Lost Lives: Miscarriages of Justice in Capital Cases

Gross discusses the incidence of erroneous convictions for capital murder, which are systematic consequences of the natuere of homicide prosection in general and capital prosecution in particular

What We Think, What We Know and What We Think We Know about False Convictions

False convictions are notoriously difficult to study because they can neither be observed when they occur nor identified after the fact by any plausible research strategy. Our best shot is to collect data on those that come to light in legal proceedings that result in the exoneration of the convicted defendants. In May 2012, the National Registry of Exonerations released its first report, covering 873 exonerations from January 1989 through February 2012. By October 15, 2016, we had added 1,027 cases: 599 exonerations since March 1, 2012, and 428 that had already happened when we issued our initial report but were not known to us. In this paper I discuss what can and cannot be learned from the exonerations that we have collected. The cases we find and list are not a complete set of all exonerations that occur—not nearly—but it’s clear from the patterns we see in known exonerations that false convictions outnumber exonerations by orders of magnitude. We cannot estimate the rate of false convictions or their distribution across crime categories. We can confidently say, however, that they are not rare events—and other research has estimated the rate of false convictions among death sentences at 4.1%, which provides an anchor for estimates of the rate for other violent crimes. We know that several types of false or misleading evidence contribute to many erroneous convictions (eyewitness misidentifications, false confessions, bad forensic science, perjury and other lies), as does misbehavior by those who process criminal cases: misconduct by police and prosecutors; incompetence and laziness by defense attorneys. Beyond that, we cannot say how false convictions are produced. It’s clear, however, from the relative prevalence of these factors that the process differs radically from one type of crime to another. Data from one local jurisdiction (Harris County, Texas) strongly suggest that across the country thousands if not tens of thousands of innocent defendants a year plead guilty to misdemeanors and low-level felonies in order to avoid prolonged pretrial detention. And our data clearly show that innocent African Americans are much more likely to be wrongfully convicted of crimes than innocent whites, in part because of higher criminal participation in the African American community and in part because of discrimination

What We Think, What We Know and What We Think We Know about False Convictions

False convictions are notoriously difficult to study because they can neither be observed when they occur nor identified after the fact by any plausible research strategy. Our best shot is to collect data on those that come to light in legal proceedings that result in the exoneration of the convicted defendants. In May 2012, the National Registry of Exonerations released its first report, covering 873 exonerations from January 1989 through February 2012. By October 15, 2016, we had added 1,027 cases: 599 exonerations since March 1, 2012, and 428 that had already happened when we issued our initial report but were not known to us. In this paper I discuss what can and cannot be learned from the exonerations that we have collected. The cases we find and list are not a complete set of all exonerations that occur—not nearly—but it’s clear from the patterns we see in known exonerations that false convictions outnumber exonerations by orders of magnitude. We cannot estimate the rate of false convictions or their distribution across crime categories. We can confidently say, however, that they are not rare events—and other research has estimated the rate of false convictions among death sentences at 4.1%, which provides an anchor for estimates of the rate for other violent crimes. We know that several types of false or misleading evidence contribute to many erroneous convictions (eyewitness misidentifications, false confessions, bad forensic science, perjury and other lies), as does misbehavior by those who process criminal cases: misconduct by police and prosecutors; incompetence and laziness by defense attorneys. Beyond that, we cannot say how false convictions are produced. It’s clear, however, from the relative prevalence of these factors that the process differs radically from one type of crime to another. Data from one local jurisdiction (Harris County, Texas) strongly suggest that across the country thousands if not tens of thousands of innocent defendants a year plead guilty to misdemeanors and low-level felonies in order to avoid prolonged pretrial detention. And our data clearly show that innocent African Americans are much more likely to be wrongfully convicted of crimes than innocent whites, in part because of higher criminal participation in the African American community and in part because of discrimination

Law in the Backwaters: A Comment of Mirjan Damaška\u27s Evidence Law Adrift

The most problematic part of Professor Mirjan Damaška\u27s fine book is the title.\u27 Professor Damaška does an excellent job of situating American evidence law in the procedural context in which American trials occur. He identifies three major procedural elements. First, juries are traditionally cited as the primary or sole explanation for our extensive set of exclusionary rules, which are said to express mistrust of lay adjudicators. Professor Damaška points out as well that lay juries permit a divided court, with a professional judge who has exclusive control over questions of law, and that this division is necessary for the operation of exclusionary rules because it makes it possible to keep the excluded evidence from the notice of the trier of fact. Second, our privatized system of factfinding is based on party control over the production of evidence, which polarizes the presentation and makes the evidence itself suspect. Finally, the use of one-time, single-case juries requires concentrated trials that take place in a continuous and comparatively compact period of time. Given this temporal concentration, questions about the reliability of evidence must be resolved quickly-frequently on the spot-which limits the possibility of additional investigation or rebuttal, and favors exclusion as a remedy. Professor Damaška\u27s argument (to which I have not nearly done justice) is rich and for the most part persuasive. But why call it Evidence Law Adrift? A stronger case could be made that evidence law is fixed in place, or at least tightly tethered

We Could Pass a Law ... What Might Happen if Contingent Legal Fees Were Banned

This is an exercise in fantasy. My task is to imagine what would happen if we simply abolished the institution of the contingent fee by statute. I cannot justify that task on grounds of urgency. Contingent fees are not about to be abolished, and they probably.are not going to be seriously restricted. My hope is that the exercise will be amusing in itself, and that in the process we might learn something about contingent fees as we now use them

Law in the Backwaters: A Comment of Mirjan Damaška\u27s Evidence Law Adrift

The most problematic part of Professor Mirjan Damaška\u27s fine book is the title.\u27 Professor Damaška does an excellent job of situating American evidence law in the procedural context in which American trials occur. He identifies three major procedural elements. First, juries are traditionally cited as the primary or sole explanation for our extensive set of exclusionary rules, which are said to express mistrust of lay adjudicators. Professor Damaška points out as well that lay juries permit a divided court, with a professional judge who has exclusive control over questions of law, and that this division is necessary for the operation of exclusionary rules because it makes it possible to keep the excluded evidence from the notice of the trier of fact. Second, our privatized system of factfinding is based on party control over the production of evidence, which polarizes the presentation and makes the evidence itself suspect. Finally, the use of one-time, single-case juries requires concentrated trials that take place in a continuous and comparatively compact period of time. Given this temporal concentration, questions about the reliability of evidence must be resolved quickly-frequently on the spot-which limits the possibility of additional investigation or rebuttal, and favors exclusion as a remedy. Professor Damaška\u27s argument (to which I have not nearly done justice) is rich and for the most part persuasive. But why call it Evidence Law Adrift? A stronger case could be made that evidence law is fixed in place, or at least tightly tethered

Substance and Form in Scientific Evidence: What Daubert Didn\u27t Do

On its face, Daubert v. Merrell Dow Pharmaceuticals was about as easy a case as the Supreme Court gets. The plaintiff claimed that their birth defect were caused by the anti-nausea drug Bendectin, which their mothers had used during their gestation. In response to a motion for summary judgment by the defendant, the plaintiff presented affidavits of eight expert witnesses who offered their opinion - based on a variety of studies- that Bendectin was indeed the culprit. The federal district court that heard the motion granted summary judgment to the defendant, and the Ninth Circuit affirmed. Both lower court held that critical portions of the plaintiff \u27 evidence were inadmissible, and that without that evidence the plaintiffs had not met their burden of producing sufficient evidence to present a genuine factual dispute. The first holding - that this expert evidence was inadmissible - was the sole issue in the Supreme Court

Souter Passant, Scalia Rampant: Combat in the Marsh

Kansas law provides that unless a capital sentencing jury concludes that the mitigating factors that apply to the defendant’s crime outweigh the aggravating factors, it must sentence the defendant to death. The Kansas Supreme Court held that this law violates the Eighth and Fourteenth Amendments because it “impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.” On June 26, in Kansas v. Marsh, the Supreme Court reversed in a 5 to 4 opinion by Justice Thomas