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It’s Not Just the Eyewitnesses Who Screw Up


As you – loyal readers – now know (because I write about it ad nauseum), the criminal justice system’s reliance on eyewitness testimony has led to many many (many) false convictions.

But a new study shows that the problem is not the eyewitness’s misremembering. It’s the prosecutors who pushed them to misremember…or flat out lie. In yesterday’s NYT, the author of this study (a professor at Mount Holyoke), which surveyed the exonerations of 124 death row inmates over almost 35 years (1973-2007) found that in the vast majority of wrongful convictions, prosecutorial misconduct was the root cause. And we’re not talking good faith mistakes here. We’re talking, what the study’s author has called “intentional, willful, malicious prosecutions by criminal justice personnel.” Such maliciousness was inextricably tied to conviction in 80 of the 124 cases.

It’s hard to know what conclusions to draw from this (who are these prosecutors, why do they put people they know are innocent on death row and how do they sleep at night?)and how we might prevent further abuse. The op-ed doesn’t conjecture much, but does make one suggestion that I found both instructive and important (again given my concern that DNA evidence is seen as the silver bullet):

The malicious or even well-intentioned manipulation of murder cases by prosecutors and the police underscores why it’s important to discard, once and for all, the nonsense that so-called wrongful convictions can be eliminated by introducing better forensic science into the courtroom.

Even if we limit death sentences to cases in which there is “conclusive scientific evidence” of guilt, as Mitt Romney, the presidential candidate and former governor of Massachusetts has proposed, we will still not eliminate the problem of wrongful convictions. The best trained and most honest forensic scientists can only examine the evidence presented to them; they cannot be expected to determine if that evidence has been planted, switched or withheld from the defense.

Exactly. But what to do about it? The authors don’t seem to have a solution (at least, not one they offer in the Times op-ed) and I’m not sure what one might look like. Ending the death penalty would be a band-aid (a very important one) but it wouldn’t stop this conduct on the part of prosecutors.*

*(Yes, I know not all prosecutors are bad, but this study does suggest that there is a real problem of prosecutorial misconduct and that it’s resulting in the jailing and perhaps execution of innocent people).

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