims – a redeeming result of these tragedies is that they allow researchers the

opportunity to study system dysfunctions. Each wrongful conviction uncovered can be

considered the basis for a “natural experiment.” Babbie explains:

We typically think of experiments as being conducted in

laboratories….That need not be the case, however….Social

scientists often study what are called natural experiments:

experiments that occur in the regular course of social

events. Sometimes nature designs and executes

experiments that we are able to observe and analyze;

sometimes social and political decision-makers serve this

natural function (1992: 237).

By analyzing each case of wrongful conviction, something may be learned regarding

where the criminal justice system has broken down. For example, analysis of a wrongful

conviction may reveal flawed procedures used in the handling of eyewitness testimony;

evidence of police or prosecutorial overzealousness or even corruption may be exposed;

faulty forensic analysis or inadequacy of counsel can be uncovered. This knowledge, if used

as a basis for correcting errors, should ultimately reduce the incidences of wrongful

conviction and improve our system of justice.



The study of wrongful conviction is important because it impacts issues concerning

public confidence in the criminal justice system, individual justice, public safety, and

analysis of error. While researchers of the criminal justice process have given a great deal of

attention to those individuals rightfully convicted, there has been a relative paucity of

research that concerns the wrongfully convicted. The behavior of those individuals rightfully

convicted of crime has been analyzed and reanalyzed in criminological studies. No similar

attention is given to the wrongfully convicted; the research community has largely ignored

the malfunctions of the system that lead to wrongful conviction. Since the phenomenon of

wrongful conviction is rarely studied, much less understood, few policies or procedures are

in place to minimize its effects on affected individuals and society as a whole.

Systemic flaws in the U.S. criminal justice process have, over the years, led to the

wrongful conviction of thousands of individuals. At a minimum, wrongful convictions

typically result in a suspect’s financial ruin and loss of reputation. More often, wrongful

conviction leads to the incarceration of an individual in one of the nation’s jails or prisons.

In the worst-case scenario, wrongful conviction leads to death of an individual by lethal

injection, electrocution, or in the gas chamber. Those who are wrongfully convicted come

from all types of social, ethnic and economic backgrounds. However, as is the case in every

other aspect of punishment in the criminal justice process, wrongful conviction weighs most

heavily on the young, the poor, and minorities (Currie: 1998 Gordon: 1991; Huff, Rattner,

and Sagarin: 1996; Reiman: 2001; Yant: 1991). Regardless of the background of wrongfully

convicted individuals, each shares the unpleasant experience of being unwillingly and


unfortunately caught up in the machinery of a criminal justice system that often operates

through established rituals that tend to preserve bureaucratic interests at the expense of truthfinding.

In order to implement a process that is better at identifying the wrongfully accused,

those people involved in the criminal justice system (police, prosecutor, defense attorney,

judge, jury) must be made aware of the various factors that contribute to the incidence of

wrongful conviction, and they must be encouraged to consider these factors in the decision

making process. A true implementation of this method would require basic changes in the

way suspects are viewed and processed by police, prosecutors, and defense attorneys. It will

also require that the ‘presumption of guilt’ that is currently (and unconstitutionally) the mindset

of many participants in the criminal justice process (Klockars 1980; McCloskey 1989), be

replaced with the constitutionally mandated ‘presumption of innocence’ to which every

criminal suspect is entitled. In sum, including consideration of the factors associated with

wrongful conviction into the decision making process will require increased professionalism

on the part of all actors in the criminal justice system.

Wrongful conviction can probably never be totally eradicated. The inherent fallacies

of human organizations will always make them subject to mistake. However, mistakes can

be reduced through improved systems based on sound knowledge and research. This

dissertation is written with the hope that those involved in the administration of criminal

justice decision making process will become better informed concerning the problem of

wrongful conviction. After reviewing the information contained in this dissertation the reader

should have a better understanding of why and how wrongful convictions occur. It is hoped

that this information will be taken into account during the decision-making process and


policies and procedures that will be implemented that will reduce the incidence of wrongful

conviction. If one wrongfully convicted individual is spared the horror of sitting in prison for

a crime he or she did not commit – this exercise will have been well worth the effort.

Previous research has isolated many factors, both non-systemic and systemic to the

criminal justice system, associated with the phenomenon of wrongful conviction. Chapter

two provides an overview of these factors. Chapters three through eleven define each factor

– eyewitness testimony, police and prosecutorial misconduct or error, inadequacy of counsel,

false expert testimony and the use of faulty forensic science, false accusations and

confessions, and community pressure for convictions – and discusses the extent of each

problem and its ramifications.




In order to determine which factors are associated with wrongful conviction, one first

must identify a wrongfully convicted individual. Identification can be accomplished in several

ways; for example, the true offender admits to the crime, a supposed murder victim turns up

alive, DNA or other exculpatory evidence becomes acknowledged, or a lying witness confesses.

Once a victim of wrongful conviction is identified, the case can then be examined from arrest to

conviction in order to determine what went wrong. This formula has been utilized by numerous

researchers to determine what factors associated are with wrongful conviction of the innocent.

Some previous research investigated information garnered from court records, legal documents,

or news-reports that chronicle all types of crimes (usually felonies) where wrongful convictions

occurred (Bedau and Radelet 1987; Block 1953; Borchard 1932; Frank and Frank 1957; Garner

1953; Huff, Rattner and Sagarin 1986; Huff, Rattner and Sagarin 1996; McCloskey 1989;

Radelet, Bedau, and Putnam 1992; Radin 1964; Rattner 1983; Yant 1991). Other research

investigated only capital (or potentially capital) cases (Bedau and Radelet 1987), or explored

only recent DNA exonerations (Conners, Lundregan, Miller, and McEwan 1996; Scheck,

Neufeld, and Dwyer 2000). Still other research was based on survey research, or reviews of

existing literature (Rattner 1983).

Research efforts have produced a list of factors determined to be associated with the

phenomenon of wrongful conviction. The major contributing factors are: mistaken eyewitness

testimony, false accusations, police misconduct and error, prosecutorial misconduct and error,

inadequacy of counsel, faulty expert testimony, false confessions, and community pressure for a


conviction. ‘Other’ important, but less empirically researched factors are: presumption of guilt,

existence of a prior criminal record, judicial error, mentally incompetency of the accused,

racism, and simple mistake. All of these factors are defined and briefly discussed in this section.

Also included in this section is a brief discussion of ‘why’ these same factors are consistently

found to be associated with proven cases of wrongful conviction..

Research data suggest that, in most cases of wrongful conviction, more than one factor is

likely to have influenced the case. In other words, wrongful convictions are most likely to occur

when the criminal justice system breaks down in more than one way (Huff et al. 1986). Huff et

al. (1996: 65) note “interaction effects are so important that isolating any one factor misses the

point.” Due to the fact that several factors may simultaneously be at work in cases of wrongful

conviction, listing cases by “types of error” can be misleading and present an oversimplification

of the dynamics of wrongful conviction; caution is therefore advised when considering the

independent impact of the individual factors found in each case.

Eight major factors associated with wrongful conviction of the innocent are listed in this

chapter. Sheck, Neufeld, and Dwyer (2000), in their study of 62 cases of wrongful conviction,

collected and analyzed some of the most current data relating to these factors. Their findings are

particularly reliable because data is based on findings harvested from cases of more recent

exonerations – where innocence was proven through the use of modern DNA technology. For

this reason, the factors in this chapter are listed in the order of prevalence determined by Sheck et

al. (2000). It should be noted that their study tended to confirm, rather than dispute, the findings

of most previous research related to the topic of wrongful conviction.


Eyewitness Error

Eyewitness error, in the context of wrongful conviction, refers to the mistaken

identification of an innocent criminal suspect by a victim or eyewitness to a crime. A large body

of research attests to the fact that human memory is inherently flawed – especially when

recollections are evoked from a crime-scene setting where an extraordinary experience may

impede a witness’s powers of perception (Devenport, Penrod and Cutler 1998; Loftus 1979;

Wells 1984; Wells, Small, Penrod, Malpass, Fulero, and Brimacombe 1998). Mistaken

identification is particularly harmful to an innocent suspect because judges and jurors tend to

believe the veracity of an eyewitness’s claims over an accused’s claims of innocence (Borchard

1932; McCloskey 1989). Without exception, every researcher who has seriously studied

wrongful conviction identified eyewitness error as the most prevalent factor associated with the

phenomenon (see Brandon and Davies 1973; Frank and Frank 1957; Huff and Rattner 1988;

Radelet and Bedau 1992; Yant 1991).

Faulty or Fraudulent Science and “Inexpert” Testimony

‘Faulty science’ refers to erroneous and indicting scientific evidence that is

unintentionally offered against an innocent suspect to a crime. ‘Fraudulent science’ refers to

erroneous and indicting scientific evidence that is intentionally offered against an innocent

suspect to a crime. ‘Inexpert testimony’ refers to the testimony of incompetent forensic ‘experts’

who attest in court to the accuracy of flawed scientific and indicting evidence against an innocent

accused. In the same way that judges and jurors give great weight to eyewitness testimony, they

also give similar weight to the testimony of laboratory scientists who swear in court as to the

accuracy of scientific evidence (e.g. blood, semen, fingerprint, DNA) presented by the


prosecution against an innocent suspect. Often the testimony of a laboratory scientist can mean

the difference between conviction or acquittal to a wrongly accused suspect (McCloskey 1989).

“Faulty and fraudulent science” and “faulty or fraudulent expert testimony” are included as

contributing factors by most other researchers studying wrongful conviction (Bendau and

Radelet 1987; Borchard 1932; Huff et al. 1986; McCloskey 1989; Radelet, Bedau, and Putnam

1992; Yant 1991).

Police Error or Misconduct

Police officers or detectives are often the first members of the criminal justice system to

intervene in a criminal case. Police officers sometimes personally view a criminal act, or may be

close enough to personally hear a gunshot or a scream. More often, police respond to a crime

scene after being notified by a citizen that a crime has taken place. The police, therefore,

become involved in a criminal case at a very critical time – the beginning. The activities of the

police at this juncture, and how well they do their job, may have dramatic implications to an

innocent individual who becomes a suspect. Once police error or misconduct contributes to a

wrongful arrest, there is an increased likelihood that other criminal justice officials will add

momentum to the mistake (Huff et al. 1986). Research confirms that police misconduct and

error are major contributors to the wrongful conviction of the innocent (Huff et al. 1986; Huff et

al. 1996; McCloskey 1989; Radelet, Bedau, and Putnam 1992; Yant 1991).

Police ‘error’ refers to situations where the police make honest mistakes that may lead to

the wrongful arrest of an innocent suspect. Such errors may include mistakenly arresting the

wrong person, misreading a search-warrant, or making an unintentional misapplication of the

law. Errors can occur when there is inadequate police training, or when inept investigations are


conducted. Police ‘misconduct’ involves intentional actions by police officers and detectives

that are designed to increase the odds that a suspect will be arrested and convicted. Such

misconduct may include: not giving a Miranda warning, fabricating or planting evidence,

suppressing exculpatory evidence, coaching witnesses at lineups and photospreads, or coercing a

confession. All of these types of activities increase the probability that innocent individuals will

be arrested and convicted of crimes they did not commit (Huff et al. 1996).

Prosecutorial Misconduct or Error

Prosecutorial misconduct is another major problem associated with wrongful conviction

(see Buckley v. Fitzsimmons 1993). The prosecutor may be the most powerful individual within

the criminal justice process (Gershman 1999). Prosecutors have wide discretion regarding which

cases to prosecute and which cases to dismiss. They also enjoy almost an absolute immunity of

liability. Due to their position within the criminal justice process, a prosecutor’s errors or

misconduct can result in devastating consequences to an innocent suspect (Huff et al. 1996).

Prosecutorial ‘error’ refers to those actions in which a prosecutor makes an honest

mistake that may lead to the wrongful prosecution and conviction of an innocent suspect.

Prosecutorial errors may occur when prosecutors unknowingly use false or erroneous witness

testimony, false or erroneous forensic evidence, or false confessions. Prosecutorial ‘misconduct’

may include activities in which a prosecutor, in order to gain a conviction, intentionally

withholds exculpatory evidence, fabricates evidence, coerces witnesses, knowingly uses false

testimony, or applies undue plea-bargaining pressure that may force a suspect to plead guilt to

crime he did not commit (Scheck et al. 2000). Radin (1964) notes that the willful abuse of power

by prosecutors occurs much more often than it should, and that such abuse can result from the


attitudes of prosecutors who view a trial as a kind of game, and who are so busy trying to

outsmart and outmaneuver an opponent that they forget that justice is the sole purpose of a

criminal trial.

Inadequacy of Counsel

Inadequacy of counsel refers to instances where innocent individuals are wrongfully

convicted of a crime they did not commit because, in part, their defense lawyer was incompetent,

lazy, or ill-prepared. Huff and Rattner (1988) list “inadequacy of counsel’ as an important factor

in wrongful conviction. They note that in many of the cases they studied, original defense

counsel, due to inexperience, inadequate investigative resources, or other factors, did not

adequately represent the interests of the suspect. Yant (1991) suggests that some defense

attorneys – without fully investigating their client’s claims of innocence – too often use pleabargaining

as a standard operating procedure to reduce their workload. He also criticizes

defense lawyers for seldom taking the time to properly challenge forensic evidence offered by

the prosecution.

False Accusation

False accusations are intentional lies made against an innocent suspect who is wrongfully

charged with a crime. Unless the false accuser’s lies are exposed, judges and jurors will often

give great weight to their testimony, and will convict an innocent person based on this testimony.

False accusations can originate from an individual who actually committed the crime – in order

to cover-up their own involvement in the incident. False accusations can also come from

vengeful spouses, business partners, or acquaintances – anyone who thinks they can profit, either


emotionally or financially, by seeing an innocent person convicted of a crime. Perhaps the most

troubling false accusations come from inmates who are locked in jail with an innocent suspect

who is awaiting trial. In order to gain the favor of police and prosecutors, these inmates will

concoct stories of a “jailhouse confession” that was made by the innocent suspect – and testify in

court to the authenticity of their claim (McCloskey 1989). Finally, false accusations have even

occurred when no crime ever took place. For example, false accusations of rape against an

innocent person have occurred so the feigning ‘victim’ could cover up an unwanted pregnancy;

other false accusations have simply resulted from the mental illness of an accuser (Huff et al.


False Confessions

A false confession is an untruthful statement made by an innocent individual who admits

to committing a crime. Huff, Rattner, and Sagarin (1986) note that false confessions are one of

the least publicized dynamics of wrongful conviction:

For most people, this may be the most puzzling of all such cases;

after all, why would a perfectly innocent person plead guilty?

Typically, the innocent defendant protests his innocence to

counsel; because many guilty defendants also claim innocence,

counsel may regard such claims with cynicism…….Innocent

defendants are more likely to accept a plea bargain when they face

a number of charges, and the probable severity of punishment is

great. For this reason we are particularly concerned about the

possible effect of resuming executions in the United States. With

so much to lose, who among us would not plead guilty if he

thought that by doing so, he could save his own life, and perhaps,

eventually go free when the error is discovered? (1986: 529)


Community Pressure

Some types of crimes so outrage the members of a community that pressure will be put

on law-enforcement individuals to ‘solve-the-crime’ – and quickly. These types of cases can be

exceptionally perilous to an innocent suspect of the crime. Due to pressure to solve the case,

criminal justice officials, in order to satisfy the community, may be forced into a rush-tojudgment

and arrest the first suspect – often an innocent person. This suspect then may receive

the total attention of law-enforcement authorities, and other leads that might be followed are

sometimes disregarded. Huff and Rattner describe community pressure for conviction as a time

“when hatred replaces reason and due process” (1988: 158). Every major analysis of the

phenomenon lists community pressure as a significant factor in the incidence of wrongful

conviction (Bedau and Radelet 1988; Borchard 1932; Brandon and Davies 1973: Frank and

Frank 1957; Gross, 1996; Huff et al. 1996; Huff and Rattner 1988; Humes 1999; McCloskey

1989; MacNamara 1969; Radelet, Bedau, and Putnam 1994; Radin 1964.

“Why” Do Certain Systemic Dysfunctions Associated with Wrongful Conviction Reoccur ?

In some ways it is relatively easy to itemize what factors are associated with the

phenomenon of wrongful conviction; more difficult to ascertain is the why question – why do

certain systemic processes seem to reoccur in cases of wrongful conviction, even though it is

known that such processes can lead to miscarriages of justice? For example, for many years it

has been known by those in the criminal justice system that eyewitness testimony is very

susceptible to error (Loftus 1979), and that the system is increasingly prone to error when there

is only a single eyewitness to a crime and no other corroborating physical evidence (Radin 1964;

Wells et al. 1998). Yet, such specious eyewitness testimony often continues to be improperly


utilized, relied upon, and even protected by police, prosecutors and judges – often to the peril of

an innocent suspect (Scheck 2000). To date, a comprehensive study of the “why” question has

not been published. There are, however, bits and pieces of the puzzle that can be examined.

Concepts of “noble cause” and “the Dirty Harry problem” have been tendered as partial

explanations of why criminal justice personnel sometimes take actions that appear to contradict

the law and professional ethical standards – actions that can lead to wrongful conviction.

Noble Cause Corruption

One reason “due process” rights are guaranteed U.S. citizens is to protect them from a

wrongful conviction. The rights of an innocent person, accused of a crime, are maximized when

the law is followed at each step of the criminal process. Often, in cases of wrongful conviction,

a criminal justice official has, somewhere along the way, stepped outside the law. Delattre

(1996) offers a plausible explanation as to why someone would act outside the law in his

discussion of the concept of “noble-cause.” He suggests that a person’s actions ultimately result

from perceptions of self-worth and one’s desire to gain the respect of significant others. These

perceptions and desires, according to Delattre (1996), are based on whether the causes which one

identifies oneself with are admirable or despicable. Crank and Caldero (2000) suggest that this

commitment to a noble-cause – the desire to be viewed by oneself and by others as living a noble

life – can lead some criminal justice officials to bend, or in some cases, disregard the law when

they believe that the process stands in the way of achieving a perceived noble goal. They define

this phenomenon as ‘noble-cause corruption’, and note:

Noble-cause corruption is committed in the name of good ends,

corruption that happens when police care too much about their

work. It is corruption committed in order to get the bad guys off

the streets, to protect the innocent and the children from the


predators that inflict pain and suffering on them. It is the

corruption of police power, when officers do bad things because

they believe the outcomes will be good (2000: 2).

When police officers – or any other criminal justice official – “do bad things” (neglect

their swore duty to uphold the law), in order to get-the-bad-guy-off-the-street, they are

circumventing the constitutional and legal process designed to apprehend the guilty and protect

the innocent, and replacing that process with a their own private system of justice based on their

personal view of what is morally good. The innocent suspect, stripped of constitutional

protections by an act of private justice, becomes increasingly susceptible to being a victim of a

miscarriage of justice.

The Dirty Harry Problem

A related theory as to why a criminal justice professional might step outside the law is

offered by Klockars (1980). He succinctly describes what he defines as “the Dirty Harry


Policing constantly places its practitioners in situations in which

good ends can be achieved by dirty means. When the ends to be

achieved are urgent and unquestionably good and only a dirty

means will work to achieve them, the policeman faces a genuine

moral dilemma. A genuine moral dilemma is a situation from

which one cannot emerge innocent no matter what one does –

employ a dirty means, employ an insufficiently dirty means, or

walk away. In such situations in policing, Dirty Harry problems,

the danger lies in not becoming guilty of wrong – that is inevitable

– but in thinking one has found the way to escape the dilemma

which is inescapable (1980: 33).

The concept of the Dirty Harry problem further complicates the plight of the innocent accused.

While the ‘noble-cause’ syndrome suggests that some criminal justice officials may be

influenced to “possibly” bend or break the law, the Dirty Harry problem suggests that officials,


in certain situations, are “forced” to choose between one of two ‘un-noble causes’; they must

either ‘let-the-bad-guy-stay-on-the-street’ because they have no legitimate legal means available

to remove him, or they must disregard the law they are sworn to uphold and make a dubious

arrest. This situation is especially dangerous to an innocent suspect. Having done nothing

illegal, he should not need to fear the law or the law-enforcer; on the other hand, he may have

much to fear from a law-enforcer who is working outside the law. There are numerous stories of

wrongful conviction where criminal justice officials used illegal tactics to get-a-bad-guy-off-thestreet,

only to later discover that they had participated in a charade that sent an innocent man to

prison (see Miller v. Pate 1967; Massachusetts v. Cornich 1989; Durham v Oklahoma 1993).

It should be noted that, while Klockars’ focus is on police personnel, the Dirty Harry

problem is by no means confined to just police officers – it seems that it would be applicable to

all criminal justice officials; prosecutors, for example, are not immune from using dirty means

(e.g. withholding exculpatory evidence from the defense attorney) in order to accomplish a

perceived noble goal.

Other Reasons “Why”

By no means do the ‘noble-cause’ syndrome and “the Dirty Harry problem” provide an

exhaustive explanation of why flawed criminal justice practices associated with wrongful

conviction continue to be employed despite their often-unjust consequences. Not all criminal

justice officials who bend the rules are “moral entrepreneurs” (Becker 1963: 147). To the

contrary, sometimes their reasons for taking illegal or unethical actions are self-serving: to gain

an arrest, ‘win’ a case, satisfy the ‘community’, or to otherwise bolster their resume’ and further

their own career goals. Also, flawed procedures may be used due to poor training, or simply

because of the apathy or laziness of criminal justice officials.



The factors most frequently associated with the phenomenon of wrongful conviction

include: eyewitness error, faulty or fraudulent use of scientific evidence, police and prosecutorial

error or misconduct, inadequate representation by defense counsel, false accusations and false

confessions, and community pressure for a conviction. Other contributing factors include :

presumption of guilt, existence of a prior criminal record, judicial error, mentally incompetency

of the accused, and simple mistake. Typically, two or more of these factors are present in a case

of wrongful conviction, and an “interaction effect” between the factors complicates the dynamics

of the process.

Also contributing to the incidence of wrongful convictions are the sometime wellmeaning

and sometime misguided pursuit of a noble-cause by professionals involved in the

criminal justice process. This pursuit may lead officials to abandon approved statutory and

constitutional processes that are intended to protect the innocent from wrongful arrest or

conviction. Biases and prejudices of police officers, prosecutors, defense attorneys, judges, and

jurors may also enter into the decision-making process that leads to wrongful conviction, and

bureaucratic rituals, which tend to preserve bureaucratic interests, may reinforce these attitudes.

Finally, the self-serving career motives of criminal justice personnel may influence decisionmaking

that is harmful to the wrongfully accused individual.

The next several chapters contain a more thorough analysis of the eight most common

factors various associated with the phenomenon wrongful conviction. Each analysis will include

actual stories of individuals who were wrongly convicted due to a particular phenomenon, and a

review of pertinent literature.




The vulgarities of eyewitness identification are well-known;

the annals of criminal law are rife with instances of mistaken


Justice William Brennan in U.S. v. Wade (1967)

Eyewitness error, in the context of wrongful conviction, refers to the mistaken

identification of an innocent criminal suspect by a victim or eyewitness to a crime. Mistaken

identification is particularly harmful to an innocent suspect because judges and jurors tend to

believe the veracity of an eyewitness’s claims over an accused’s claims of innocence (Borchard

1932; McCloskey 1989). Few moments are more dramatic or indicting in a criminal trial than

when a witness points to a defendant and says, “He’s the one!” Every researcher who has

seriously studied wrongful conviction has identified eyewitness error as one of the most

prevalent factors associated with the phenomenon (Bedau and Radelet 1988; Borchard 1932;

Brandon and Davies 1973: Brock 1963; Conners et al. 1996; Frank and Frank 1957; Garner

1952; Gross, 1996; Huff et al. 1996; McCloskey 1989; MacNamara 1969; Radelet, Bedau, and

Putnam 1994; Raden 1964; Rattner 1983; Scheck et al. 2000). What follows are brief

descriptions of three cases in which innocent individuals were found guilty of a crime they did

not commit, due in large part to eyewitness error.

He Was No Doctor - The Case of William Jackson

“They took away part of my life, part of my youth,” William Bernard Jackson told

reporters as he was released after spending five years in prison for two crimes that he did not

commit (Yant 1991; 108). At his trial, a jury found Jackson guilty of committing two rapes in

the Columbus, Ohio area. Except for the positive identification of Jackson by the victims, there


was no other evidence to link him to the crimes. At trial the victim’s testimonies were rebutted

by several of Jackson’s family members and friends who swore that he was with them on the

nights of the crimes. It was the victim’s words against the words of those who knew Jackson

and, as is almost always the case in these instances, the jury chose to believe the victims.

After five years in prison, William Jackson got lucky. The Columbus police arrested

another man – Edward F. Jackson – who was caught inside a house wearing a ski mask and

carrying a wide array of burglary tools. What was particularly unusual about this arrest was that

Edward F. Jackson was discovered to be Dr. Edward F. Jackson, perhaps the city’s most

prominent black internist. When Dr. Jackson’s Mercedes-Benz was searched police found a long

list of rape victims in his handwriting. The list included the names of several women who were

classified as being the victims of the elusive and long sought after “Grandview rapist” who had

been terrorizing women in the suburb of Grandview Heights with seeming impunity for several

years. The improbable fact that the rapist was a doctor began to make sense as investigators

began reviewing the files and discovered that many of the rape victims had said that their

assailant had worn rubber gloves and took their pulse after the assault. Fortunately for William

Jackson, who was sitting in prison, Dr. Edward Jackson’s list of rape victims included the names

of the two women that William Jackson had been found guilty of raping.

To the credit of the Columbus police they acted quickly. Only seven hours after Dr.

Jackson was indicted on ninety-four counts, including forty-six burglaries and thirty-six rapes,

the “wrong” Jackson was released from prison. When the photos of the two Jacksons were

compared it was obvious that there was a striking resemblance. Both were black, tall, thin, had

similar hairstyles, scraggly beards, and mustaches. The prosecutor later admitted, “eyewitness

identification is unreliable. But that’s what the jury is there for. They have to decide if its


reliable or not” (Yant 1991, 107). It should be noted that the prosecutor did not publicly state

that eyewitness identification is unreliable until after the conviction.

William Jackson’s case illustrates the type of serious situation an innocent defendant

faces when a crime-victim points and identifies him as the perpetrator. The moment in which an

eyewitness to a crime identifies a suspect is a significant juncture in the possible prosecution of

that person. Once a sympathetic witness identifies a suspect, investigation of other suspects may

end for all intents and purposes. U.S. Supreme Court Justice William Brennan, wrote, “The trial

which might determine the accused’s fate may well not be in the courtroom, but in the initial

pretrial confrontation” (U.S. v. Wade 1967: 1162). In most cases, especially rape cases, great

weight is placed on eyewitness identification (Huff et al 1996). Further complicating the issues

surrounding Jackson’s conviction were racial factors. He was a black man identified by white

victims – an indication of the special difficulties that occur during interracial identifications

(Huff et al. 1996; Malpass and Kravitz 1969); some of these difficulties are discussed in a

section later in this chapter.

Walking in Another Man’s Shoes – The Case of Jeffery Streeter

Accounts of eyewitness error are plentiful, and sometimes bizarre. In one incredible

case, due to eyewitness error, a man was convicted of committing a crime without ever being

arrested. The man, Jeffrey Streeter, was sitting outside a courtroom waiting for a friend when he

was approached by a defense attorney and asked if he would help test the credibility of an

eyewitness that was testifying in a case. Streeter agreed to help. Without informing the judge,

the defense attorney had Streeter sit next to him at the defense table while the real defendant sat

behind them in the seats used by courtroom observers. Despite the fact that the actual defendant

was in the courtroom when they testified, three eyewitnesses proceeded to unflinchingly point to


the shocked Streeter as the criminal who had assaulted an elderly man. Streeter was convicted

and sentenced to one year in jail. Streeter actually only spent one night in jail and was

subsequently released on his own recognizance. Ultimately his conviction was overturned

(Court Stand-in Is Convicted,” 1980).

Huff et al. report a similar scenario:

Robert Duncan, president of the Missouri Association of

Criminal Defense Lawyers, was representing a Mexican-

American defendant who had been arrested after being

identified by a woman who was raped by an “Italian-looking

man.” When a second suspect was brought in she identified

him, too, as the guilty offender. She reportedly told

authorities, I’m getting tired of coming down her to identify

this man.” According to the defense attorney, “The second

guy didn’t look anything at all like my client” (1996: 70).

These cases illustrates both the unreliability of eyewitness testimony and the type of systemic

momentum that must be overcome by innocent suspects after they have been charged with a

crime and their cases mature through the criminal justice system.


In 1908 Hugo Munsterberg argued that scientific evidence demonstrated eyewitness

testimony was just as likely to be wrong as right. Munsterberg premised his contention on an

experiment conducted by Berlin university teacher Professor von Liszt. During a lecture before

a large class, von Liszt, unbeknownst to the rest of the class, had two students stand up and stage

a heated argument over religion; one of the students pulled a gun on the other; they struggled

over the gun, a loud blast ensued, but it appeared that no one was hit. The two combatants then

backed-off. The other stunned and shaken students were then informed that the event had been

staged, and they were then asked to write a detailed account of what they had just observed.


Munsterberg wrote,

Words were put into the mouths of men who had been

silent spectators during the whole short episode; actions

were attributed to the chief participants of which not the

slightest trace existed; and essential parts of the tragiccomedy

were completely eliminated from the memory

of a number of witnesses (1908, 67).

Almost 100 years after von Liszt’s experiment, human nature has not changed. Since

Munsterberg wrote on this topic, a sizeable body of research on eyewitness behavior has

accumulated which has repeatedly proven the limitations of human memory. Usually imperfect

recall only has minor consequences – an embarrassing moment at a social gathering, a forgotten

appointment, or a lower test grade for a student. However, in the case of a criminal suspect who

becomes the victim of the imperfect recall of an eyewitness to a crime, the consequences can be

Join now!

extremely serious – even life-threatening.

Eyewitness testimony in criminal trials can be, to put it simply, unreliable. As Buckhout


Research and courtroom experience provide ample

evidence that an eyewitness to a crime is being asked to be

something and do something that a normal human being

was not created to be or do. Human perception is sloppy

and uneven, albeit remarkably effective in serving our need

to create structure out of experience. In an investigation or

in court, however, a witness is often asked to play the role

of a kind of tape recorder on whose tape the events ...

This is a preview of the whole essay