Wrongful Convictions 1
Running head: WRONGFUL CONVICTIONS
Wrongful Convictions: Causes and Remedies
Sally J. Studnar
Boise State University
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Every year innocent people are handed prison sentences for crimes they did not commit.
No statistics are kept by any Criminal Justice Department on the number of wrongful
convictions but research has estimated 5% of the cases tried annually result in a false
conviction. This report will include various reasons behind wrongful convictions, such as
misidentification, false confessions, bad forensics, lack of DNA testing, jailhouse
confessions, and coercion. As well, a number of ideas will be discussed as possible
solutions to help lower the number of false convictions that are handed down to the
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Wrongful Convictions: Causes and Remedies
In July, 1979, a man by the name of Gary Dotson was convicted of aggravated
kidnapping and rape (Innocence Project, 2007). At trial, the prosecution’s evidence
included a composite sketch of the assailant prepared by police with assistance from the
victim as well as eye-witness identification by the victim of Mr. Dotson from a police
mug book and lineup. As well, blood evidence of groups A and B were found in semen
on the victim’s undergarments. Despite the findings of type A blood, that should have
excluded him, a forensic analyst testified that both the victim and Dotson had blood type
B, stating Dotson could have been the source of the semen. The analyst also testified that
pubic hair removed from the undergarments was ‘similar’ to Dotson’s. This testimony
was also improper due to inadequate empirical data on the frequency of various class
characteristics in human hair making statements about certain hairs being ‘similar’
intrinsically prejudicial and lacking probative value (Microscopy of Hair, 2004, p. 13).
Found guilty, Dotson’s sentence was 25-50 years.
The victim in this case recanted her testimony in March of 1985 claiming she made up
the rape to hide a sexual encounter with her boyfriend. The trial judge refused Dotson’s
request for a new trial on grounds that the complainant’s original testimony was more
believable than the recantation.
In 1988, at the insistence of Dotson’s new attorney, Deoxyribonucleic Acid (DNA)
tests not available at the time of trial were performed on a semen sample. The tests
revealed the semen was from the victim’s boyfriend. On August 14, 1989, Gary Dotson
had his conviction overturned. He had served eight years.
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In North Carolina, two incidents of rape occurred in July of 1984. Ronald Cotton was
arrested for both rapes in August of the same year even though his alibi was supported by
family members. The prosecution based its case on a photo and police lineup
identification by one of the victims. The jury was not allowed to hear evidence that the
second victim did not pick Cotton out from the same lineup. Convicted of both counts of
rape, Mr. Cotton was sentenced to life plus 54 years (Innocence Project, 2007).
On appeal, Cotton was granted a retrial based on statements from an inmate
incarcerated at the same facility Cotton was being held at. This inmate bragged that he
had committed the crimes Cotton was convicted of. Although both inmates were present
at the new trial, the victim still identified Cotton as her assailant.
In 1994, a motion was filed for DNA testing of vaginal swabs by Cottons’ two new
lawyers. Results of the tests showed no match to Cotton. The evidence was plugged into
the State Bureau of Investigation’s DNA data base and showed a match with the convict
who had earlier confessed to the crime. On June 30, 1995, Ronald Cotton was cleared of
all charges. He had served ten and a half years of his sentence.
One major factor has been the driving force behind the recent attraction to the topic of
wrongful conviction; the highly-publicized exonerations of individuals serving long
prison sentences through the use of DNA evidence. Wrongful conviction can be defined
several ways. Broad definitions include cases where charges have been dropped without
retrial or convictions being overturned in court and the defendant found not guilty. This
study focuses on a narrower definition; “Convicted innocents….are people who have
been arrested on criminal charges…who have either pleaded guilty to the charge or have
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been tried and found guilty: and who, notwithstanding plea or verdict, are in fact
innocent” (Huff, Rattner, and Sagarin, 1996, p. 10).
There are numerous reasons why wrongful convictions are a serious problem, but the
two most compelling are the implications of justice and the implications for public safety
(Wrongful Conviction and Public Policy, 2002). Every year, in this country, innocent
people are handed prison sentences for crimes they did not commit. These cases involve
people from every socioeconomic strata; “the penniless and friendless to the well-to-do
and socially prominent” (Rattner, 1988, p. 285). Although no statistic is kept by any
Criminal Justice Department on the number of wrongful convictions, it is estimated by
Rattner (1988) that approximately 5% of the cases tried annually have resulted in an
innocent person being found guilty. That percentage can be equivalent to 14,000 false
convictions per year.
There are numerous inferences on why this miscarriage of justice exists in our court
system (Loewry, 2007). This report will focus its research on the causes behind wrongful
convictions which vary and may include:
• Eye-witness misidentification
• Improper handling of evidence, i.e. bad forensics
• Lack of DNA testing
• False confessions by suspects, both voluntary and coerced
• Informants, Cooperators, and Jailhouse Snitches
• Coercion or over zealousness by court officials
As well, this report will examine possible remedies and systematic changes that could
reduce the conviction rate of innocent people.
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A review of past research has shown that the most prominent cause of wrongful
convictions nationwide is eye-witness misidentification. It has a staggering percentage
rate of playing some type of role in 75% of the cases that have been overturned through
DNA testing (Actual Innocence, 2000, p. 45).
A study by Barry Scheck (2008) on forensic evidence revealed that not more than
20% of felony cases involve biological evidence (Scheck, 2008, p. 4). Although this
figure may seem low, the power of proper handing and testing of biological evidence can
offer invaluable hope to an innocent suspect. An interesting observation in this study
points out the need to look at how suspects get incarcerated in the first place. As well,
Scheck (2008) stated that the lack of post-conviction DNA testing has resulted in
countless individuals being sentenced for crimes they did not commit, a statistic
impossible to measure.
Other variables that lead to wrongful convictions are false statements and confessions.
These can be extracted from suspects through questionable methods (Leo, Ofshe, 1998)
or gathered from jailhouse snitches, informants, or cooperators. Research by Leo and
Ofshe (1998) has shown that these statements and confessions have been responsible for
some wrongful convictions. Many people believe the use of such evidence has corrupted
our criminal justice system while others, mostly prosecutors, believe that cases where
such evidence is used are a deviation from the typical process.
I. Eye-witness Misidentification
Most witness misidentifications were made in good faith with the witness attempting
to help officials find the real perpetrator of a crime, although this explanation does not
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examine the conditions under which these identifications were made. Some of the
conditions that need to be taken into account are whether a photo was shown to a victim
by the police before a lineup, whether the identification by the witness was hesitant, or if
the victim was urged to be positive when testifying. Additionally, was the identification
from the same race; was there prejudice, how much distance and duration of interaction
was there between victim and suspect prior to identification and what were the viewing
conditions; darkness or day light? With so many factors involved, it should be obvious to
some why eye-witness misidentification can happen so frequently.
Moreover, the testimony of an eyewitness relies on how accurate their memory of an
event actually is. So how does memory work? According to scientists, a memory is
formed when neurons link together and form a new series of circuits or connections. This
process actually changes the contact between the cells and it is during this process that
the memory is stored (Creating False Memories, 1997, p. 70). Experiences that happened
a few minutes ago, as well as information several decades old, are called long-term
memories. Stored in mental “drawers’ somewhere in the brain, these long-term memories
can hold as many as 1 quadrillion (1 million billion) separate bits of information
(Ketcham, 1991, p. 3). Densely packed and obviously extremely crowded, these
‘drawers’ that hold memories are consistently being emptied, the memories are scattered
around, and then packed back into place without order of importance. When this occurs,
new bits of information can be added to a long-term memory and in essence, the old
memory may be removed, replaced, or discarded into a corner. As details are added or
eliminated, the facts are gradually changed and can bear little resemblance to the original
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With this knowledge, scientists believe that in addition to memories fading, they can
also grow. Yet, an eye-witness is not aware of the brain’s distortion of past experiences.
As the memory fades, a person becomes convinced that what they saw or said, although a
blending of fact and fiction, in their mind is completely truthful. In a sense, Ketcham
(1991) explains that this makes us faultless victims of our mind’s operations and since
memory is so malleable and subject to distortions, the accuracy of a victim’s memory is
questionable, especially when you factor in any trauma from an event.
Forensic Psychologist Elizabeth Loftus, who specializes in memory research,
conducted a study on visual memory through facial studies. The study exposed
individuals to a series of faces, one at a time, for three second intervals. A brief period of
five to six minutes was allowed to pass and then a new series of faces were presented.
Individuals were then shown two faces side by side and asked to select the face they saw
from the original series. On occasion, slightly altered versions of some of the original
faces were presented next to a face not shown in the first series. All test subjects chose
the altered version. Then, in a later portion of the experiment, the altered face was paired
up with the original face the alteration was derived from. Results from the study showed
that 50% of the testers chose the altered face instead of the original face (Imagination
Inflation, 1996, p. 214).
During a traumatic event, such as a rape or assault, a person does not forget the event,
but details don’t get encoded. Fear and stress reduce the ability to acquire detailed
memories. Furthermore, forming a good memory is not a priority of the brain at this
point, rather the production of fight or flight tendencies and survival instincts are the
main focus of the moment. But precise memory becomes crucial in the event of a crime
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and small details assume enormous importance. Civil and criminal cases often rely on
trivial, subtle details and a pointing finger of blame can have a powerful hold on a jury.
Anyone can be convicted of a crime he or she did not commit based solely on the
evidence of a witness who can convince a jury that what they saw in their memory is
correct. People, as well as jurors, believe that a memory is a fact and that is what makes
eye-witness testimony so powerful and convincing. Since the accuracy of visual memory
plays such a key role in a victim’s ability to select the right suspect from a photo or police
line-up, what steps can be taken to ensure mistakes are not made?
Misidentifications are sometimes brought about by common police procedures. When
the police do have a suspect in mind, the witness in the case is shown an array of photos.
An actual line-up is used only if identification from the photos is made. This procedure is
called “photo-biased lineup” and chances of someone misidentifying a suspect rise
dramatically when this procedure is used (Ketcham, 1991, p. 4).
As well, the process of showing witnesses numerous photos at one time can cause bias
when trying to identify a suspect. It is easy for a witness to pick out a person who
resembles the suspect when they can compare faces side by side. The actual suspect may
not even be part of the group of photos and if this information is not provided to the
witness, they may feel compelled to choose someone anyway. A practice that should be
put into place to prevent misidentification is showing a witness photographs one at a time
and not in groups. The suspect may or may not be included in the photos and this
information should be told to the witness. By viewing each picture individually, the
witness does not have other ‘suspects’ to compare faces against. Since misidentifications
are often blamed on the fact that the real criminal bears a close resemblance to the
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wrongly identified person, using this method can significantly reduce the chances of
making this catastrophic mistake (Where Justice Goes Wrong, 1983, p. 12S).
Once photo identification is made, most police departments will then conduct a line-
up. Unfortunately, too often the line-up consists of the suspect surrounded by individuals
who bear no resemblance to him whatsoever. How hard would it be to pick out a tall
suspect if he were surrounded by people three to five inches shorter than him? Or, what
would the difficulty be in choosing an African American suspect who was included in a
pool of all Caucasian’s? This practice is all too common in our judicial system (Where
Justice Goes Wrong, 1983, p. 12V).
The correct procedure would be to produce a line-up consisting of individuals who
favor each other. If the true perpetrator is among the group, the witness should have no
problem picking them out, especially after a photo identification of the individual. If they
are still unsure, they should not be persuaded by officials in any manner to make a
choice. After all, misidentification of an individual can be a matter of life or death.
Lastly, Defense attorneys can also ask judges to read a list of instructions to the jury
on the dangers of eye-witness identification. Another possible solution in eye-witness
cases is expert testimony. A psychologist can give a detailed explanation to the jury on
how human memory works and show how experimental findings relate to the case in
IV. Mishandled/Bad Forensic Evidence
Bad forensics can come in numerous forms. A fingerprint expert may claim a match
from a print that doesn’t have enough points to truly compare or an expert can either
inadvertently or sometimes intentionally use the wrong print. Similarly, samples can be
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analyzed improperly, taken incorrectly, or DNA can be mishandled. Schwinghammer
reminds us that, “forensic evidence of any nature is only as good as the expert collecting
the samples or performing the tests” (265).
There are two sides to forensic problems: deliberate and inadvertent error. One can
only hope that deliberate error is rare and when it is uncovered, discipline should be fast
and severe. Besides deliberate dishonesty, an expert might also shade the truth about
certain evidence. For example, if an expert believes a defendant is guilty they may claim
that a partial identification of a fingerprint is a true match and this can lead to a wrongful
Approximately 20% of felony cases involve biological evidence. Of that percentage, a
primary suspect can be excluded in 26% of the cases if post DNA testing is performed
accurately (Scheck, 2008, p. 12). To perform a proper test on evidence, it must be
handled with extreme care to prevent contamination. After reviewing forensic procedures
leading up to wrongful convictions, statistics show that 75% of the time the forensic
evidence in the case was either lost or destroyed (Scheck, 2008, p. 12).
In the cases of inadvertent or accidental forensics, the defense counsel must present
their own forensics experts to counter the prosecutions claims. Unfortunately, this is
easier said than done. Forensic experts are not cheap, and many defendants cannot afford
to pay for their own expert witnesses, yet the cost of not doing this could be even more
convictions of innocent people.
Guidelines that are strictly enforced by forensic labs are needed in every state as a
possible solution to the mishandling of evidence. Judicial efforts could also be made to
ensure that police personal are properly trained for collection and handling of forensic
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evidence. These efforts, though they may seem simple, could vastly reduce the
percentage of innocent people being sent to prison annually on wrongful convictions.
IV. Lack of DNA Testing
When considering the reasons behind a lack of DNA testing, one must first take into
account whether the test was available when a certain case came to trial. DNA printing
made its debut in the United States in 1987 (Pearsall, 1999). Resembling a genetic
blueprint, a technician uses laboratory procedures to break up DNA extracted from cells
in a tissue sample such as blood, skin, or hair. Once broken into segments, a visual image
of the segments creates an individual pattern containing certain characteristics. The DNA
print can be used to identify or clear suspects by comparing any DNA evidence found at a
To date, there have been 232 people exonerated by DNA testing nationwide in 33
states (Innocence Project, 2009). 102 of those cases had conviction years prior to 1987.
Had DNA testing been available, 102 innocent people would not have had to spend any
time in prison. In these cases, the lack of science cannot be blamed, yet these
exonerations create a window into the criminal justice system to see what is being done
right as well as where the blame lies.
The number of DNA exonerations has increased from one or two a year in 1989 to
1991, to an average of six a year from 1992 through 1995, to an average of twenty a year
since 2000 (Exonerations in the United States, 2005). So why is DNA testing not an
automatic procedure when there is biological evidence available to test? That question
has been posed by many individuals serving time for crimes in which they could have
been excluded had the courts allowed the testing. Lack of testing in these cases were a
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result of either insufficient funds, poor representation of council, a claimed lack of
evidence, or the magistrate deciding testing wasn’t necessary (Pearsall, 1999).
The bottom line is rather profound; every time an innocent person is convicted, it
means the real perpetrator is still at large. Not only is an injustice to the innocent person
occurring but an even greater injustice is being put upon every law abiding citizen in the
country; the risk of being a victim of the real perpetrator.
IV. False Confessions by Suspects: Voluntary and Coerced
In 1989, a female jogging through Central Park in New York City was raped, beaten,
and left for dead. She survived, but to this day she is completely amnesic to the incident.
The crime scene, although bloody, showed no physical traces of five African and
Hispanic American boys, 14 to 16 years old, who were convicted of the act and sent to
prison. The boys were prosecuted and convicted based on police-induced confessions.
Thirteen years later, Matias Reyes, came forward and confessed to the rape. He was in
prison for three other rapes and a murder committed after the jogger attack. The
Manhattan district attorney’s office reinvestigated the case. DNA testing on semen
samples recovered from the victim’s body, which had conclusively excluded the boys as
donors, belonged to Reyes (On the Psychology of Confessions, 2005). In December
2002, the boy’s convictions were vacated.
This case and other exonerations highlight the problem of wrongful convictions
containing false confessions. Research shows that 15% to 25% of these convictions
contain false confessions in evidence (On the Psychology of Confessions, 2005). This
research also suggests that actual innocence does not necessarily protect people. Since
people naively believe in their innocence, they may waive their rights and subject
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themselves to highly confrontation interrogations. Innocence can literally put innocent
people at risk.
The history of American police interrogation reveals that in the 1920s and 1930s a
method referred to as the third degree was rampant (The Impact of Miranda Revisited,
1996). This method included the infliction of physical pain or psychological duress or
coercion during the interrogation of suspects. Since the Miranda decision in the 1960s,
the third degree in America has been episodic making it the exception, not the rule. The
Los Angeles Police Department scandal of the Ramparts Department is probably the most
well known area in the United States in recent years where the third degree came into
play. This scandal brought to light over 100 cases where innocent people were framed,
beaten, or wrongly convicted because of perjury by police officers, many by plea bargain.
It is easy to understand how, threats of incarceration, physical violence, or psychological
duress could essentially lead to a false confession.
The Fourteenth Amendment due process test seeks to exclude confessions if the will
of the suspect is pressured (The Impact of Miranda Revisited, 1996). This involves an
inquiry into both the tactics the police use and whether these tactics can be considered
coercive. A background check of the suspect’s personality is also performed to determine
how vulnerable to persuasion they may tend to be.
Confessions are exceptionally damning. There are very few jurors who will believe
that an innocent person would falsely implicate themselves. A skillful questioner can
sometimes convince a suspect, especially someone young, not too intelligent, or easily
led, that they did indeed commit the crime. The best way to prevent or at least minimize
this harm is to require all police departments to videotape the confession process. If there
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is any pressure on a defendant, the defense attorney and perhaps the jury will see it. This
certainly won’t eliminate false confessions that lead to convictions, but it can decrease
the damage. This mandatory requirement became a law in Alaska in 1985 and Minnesota
in 1994 (The Impact of Miranda Revisited, 1996).
An additional policy change that could aid in the solution of false confessions would
be pre-selection interrogation procedures. Today’s police are trained in pseudoscientific
methods that supposedly teach them how to read somebody’s body language, or the
movement of their eyes to somehow tell them if they are innocent or not. Controlled
studies (On the Psychology of Confessions, 2005) have shown that police officers are no
better at determining if someone is telling the truth or lying than anyone else. We must
retrain police officers so they don’t interrogate someone if they think they are acting the
way only guilty people act.
We also need to educate police officers about false confessions. Kassin (2005) has
asked police investigator confident in their training-based skills at interviewing and
interrogations, if they were concerned about persuasive methods that might influence an
innocent person to confess. The most common answer given was “No, because I do not
interrogate innocent people.” This mindset illustrates the risk of error to those individuals
who are actually innocent.
V. Informants, Cooperators, and Jailhouse Snitches