Introduction: Symposium on ‘Convicting the Innocent

Examining what went wrong in the first 250 DNA exonerations was a sobering occupation, and I describe what I found in my book Convicting the Innocent, published by Harvard University Press in 2011. Still more haunting is the question of how many other wrongful convictions have not been uncovered and will never see the light of day. The New England Law Review has brought together a remarkable group of scholars who have each made leading contributions to the study of wrongful convictions from different disciplines and scholarly perspectives: Simon Cole, Deborah Davis, Gisli H. Gudjonsson, Richard Leo, and Elizabeth Loftus. Each has done ground-breaking work focusing on evidence in criminal investigations and prosecutions, looking beyond just what we know from the wrongful convictions that do come to light. This Symposium issue returns the focus to research that can tell us more about the causes of wrongful convictions, and in this introduction I try to do justice to their remarkable contributions

A Pioneer in Forensic Science Reform: The Work of Paul Giannelli

Few can say, I told you so, to our entire criminal justice system. Being right about what is wrong with the use of evidence in criminal cases is not a bad thing, but being able to influence the growing response to the crisis in modern forensics must be still more gratifying. Paul Giannelli is one of the rare law professors who was far ahead of his time in anticipating serious problems in the law that were not noticed and not carefully studied. Giannelli has helped to bring the field around to an understanding of the real scope of those problems and he has tirelessly worked to advance our knowledge in scholarship and in policymaking. If the law has not adequately corrected all of the problems that Giannelli continues to play a pioneering role in bringing to light, that is through no inadequacy of his own diagnoses and recommended cures. It is an honor to have the opportunity to contribute to this tribute honoring his work on the occasion of his retirement

Constitutional Reasonableness

The concept of reasonableness pervades constitutional doctrine. The concept has long served to structure common law doctrines from negligence to criminal law, but its rise in constitutional law is more recent and diverse. This Article aims to unpack surprisingly different formulations of what the term reasonable means in constitutional doctrine, which actors it applies to, and how it is used. First, the underlying concept of reasonableness that courts adopt varies, with judges using competing objective, subjective, utility-based or custom-based standards. For some rights, courts incorporate more than one usage at the same time. Second, the objects of the reasonableness standard vary, assessed from the perspective of judges, officials, legislators, or citizens, and from the perspective of individual decision-makers or general institutional or government perspectives. Third, judges may variously apply a constitutional reasonableness standard to a right, to the assertion of defenses, waivers, or limitations on obtaining a remedy for the violation of a right, or to standards of review. The use of the common term reasonableness” to such different purposes can blur distinctions between each of these three categories of standards. The flexibility and malleability of reasonableness may account for its ubiquity and utility. Entire constitutional standards can - and have - shifted their meaning entirely as judges shift from one concept or usage of reasonableness while appearing not to change the “reasonableness” standard or to depart from precedent. That ambiguity across multiple dimensions explains both the attraction and the danger of constitutional reasonableness. In this Article, I point the way to an alternative: regulatory constitutional reasonableness, in which reasonableness is presumptively informed by objective and empirically-informed standards of care, rather than a set of shape-shifting inquiries

The Metamorphosis of Corporate Criminal Prosecutions

Corporate criminal enforcement has exploded in this country. Billion dollar fines are now routine across a range of industries, where they were unimaginable a decade ago. We have federal prosecutors and the Department of Justice, together with the white-collar bar, to thank for this. Their innovations have transformed what was, in decades past, a backwater area of criminal practice. Yet deep concerns remain that corporate prosecution settlements offer lenient and non-transparent deals that fail to hold either the corporations or the culpable individuals adequately accountable. Now, the DOJ has begun to rethink the evolving corporate prosecution approach through the adoption of new guidelines. This Essay explores the most recent set of changes to the evolving DOJ approach, responding to an incisive critique offered by Professors Elizabeth Joh and Thomas Joo. While a commendable and overdue effort, I agree with Joh and Joo that the changes are incremental and may have perverse consequences. Still more troubling, the changes entirely fail to address separate concerns, including regarding calculation of fines, scope and effectiveness of compliance reforms, treatment of recidivists, and supervision of agreements. A deeper rethinking of the federal approach towards enforcing corporate crime is much needed. During a time of broader rethinking of our criminal justice priorities, the paramount concern with leniency and rehabilitation in corporate prosecutions should instead be directed to the benefit of individuals

Innocence, Harmless Error, and Federal Wrongful Conviction Law

This Article examines the body of law emerging in cases brought by former criminal defendants once exonerated, often through DNA testing, which may fundamentally reshape our criminal justice system. Federal wrongful conviction actions share a novel construction - they rely on criminal procedure rights incorporated as an element in a civil rights lawsuit. During a criminal trial, remedies for violations of procedural rights are often seen as truth defeating, because they exclude evidence possibly probative of guilt. In a civil wrongful conviction action, that remedial paradigm is reversed. The exonerated defendant instead seeks to remedy government misconduct that was truth defeating and concealed evidence of innocence. This Article contends that in a civil case, the harmless error rules that limit remedies for violations of criminal procedure rights do not apply. Further, though not generally recognized as such, the Supreme Court has created internal harmless error rules to accompany each of the relevant fair trial claims: the Brady v. Maryland right to have exculpatory evidence disclosed; the right to effective assistance of counsel; the right to be free from suggestive eyewitness identification procedures; and the right not to be subject to a coerced confession. Civil claims suggest the transformative result that for each right, harmless error insulation is stripped away. This Article concludes by reflecting on how wrongful conviction suits may spearhead wide-ranging reform of our criminal justice system and renew substantive development of the constitutional right to a fair trial

The Substance of False Confessions

A puzzle is raised by cases of false confessions: How could an innocent on convincingly confess to a crime? Postconviction DNA testing has now exonerated over 250 convicts, more than forty of whom falsely confessed to rapes and murders. As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This Article takes a different approach, by examining the substance of false confessions, including what was said during interrogations and how the confession statements were then litigated at trial and postconviction. Doing so sheds light on the phenomenon of confession contamination. Not only can innocent people falsely confess, but all except two of the exonerees studied were induced to deliver false confessions with surprisingly rich, detailed, and accurate information. We now know that those details could not have likely originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process. However, our constitutional criminal procedure does not regulate the postadmission interrogation process, nor do courts evaluate the reliability of confessions. This Article outlines a series of reforms that focus on the insidious problem of contamination, particularly videotaping interrogations in their entirety, but also reframing police procedures, trial practice, and judicial review. Unless criminal procedure is reoriented towards the reliability of the substance of confessions, contamination of facts may continue to go undetected, resulting in miscarriages of justice

The Crime Lab in the Age of the Genetic Panopticon

Scientific evidence really nails this man to the wall, the Harris County, Texas prosecutor told the jurors in closing statements. At trial, George Rodriguez claimed he was innocent and that he had been working a factory the day of the crime. The prosecutor emphasized, however, that the blood type of swabs taken from the victim showed that Rodriguez did commit the crime and that a hair from the crime scene matched him. But seventeen years later, the same hair was tested again, this time using DNA analysis, and the evidence cleared Rodriguez and ultimately led to the crime crime lab being shut down and recreated. The Rodriguez case illustrates why the crime lab has entered a time of crisis. I will discuss that case and the larger story of the transformation of the Houston lab, to introduce the first of three wonderful new books that I review here: Sandra Guerra Thompson\u27s Cops in Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories. Second, I turn to Erin Murphy\u27s book, Inside the Cell: The Dark Side of Forensic DNA, to explore Murphy\u27s compelling account of why DNA testing is no panacea for these growing problems and may instead actually magnify some of them. These failings raise the larger question whether improved research to support forensic disciplines, national regulation regarding the quality and standards for labs, and constitutional criminal procedure to remedy the poor litigation of forensics in the courtroom can help to address the failings of our crime labs. I suggest that efforts to improve research, regulation, and criminal procedure are beginning to show promise, but that much remains to be done. Third, I will discuss Adam Benforado\u27s book, Unfair: The New Science of Criminal Injustice, which looks broadly at the role of social science and criminal law, but focusing here on cognitive research and expert evidence. Finally, I will discuss how advances in scientific research and technology will reshape the crime lab of the future, creating new challenges and opportunities for criminal justice

Towards an International Right to Claim Innocence

In the past, wrongful convictions were seen as a local problem largely undeserving of national or international attention. Very different legal systems have shared a common approach of emphasizing the finality of criminal convictions, thereby making it very difficult to claim innocence by relying on new evidence uncovered post-trial. While international law guarantees a right to a fair trial, a presumption of innocence, and a right to appeal, no international human rights norms clearly obligate countries to allow defendants to meaningfully assert post-trial claims of innocence. Today, the procedures and attitudes toward claims of innocence that rely on newly discovered evidence are in flux as more countries have adopted broader remedies for convicts to claim innocence