Safety from Plea-Bargains’ Hazards

There is a significant risk—in safety terms, a hazard—that the wide gap between the defendant’s anticipated punishment if convicted at trial and the relatively lighter punishment if he confesses in a plea-bargain will lead not only the guilty but also the innocent to confessing. In practice, only 3% of all federal cases go to trial, and only 6% of state cases. In the remainder, conviction is obtained through plea-bargaining. Indeed, plea-bargains are one of the central mechanisms facilitating false convictions. In other fields, the meaning of a “safety-critical system” is well understood, and resources are, therefore, invested in modern safety methods, which reduce significantly the rate of accidents. This is the case, for example, in the aviation field, which abandoned the “Fly-Fix-Fly” approach and developed more advanced safety methods that generally follow an “Identify-Analyze-Control” model and are aimed at “First-Time-Safe.” Under this approach, there is systematic identification of future hazards, analysis of the probability of their occurrence, and a complete neutralization of the risk, or at least its reduction to an acceptable level. A false conviction is a system error and accident just like a plane crash. But in criminal law, a Hidden Accidents Principle governs and almost all the false convictions are never detected. Therefore, not enough thought has been given to the system’s safety. Empiric studies based on the Innocence Project’s findings point to a very high false-conviction rate: at least 5% for the most serious crimes. Regarding convictions based on plea-bargains, the rate is probably significantly higher since the commission of the offense and the guilt of the accused are not proved by significant evidence. This article proposes a theory and some initial tools for incorporating modern safety into the criminal justice system. Specifically, I demonstrate how the innovative “System-Theoretic Accident Model and Processes” (STAMP) safety model can be applied in the criminal justice system, by developing constraints, controls, and barriers against the existing hazards in the context of convictions based on plea-bargains. Additionally, the article suggests an innovative idea, of recognizing defendants’ right to a fair plea-bargain offer. Plea-bargains need not be dependent on the goodwill of a particular prosecutor toward a particular defendant or her defense counsel

Safety from Flawed Forensic Sciences Evidence

This article addresses the way to safety in the context of forensic sciences evidence. After presenting the current lack of safety, which I term “unsafety,” I raise some possible safety measures to contend with this. My suggestions are grounded on two bases: first, the specific analysis of each type of evidence in line with the most recent research on the subject; and second, modern safety theory and its application to the criminal justice system. It is important to stress that my proposals represent only some of the conceivable safety measures. Developing a comprehensive safety theory for the criminal justice system will require considerable additional cross-disciplinary research work, which I recommend be undertaken within the framework of a Safety in the Criminal Justice System Institute (SCJSI). I have chosen, for discussion purposes, to analyze the two central types of forensic sciences evidence currently predominating criminal law: DNA testing and fingerprint comparisons. For each of these, I will review the most up-to-date research on the topic. I will demonstrate why present use of these types of evidence is not error-free and fails to ensure safety from false convictions and then offer different ways of improving safety in these contexts. I will propose a general solution regarding all types of forensic evidence, based on an earlier proposition I developed with Dr. Mordechai Halpert, namely, that the legislature must enact a rule that precludes the admissibility of forensic evidence in court unless it has been developed as a “safety-critical system.” The knowledge and solutions for developing safety-critical devices already exists in other engineering fields, such as medical devices and aviation devices. Thus, all that is needed is the willingness and reasonable resources to carry this out. Later in this article, I will offer some additional general solutions. This article also addresses what is known as “junk science,” which refers to evidence that is presented, inaccurately and misleadingly, as scientific evidence when it has, at best, a flimsy connection to science. Despite studies clearly pointing out this lack of scientific grounding, including the 2009 National Academy of Sciences (NAS) Report, some courts still admit such evidence as scientific evidence. This is proof in itself of just how far the criminal justice system is from being a safe system

Proposal to Reverse the View of a Confession: From Key Evidence Requiring Corroboration to Corroboration for Key Evidence

Both case law and legal literature have recognized that all, and not just clearly statistical, evidence is probabilistic. Therefore, we have much to learn from the laws of probability with regard to the evaluation of evidence in a criminal trial. The present Article focuses on the confession. First, we review legal and psychological literature and show that the probability of a false confession and, consequently, a wrongful conviction, is far from insignificant. In light of this, we warn against the cognitive illusion, stemming from the fallacy of the transposed conditional, which is liable to mislead the trier of fact in evaluating the weight of a confession. This illusion in evaluating the weight of a confession occurs when the trier of fact believes that, if there is only a low probability that an innocent person would falsely confess, then there is also only a low probability of innocence in each and every case where a person does confess guilt. The surprising truth is that even if there is only little doubt regarding the credibility of confessions in general, in some cases, this raises considerable doubt regarding the certainty of a conviction. We demonstrate this through the case of George Allen, who was convicted in 1983 of the rape and murder of Mary Bell. This is an example of a case in which the fallacy reaches extreme proportions, since nothing connected the accused to the crime, apart from his confession. Following this, we turn to a Bayesian calculation of probability for evaluating the weight of a confession. First, we discuss the standard of proof required for a criminal conviction. We show that the optimistic expectation of the U.S. Supreme Court in Kansas v. Marsh regarding the rate of false convictions (0.027%) is inconsistent with Blackstone\u27s famous approach, accepted by many judges, whereby it is better for ten criminals to be acquitted than for one innocent to be convicted (9.09% wrongful convictions). We then demonstrate the untenability of the optimistic estimate that it is possible to convict with a relatively low probability of guilt (approximately 91%) without paying a very heavy price in wrongful convictions. Considering this, we explain why we prefer the ratio proposed by Thomas Starkie, whereby it is better for a hundred criminals to be acquitted than for one innocent to be convicted. The probabilistic calculation that we perform based on this threshold of 1:100 dictates a new and surprising conclusion that calls for a significant reversal in how we view the confession: a confession should only be treated as corroboration of other solid evidence-if it exists-and not as key evidence for a conviction. Furthermore, even if we suffice with Blackstone\u27s familiar threshold of 1:10, the strength of the other evidence against the suspect, apart from the confession, must still be at least a balance of probabilities (51%) in order to achieve proof of guilt beyond a reasonable doubt, the burden required for a conviction. Given the real danger of convicting innocents, we call on law enforcement officials to refrain from interrogating a person, with the aim of extracting a confession, when there is no well-established suspicion against this person, and even when the law allows for such an interrogation. Moreover, we call on legislatures to amend the law so that such an interrogation would not be possible, and to set forth that a confession is insufficient to constitute the sole, or key, evidence for a conviction, but it can be used only as corroboration for other key evidence-if it exists

Safety from Flawed Forensic Sciences Evidence

This article addresses the way to safety in the context of forensic sciences evidence. After presenting the current lack of safety, which I term “unsafety,” I raise some possible safety measures to contend with this. My suggestions are grounded on two bases: first, the specific analysis of each type of evidence in line with the most recent research on the subject; and second, modern safety theory and its application to the criminal justice system. It is important to stress that my proposals represent only some of the conceivable safety measures. Developing a comprehensive safety theory for the criminal justice system will require considerable additional cross-disciplinary research work, which I recommend be undertaken within the framework of a Safety in the Criminal Justice System Institute (SCJSI). I have chosen, for discussion purposes, to analyze the two central types of forensic sciences evidence currently predominating criminal law: DNA testing and fingerprint comparisons. For each of these, I will review the most up-to-date research on the topic. I will demonstrate why present use of these types of evidence is not error-free and fails to ensure safety from false convictions and then offer different ways of improving safety in these contexts. I will propose a general solution regarding all types of forensic evidence, based on an earlier proposition I developed with Dr. Mordechai Halpert, namely, that the legislature must enact a rule that precludes the admissibility of forensic evidence in court unless it has been developed as a “safety-critical system.” The knowledge and solutions for developing safety-critical devices already exists in other engineering fields, such as medical devices and aviation devices. Thus, all that is needed is the willingness and reasonable resources to carry this out. Later in this article, I will offer some additional general solutions. This article also addresses what is known as “junk science,” which refers to evidence that is presented, inaccurately and misleadingly, as scientific evidence when it has, at best, a flimsy connection to science. Despite studies clearly pointing out this lack of scientific grounding, including the 2009 National Academy of Sciences (NAS) Report, some courts still admit such evidence as scientific evidence. This is proof in itself of just how far the criminal justice system is from being a safe system

Safety in Post-Conviction Proceedings, 51 J. Marshall L. Rev. 773 (2018)

It is extremely difficult to correct an error after conviction.Given the Hidden Accidents Principle in criminal law, it is very hard to uncover mistakes and even harder to prove them. Time is one of the greatest enemies of reconstructing the truth. Evidence gets lost, potential witnesses forget, move away, or die. The legal rules, including the finality of verdicts rule, hinder the rectification of miscarriages of justice. Another factor is that once the indictment has been made, the police usually close their investigation. Even when the appellate court finds a defect in the original trial proceedings, it will most likely be deemed “harmless error.” Thus, the finality of proceedings rule in fact already applies with the handing down of the verdict at trial, even before appeal. The main procedural mechanism intended for correcting miscarriages of justice is a motion for a new trial. But this mechanism is not effective. Since safety theory and safety measures are not yet developed in the criminal justice system, we have to learn it from other areas, such as aviation, transportation and engineering. In order to bring SAFETY to post-conviction proceedings, this essay offers some safety measures

From Beccaria to Negation of Incarceration for Non-Violent Property Offenses [Article]

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