Innocence projects identify people who, despite being found guilty in court and having their convictions affirmed on appeal, may be actually innocent of the crimes for which they were convicted. Innocence projects try to exonerate these actually innocent people. Innocence projects have also examined the trials of people who have been exonerated to understand how the conviction of actually innocent people resulted. Armed with that knowledge, innocence projects seek to prevent further wrongful convictions through education about the factors which contribute to the conviction of actually innocent persons and through proposals to improve systemic safeguards against wrongful conviction.
This article attempts to open—or hopefully expand—a dialogue between innocence projects and the forensic science community; an important, though often neglected, participant in the criminal justice system. Two members of the Board of Directors of the Innocence Project of Minnesota, a lawyer and a forensic anthropologist, will provide an overview of the background of innocence projects, general factors identified as contributing most significantly to the conviction of innocent persons, and the initiatives for systemic change—focusing on the role science played in wrongful conviction. It is hoped that through this article, forensic scientists and others will be encouraged to become involved in the effort to prevent wrongful convictions by contributing their ideas to the discussion and assisting in developing and implementing the necessary changes.
Almost everyone would agree that it is wrong to put a person to death or in prison for something they actually didn’t do, something for which they are “actually innocent.” That has been an accepted tenet of our criminal justice system since time immemorial, exemplified by the familiar adage “it is better to let ten guilty men go free than to convict one innocent man.” Early in the twentieth century, however, scholars and authors began to question whether innocent persons were being convicted in American courts and published a number of landmark books arguing that they were: Convicting the Innocent (1932), edited by Yale Law School Professor Edwin M. Borchard; The Court of Last Resort (1952), by Erle Stanley Gardner; The Death Penalty in America (1964), by Hugo Adam Bedau; and, In Spite of Innocence: Erroneous Convictions in Capital Cases (1992), by Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putnam.
Despite such scholarly studies, there were few cases in which everyone agreed that the person convicted was actually innocent of the crime. Traditional investigation techniques had occasionally resulted in exoneration of a wrongfully convicted person, but still left questions about whether the person’s innocence was really established. Cases of agreement, where the convicted person had been in a prison or a jail when the murder was committed, or where the “murder victim” turned up alive after conviction and sentencing, were written off by some as isolated mistakes that were bound to happen occasionally. On the broader question, there remained sharp disagreement and little definitive evidence to convince skeptics that actually innocent people had been convicted in courts in the United States on a larger scale.
In the 1980s, science delivered the prosecution a powerful new tool, DNA testing, which could link a specific person to a crime by analyzing bodily materials or fluids from a victim or a suspect. By the late 1980s, DNA testing began to be used by defense attorneys as a means of proving that a person convicted of a rape or murder did not commit that crime. This post-conviction use of DNA analysis altered the wrongful conviction debate forever by providing proof positive that actually innocent people had been convicted in American criminal courts. In the years 1989, 1990, and 1991, there were a total of five exonerations.
In the early 1990s, Barry Scheck and Peter Neufeld, two lawyers already familiar with DNA analysis, believed that there were many actually innocent persons who had been wrongly convicted and realized that a coordinated effort, an “innocence project,” was necessary to address the depth and national scope of the problem they perceived. They founded the first “innocence project” in conjunction with Cardozo Law School in New York, and began reviewing cases and assisting inmates from across the country who claimed they were actually innocent. The story of the “Innocence Project,” and the stories of some of the innocent people whose lives had been tragically affected by wrongful conviction, are recounted in Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (2000) by Jim Dwyer, Peter Neufeld, and Barry Scheck and in an updated edition, entitled When Justice Goes Wrong and How To Make It Right (2003). As of September 17, 2005, the Innocence Project has documented that 162 actually innocent people, convicted and sentenced to death or long prison terms for crimes they did not commit, had been exonerated since 1989 (http://www.innocenceproject.org/).
Factors Responsible for Wrongful Conviction
Through a “post mortem” of individual cases in the first 74 exonerations, Dwyer, Neufeld, and Scheck (2000) identified many factors that contributed to the wrongful convictions of actually innocent persons (Table 1). Mistaken eyewitness identifications, police misconduct, prosecutorial misconduct, bad lawyering by defense counsel, false testimony of jailhouse snitches and informants, false confessions, and bad science are some of the factors that have been identified as central to wrongful conviction. Because the same techniques and types of evidence that had resulted in the conviction of the innocent people were being used to obtain convictions every day in courtrooms across the country, the implications of their findings were clear: actually innocent people were beingwrongfully convicted on a large scale.
With this knowledge, the Innocence Project, and other similar organizations like the Innocence Project of Minnesota, has been pursuing initiatives to bring about systemic changes to the criminal justice process to decrease the chance of wrongful conviction of an actually innocent person. Two non-forensic initiatives undertaken to change criminal justice processes, which are already in place in some jurisdictions, involve police interrogations and eyewitness identification procedures.
Despite the difficulty in understanding why an innocent person would confess to something they didn’t do, especially something as serious as rape or murder, the post mortem showed it happened in 22% (Scheck et al. 2000; 26.92% in the first 130 exonerations in Scheck et al. 2003) of exoneration cases. An innocence project initiative to require recording police interrogations and “confessions” is being pursued in an effort to decrease false confessions.