Recipe for Bias: An Empirical Look at the Interplay between Institutional Incentives and Bounded Rationality in Prosecutorial Decision Making, A

Prosecutors wield tremendous power, which is kept in check by a set of unique ethical obligations. In explaining why prosecutors sometimes fail to honor these multiple and arguably divergent obligations, scholars tend to fall into two schools of thought. The first schoolfocuses upon institutional incentives that promote abuses ofpower. These scholars implicitly treat the prosecutor as a rational actor who decides whether to comply with a rule based on an assessment of the expected costs and benefits of doing so. The second school focuses upon bounded human rationality, drawing on the teachings of cognitive science to argue that prosecutors transgress not because of sinister motives but because they labor under the same cognitive limitations that all humans do. In this Article, I begin to unify these two schools of thought into a comprehensive approach. I apply the lessons of cognitive science to identify the ways in which prosecutors\u27 distinctive institutional environment may undermine not just their willingness to play fair but also their ability to do so. Research on the psychological effects of accountability demonstrates that, when people are judged primarily for their ability to persuade others of their position, they are susceptible to defensive bolstering at the expense of objectivity. I argue that prosecutors operate under precisely such a system and are therefore particularly susceptible to biases that undermine their ability to honor obligations that require some objectivity on their part. In support of this claim, I present the results of two original experiments demonstrating that holding people accountable for their ability to persuade others of a suspect\u27s guilt exacerbates common cognitive biases relevant to prosecutorial decision making. I discuss the implications of this research in light of current issues surrounding defendants\u27 rights to pre-trial discovery, the use of informant testimony, and prosecutors\u27 roles in criminal investigation

A Comparative Study of the Removal of Corn and Cottonseed Oil Stains from Wool and Silk

This study was made in an effort to explain the development by dry cleaning of brown stains on silk and wool garments soiled with salad oils made from vegetable oils. The results indicate that age, light, and oxygen alone are negligible factors - the chief contributing cause being heat in the presence of air. This condition is brought about by hot pressing before cleaning or drying in a tumbler in a dry cleaning plant. Corn oil is particularly troublesome, due apparently to the larger percentage of esters of unsaturated fatty acids

Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases

In the first part of this article, we address the problems inherent in studying wrongful convictions: our pervasive ignorance and the extreme difficulty of obtaining the data that we need to answer even basic questions. The main reason that we know so little about false convictions is that, by definition, they are hidden from view. As a result, it is nearly impossible to gather reliable data on the characteristics or even the frequency of false convictions. In addition, we have very limited data on criminal investigations and prosecutions in general, so even if we could somehow obtain data on cases of wrongful conviction, we would have inadequate data on true convictions with which to compare them. In the second part of the article, we dispel some of that ignorance by considering data on false convictions in a small but important subset of criminal cases about which we have unusually detailed information: death sentences. From 1973 on, we know basic facts about all defendants who were sentenced to death in the United States, and we know which of them were exonerated. From these data we estimate that the frequency of wrongful death sentences in the United States is at least 2.3 percent. In addition, we compare post-1973 capital exonerations in the United States to a random sample of cases of defendants who were sentenced in the same time period and ultimately executed. Based on these comparisons, we present a handful of findings on features of the investigations of capital cases, and on background facts about capital defendants, that are modest predictors of false convictions

A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials

Among those who laud its mission, it seems that the only people not disappointed in Batson are those who never expected it to work in the first place. Scholars, judges, and practitioners have criticized the decision for its failure to curb the role of racial stereotypes in jury election. Likewise, previous research in North Carolina has suggested both that race continues to play a role in jury selection and that courts are reluctant to enforce Batson rigorously. Recently, however, the North Carolina General Assembly passed legislation aimed at curing this defect by providing trial courts a unique opportunity to consider the role of race in peremptory challenges from a different angle. The North Carolina Racial Justice Act of 2009 (“RJA”) created a state claim for relief for defendants currently on death row who can show that race was a significant factor in the exercise of peremptory challenges in their cases. A defendant who makes such a showing is entitled to have a death sentence reduced to life without parole. The RJA expressly deems a broad range of evidence relevant by allowing claimants to prove their cases using “statistical evidence or other evidence, including, but not limited to, sworn testimony of attorneys, prosecutors, law enforcement officers, jurors, or other members of the criminal justice system or both.” This Article presents the results of a study undertaken in order to evaluate the potential for statistical evidence to support claims under this part of the RJA. In particular, we examined how prosecutors exercised peremptory challenges in capital trials of all defendants on death row in North Carolina as of July 1, 2010, to assess whether potential jurors’ race played any role in those decisions. We found substantial disparities in which potential jurors prosecutors struck. Over the twenty-year period we examined, prosecutors struck eligible black venire members at about 2.5 times the rate they struck eligible venire members who were not black. These disparities remained consistent over time and across the state, and did not diminish when we controlled for information about venire members that potentially bore on the decision to strike them, such as views on the death penalty or prior experience with crime. In Part II, we review the prior research on jury selection, particularly on the issue of racial bias. In Part III, we present our study methodology and design. Part IV presents the statewide unadjusted racial disparities in prosecutors’ exercise of peremptory strikes, and Part V presents the results of analyses controlling for other factors potentially relevant to jury selection

Frequency and Predicators of False Conviction: Why We Know So Little, and New Data on Capital Cases

In the first part of this article, we address the problems inherent in studying wrongful convictions: our pervasive ignorance and the extreme difficulty of obtaining the data that we need to answer even basic questions. The main reason that we know so little about false convictions is that, by definition, they are hidden from view. As a result, it is nearly impossible to gather reliable data on the characteristics or even the frequency of false convictions. In addition, we have very limited data on criminal investigations and prosecutions in general, so even if we could somehow obtain data on cases of wrongful conviction, we would have inadequate data on true convictions with which to compare them. In the second part of the article, we dispel some of that ignorance by considering data on false convictions in a small but important subset of criminal cases about which we have unusually detailed information: death sentences. From 1973 on, we know basic facts about all defendants who were sentenced to death in the United States, and we know which of them were exonerated. From these data we estimate that the frequency of wrongful death sentences in the United States is at least 2.3 percent. In addition, we compare post-1973 capital exonerations in the United States to a random sample of cases of defendants who were sentenced in the same time period and ultimately executed. Based on these comparisons, we present a handful of findings on features of the investigations of capital cases, and on background facts about capital defendants, that are modest predictors of false convictions

Grounding Criminal Procedure

Article published in the Journal of Gender, Race & Justice

Confronting Race: How a Confluence of Social Movements Convinced North Carolina to Go where the McCleskey Court Wouldn’t

Article published in the Michigan State Law Review

Report on Jury Selection Study

This report documents the study design, methodology, analysis, and results for a study on the exercise of peremptory challenges during jury selection in trials of all defendants on death row in North Carolina as of July 1, 2010. The study examined how prosecutors exercised peremptory challenges in capital cases to assess whether potential jurors’ race played any role in those decisions. The primary investigators for the study are Barbara O’Brien and Catherine Grosso. Both are associate professors of law at Michigan State University College of Law