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October 30, 2008

Notable "death is different" response to wrongful convictions

I just discovered via SSRN this notable article by Professor Rory Little titled "Addressing the Evidentiary Sources of Wrongful Convictions: Categorical Exclusion of Evidence in Capital Statutes." Here is the abstract:

After two decades of powerful "wrongful conviction" cases stimulated by new DNA science, we can now categorize the sources of error across dozens if not hundreds of exonerations. (The author, a former prosecutor, is neither a death penalty abolitionist nor a disbeliever of convictions - many convictions are "very right indeed" (n.2). Nevertheless, at least four of the known sources of wrongful conviction fall into categories we can define and, perhaps, do something about: (1) eyewitness misidentifications; (2) false confessions; (3) "jailhouse snitches" (or more broadly, criminal informants); and (4) "junk" (i.e., unvalidated) science. Yet we do not simply ban these categories of evidence from criminal cases. Instead, we propose only procedural screens, which if successfully navigated, still allow some instances of the questioned types of evidence to be admitted. But in cases with wrenching facts, emotion may overwhelm "screens" such as jury instructions or expert testimony designed to narrow the jury's consideration of questionable evidence.

In an effort to stimulate meaningful remedial thinking, this essay proposes instead a "categorical" exclusion solution for capital cases. (The essay quickly sidesteps the more difficult question: why limit the categorical exclusion to just capital cases?) No capital prosecution may be filed or prosecuted if based primarily on one of the four listed sources of evidence, whether singly or in combination. This statutory proposal would be immediately judicially enforceable and reviewable. A model statute is appended, so that critics (or advocates) can shoot at (or improve) the idea with specifics.

The essay concludes by briefly considering nine objections that might be raised to the proposal. The essay points out that we do "categorically" ban probative evidence in at least two other contexts: the Treason Clause of the Constitution; and polygraph evidence. (Interestingly, Ben Franklin was reported by James Madison to favor the Treason Clause, which blocks the prosecution of treason cases unless the evidence is especially powerful, because the evidence was "too easily made use of against innocence." Thus the concern to guard against prosecution of the "actually innocent" is hardly new.)

The essay also provides (in a footnote, of course) some "forgotten" history about "Actual Innocence" literature in the United States: The debate can be traced back to a 1912 dialogue between the wardens of the American Prison Congress and then-Librarian of Congress Edwin Borchard, which culminated some decades later in Borchard's well-known 1932 book "Convicting the Innocent."

October 30, 2008 at 08:55 AM | Permalink


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Bar testimony of criminals seeking sentence reductions or other prosecutorial quid pro quos (in all cases, but especially capital cases - nobody should be punished, let alone executed, because a snitch wanted 5K1 credit or the state equivalent), and prohibit the use of the "harmless error" doctrine in capital appeals, and I will cease to oppose the death penalty. I do not oppose the death penalty on moral grounds, only grounds of inaccuracy and distrust in current procedure. There's no such thing as harmless error when death is involved. After about a dozen or so appeals and retrials, they'll probably get it right and have an error-free trial which I can support. The notion that "you're not guaranteed a perfect trial, only a fair one" is disingenuous since when death is involved, the only fair trial is a perfect one.

Posted by: BruceM | Oct 30, 2008 2:43:44 PM

One of the interesting elements of a death penalty case is that it generally causes a much wider array of evidence to be admitted, although often only at the death sentence hearing.

It is also the case that death penalty sentences are far less stable on review than other criminal sentences. Something like 99%+ of convictions that survive direct review on appeal will ultimately be affirmed. A very substantial proportion of death sentences are commuted or result in reversals of the conviction.

The two circumstances are not unrelated. Mental health conditions that rarely are sufficient to exculpate someone from criminal responsibility, are often sufficient to disqualify someone from the death penalty, which is basically crafted to be limited to sociopaths and psychopaths, although the line isn't always strictly followed.

Posted by: ohwilleke | Oct 30, 2008 10:50:27 PM

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