2011/10/09

Reforms to prevent wrongful convictions

There are limits to what legal reforms can do to prevent convictions of innocents if the prosecutors are determined to commit misconduct. A law is needed requiring investigators and prosecutors to share all evidence, not just exculpatory evidence, with the defense, but not the reverse, because prosecutors bent on misconduct could use disclosures by the defense to engage in misconduct in other ways.

One has to wonder how many other innocents have been wrongly convicted for whom there is no DNA or other evidence that could exonerate them. Such evidence is unlikely in most cases of wrongful conviction, so there must be a great many of them remaining to receive justice.

There is a larger problem here: the lack of sufficient evidence to prove guilt beyond a reasonable doubt. That the DNA evidence could exonerate indicates the remaining evidence did not meet the burden of proof, and the judge and jury should have recognized that. Evidence of opportunity is not enough. There must also be evidence of motive, method, and in the absence of eyewitnesses, evidence of a pattern of behavior with which the crime was consistent.

Thus, we have two main problems in need of reform:

  1. The incentives that induce prosecutorial misconduct, and the lack of disincentives to discourage it; and
  2. Lack of training of judges, and especially jurors, on how to judge both evidence and the law.

1. Prosecutorial incentives

The main incentive is re-election or re-appointment as prosecutor or election to a higher office, with the conviction rate being touted as the basis for that. As long as candidates get elected by winning convictions and not by refraining from prosecuting innocents, the problem will persist. That suggests two key reforms:

  • a. A limit of two terms for a prosecutor in the same jurisdiction.
  • b. A requirement that a prosecutor not seek or accept any other elected office, state or federal, for ten years after one or two terms as a prosecutor.
  • c. Make prosecutorial misconduct a crime and open the process to private prosecutors to prosecute them, which means opening grand juries to hear indictments from private citizens who it might appoint to prosecute.
  • d. Require all arguments of law be made to the jury, not just to the judge, because some wrongful conviction comes from the jury not getting all sides on what the law is. The judge may have to rule on motions on points of law, but the jury needs to review how such decisions were made in reaching a verdict.
  • e. Forbid plea bargains and reduced penalties for giving evidence.
  • f. Require juries in all criminal trials, even if the defendant pleads guilty. There are also falsely entered pleas, and a jury needs to be involved to spot that.

2. Training

Prior to about WWI people got training in how to serve as competent jurors in school, in public gatherings, and by serving on juries. In the 1950s my mother served on a jury about once every two years, and on almost every jury there were some members who had previous experience as jurors. They all took their duty very seriously, and were determined to do a good job as jurors. That situation deteriorated during the 20th century. That suggests we should:

  • a. Teach law and judicial process to high school students in courses on American government.
  • b. Teach evaluation of evidence in science courses.
  • c. Teach resistance to propaganda and logical fallacies in English and history courses.
  • d. Have students observe actual trials and interview participants. 
  • e. Have students conduct their own innocence projects.

More at Trial Jury Reform.

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