The academic peer reviewed article “Than let one innocent suffer” written by Robert J. Norris in the Albany Law School Law Review evaluates state safeguards and reformative measures from around the country that help combat wrongful convictions. There were four main sectors that were focused on in this compilation of reform -- eyewitness identification, forensic science oversight, interrogation and false confessions, and criminal informants -- and so I will structure this assessment slightly differently in order to clearly evaluate the suggestions and possible measures that can be taken for each of the four sects. It is important to note that Norris’ evaluation of these measures occurred between 2009 and 2011 and since that point change has happened across the nation so I will continue to search for updated statistics that can be used with the same points and suggestions Norris made in my Original Work website project. I feel that this article was extremely beneficial to my research and to my work in this class because it provides clear cut examples of factors of wrongful conviction and why they are issues, suggestions for how these can be solved with reform, and examples of how different states have gone about implementing these suggestions into law. Additionally, this lines up well with prior research I had done on both reformative suggestions and the five factors that I identified as important as well (police and prosecutorial misconduct is factored into each section).
Eyewitness Identification
Eyewitness identification or better named misidentification has been established as the leading cause of wrongful convictions. This is not surprising because of the weight that is placed on eyewitness testimony in court and the significance it has in so many cases across the board. However, studies have repeatedly shown that eyewitnesses may not have complete confidence or a completely clear perception of who they are identifying. This inherently leads to relative judgment in a traditional lineup identification system where the witness simply chooses the suspect that most closely matches the description, whether or not it is a completely accurate match. This is not something that is often done knowingly and a witness may convince themself that their identification is correct and clear when it may not truly be. Norris and his team identify 6 possible measures that can be taken to improve the accuracy and certainty of eyewitness identification. Firstly, blind or double blind procedures allow for neither the witness or the administrator to know who the suspects are or who would ideally be identified for the case. This allows for completely unbiased selection by the witness and removes the possibility for suggestion, which has been shown to be involved even on accident, from the administrator of who the suspect would be. The second suggestion is witness instructions. This would be a list of instructions and caveats that are read out to witnesses, in the same way Miranda RIghts are read out to suspects, that would mention the notions that the suspects may not be in the lineup, it is not necessary to make an identification, and proving innocence and saving those from jail is just as important as finding guilt. The Innocence Project and National Institute for Justice have set lines that could be read out and implemented by states. The structure of the actual lineup can be changed to include fillers and other possible people that are not suspects that may match the description to ensure the confidence of witnesses and make it more difficult for a relative judgment to be made. Additionally, witness confidence statements immediately after identification before any court proceedings have occurred is important to getting a written and legally binding notice of the level of confidence they have with their identification. Sequential lineups, a personal focus of mine, are another way of removing the capability of a witness to have an easy relative judgment. This strategy consists of having people come out one by one to be looked at by the witness. This psychologically makes a witness more likely to concede that they do not truly know or are not truly confident and places the weight of the identification process on absolutism where it is simply a yes or no question for each suspect or filler. And finally, videotaping procedures are important to documenting the validity of identification proceedings and are beneficial to both sides. The article goes into different ways states have implemented these suggestions. At the time of the writing there were 10 states who had some form of identification policy. As of now, according to the Eyewitness Project at Duke Law School, 24 states have implemented some form of measures.
Forensic Science Oversight
Forensic science also plays a major role in presenting evidence in court and, according to Norris, “errors in forensic testing can lead to wrongful convictions as inadvertent errors can result from cognitive biases, poor training, lack of education, and simple inattention or sloppiness, to name a few causes.” These lab errors can happen at a surprisingly high rate and are not a particularly easy problem to solve. Norris used research to present the idea that what states can do is implement boards and commissions that certify the quality of their states forensic units by providing accreditation practices, “ ensure adequate funding, investigate misconduct, and compile a registry of independent experts whom the defense could consult." These boards are one step in the direction to review and an additional measure that states should take towards certifying the quality of their programs. These boards, as seen by the current oversight entities in 13 states, are composed of representatives from law enforcement, academia, defense, prosecution, as well as directly from forensics themselves and investigations can be done by these committees into allegations of misconduct or negligence and corrective action can be carried out against these labs.
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Interrogation and False Confessions
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Norris establishes three major driving characteristics that lead to false confessions happening: police interrogations, which are designed to wear down a suspect and do everything possible including lying, yelling, and other psychologically tormenting means in order to force suspects into sharing incriminating evidence or confessions as a means of escape from their current situation; situational characteristics, very similar to the tactics used by police, the length of interrogations can span large amounts of time making it seem reasonable for a suspect to give in and the tactics used can minimize possible punishments and make it seem like confession, whether or not true confession, is the only viable option; and dispositional characteristics such as age, mental disability, or disease that make a suspect more likely to confess. These three things make it very likely for interrogations to lead to wrongful convictions or to be lied about in court to frame suspects actions or minimize the actions taken by police to extract the confession they may have gotten. Norris recommends the recording of interrogation to “lift the veil of secrecy” and provide the jury and court with a clear representation of what happened in the interrogation. Recording interrogations is a simple fix that is beneficial to not specifically a defendant or harmful at all to the functionality of a legal interrogation but instead is mutually beneficial to the truth of a verdict and the evidence/confession that comes from an interrogation. This shows that a case is either rightfully or wrongfully investigated and can easily and without room for hearsay provide evidence for the process. This is a fix that would be relatively easy to pass as it does not harm one side or the other and does not inhibit the ability of the court to reach a true guilty verdict. This could be introduced in specific cases at first if there is pushback or slow movement in policymakers and legislative workers such as juvenile cases or capital cases. As of 2022, 27 states have interrogation or interview recording laws in place.
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Criminal Informants: The Problem of Snitches
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The debate over the validity and complete admissibility of testimony from criminal informants has been rampants in the legal world due to the clear and present incentives that would convey them to lie. With nothing to lose and so much to gain, prisoners are often driven to frame other defendants to benefit themselves and because of their use for prosecutors, they are unlikely to truly look for the validity in their testimony. Norris suggests four measures towards combating this. Firstly, discovery and disclosure refers to the complete disclosure of the process taken to get the information out of the criminal and the rewards or incentives provided. This allows for the defense to refute the validity of the claim and acts as an incentive for the prosecutor to use as little incentivization as possible which in turn increases the quality of the evidence. Similarly, pretrial reliability hearings that determine whether or not this should even be allowed in court. Additionally, corroboration of evidence, with less traction in the legal world, makes it so that this evidence must be backed and confirmed by other similar evidence. And finally and most practically, cautionary jury instructions allow for the jury to be made aware of possible faults in this evidence. All of these measures reduce the impact of snitch testimony and in turn increases the likelihood of correct convictions based on stronger evidence.
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Norris’ findings are crucial to my project as they provide a simplified and concise explanation of the reformative measures and the issues they combat that I can translate and push forward on my website.