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Criminal Justice Magazine
Winter 2004
Volume 18 Number 4

Criminal Justice Matters

Convicting the Innocent: An Instructional Issue

J. Vincent Aprile II

J. Vincent Aprile II practices law at Lynch, Cox, Gilman & Mahan P.S.C. in Louisville, Kentucky, with an emphasis on criminal law. He is retired from the Kentucky Department of Public Advocacy (1973–2003), where he served as the agency’s first general counsel for 17 years (1982–1999). He is also a Section Council member, former chair ­and current member of the Criminal Justice magazine editorial board, as well as a contributing editor.

Today, as the result of Barry Scheck and Peter Neufeld’s Innocence Project, the American public has been provided with convincing scientific evidence, in the form of DNA exonerations, that has exposed the long-hidden reality of America’s criminal justice system: convictions of the innocent not only occur but also remain undetected despite the traditional corrective mechanisms of appeals and postconviction actions. ( Barry Scheck, Peter Neufeld & Jim Dwyer, Actual Innocence: When Justice Goes Wrong and How to Make It Right (2001).) This relatively recent revelation has begun to impact on the collective psyche of the American public.

The public in this country has long been able to repress its worries and concerns that an innocent person might be erroneously convicted and imprisoned for life or even executed, through its unwavering commitment to the principle that the criminal justice system works. In the collective mind of the citizenry, the conviction of an innocent was highly unlikely, if not impossible, because of complete and thorough police investigations, prosecutorial commitments to fairness and justice, competent criminal defense lawyers for all criminal defendants, trial and appellate judges intent on preventing miscarriages of justice, and the unlimited number of appeals and postconviction challenges each convicted person may use to undo his or her conviction and sentence.

That belief in the infallibility of the criminal justice system’s ability to sort out the truly guilty for conviction and sentencing while exonerating the innocent was a myth never supported by empirical evidence. Yet, both inside and outside the criminal justice system, people took solace and gained fortitude from the belief that once a citizen was convicted, the judicial finding of guilt was synonymous with actual guilt under the law. Once that philosophical non sequitur is accepted, regardless of the reason, it is undoubtedly easy for persons from all segments of the community to find reasons to have the criminal justice system emphasize finality over process and efficiency over effectiveness. Letters to the editors often suggest that in death cases appeals should be abolished so that executions can occur immediately after the sentence of death is pronounced. Legislators at both the state and federal level continue to place shorter and shorter time limitations on the ability of criminal defendants in both death and non-death cases to file collateral challenges to their convictions and sentences. Both of these positions are motivated to a great extent by the belief that the system works, convicting only the guilty and freeing the innocent. Perhaps the other remaining justification is that society must endure the wrongful conviction of some innocents, condemning them to death or long periods of incarceration, to be able to convict and punish those who are, in fact, guilty as charged. Neither philosophy comports with the ideals of our nation, such as fairness, justice, and respect for the rights of the individual.

Today, a new perspective exists. It rejects the infallibility of the criminal justice system and embraces the need to reform the system to reduce greatly the likelihood of the conviction of innocents. This perspective will require the scrutiny of all aspects of the criminal justice system, from traditional barriers such as inadequate funding to rethinking the legal and procedural axioms that buttress this nation’s criminal courts. From this new vantage point, many will focus on the corrective processes and procedures that begin after a conviction and sentence occur. Others will examine flaws in the main event itself—the criminal trial—seeking to stop wrongful convictions at their source rather than after they occur.

Opportunities for change calculated to reduce significantly the danger of convicting the innocent are enormous throughout the criminal justice system, both during the trial process and thereafter. Fortunately, the evidence compiled from the DNA exonerations provides an insight into procedures and practices that facilitate the conviction of innocent criminal defendants. Although contrary, at least at a superficial level, to common sense, confessions and eyewitness identifications are often the very evidence that facilitates the conviction of the innocent. Confronted with the eyewitness identification of the accused by a victim or a bystander, a jury is often reluctant to return a not-guilty verdict, even when compelling evidence of innocence exists. Similarly, the prosecution’s presentation of the accused’s confession often creates an impression on the jury that even strong exculpatory evidence cannot overcome.

The reason appears to be the jurors’ strong beliefs that in the context of a criminal trial, eyewitness identifications and confessions must be given a higher probative value than other evidence. One explanation for this is the common belief that the eyewitness normally has no reason to lie and defendants have no reason to admit their guilt unless they truly are guilty. Jurors come into the courtroom with little respect for or appreciation of the concepts of mistaken eyewitness identification and false confession, particularly where the eyewitness identification and false confession are sponsored by the prosecutor as probative evidence.

Although there are numerous reforms suggested to prevent the mistaken identification and the false confession, one that should be given serious consideration is the use of jury instructions to assist jurors in perceiving the risks inherent in eyewitness identifications and false confessions.

For most jurors it is counterintuitive that eyewitness identifications, voiced with certainty by disinterested witnesses, are mistaken. Ironically, most jurors’ own life experiences undoubtedly contain examples of friends, family members, or even the juror who stubbornly remains committed to an erroneous memory or recollection, only to learn months or years later that unrelenting certainty is no guarantee of accuracy and correctness.

Equally counterintuitive is the suggestion that an innocent person would falsely confess to committing the charged crime in the absence of physical torture or threats to life and limb. Here again, most jurors in the course of their everyday lives have seen family members, friends, or even themselves, for a variety of reasons, take the blame for something they did not do because under the circumstances it appeared easier than continuing to deny culpability.

Because these common experiences of the jurors occur outside of the context of the criminal justice system, jurors are often unable to see the parallel between those more mundane situations and the human foibles that generate mistaken eyewitness identifications and false confessions. One method of countering the jurors’ reluctance to question the correctness of either eyewitness identifications or confessions is the cautionary instruction. Because jurors have unrealistic confidence in the two forms of evidence, a cautionary instruction reminds the jury that it must specifically decide whether the confession or eyewitness identification is to be believed, and directs the jurors to the type of factors that may undermine the reliability of the confession or the identification.

Cautionary instructions assist the jury in comprehending the evidence and in making the requisite factual determinations relevant to that evidence. “The trial judge should conduct the trial in such a way as to enhance the jury’s ability to understand the proceedings and to perform its fact-finding function.” ( ABA Standards for Criminal Justice: Special Functions of the Trial Judge, 3d ed. (2000), Standard 6–2.6(b).) Without such cautionary instructions, juries may accept as incontrovertible confessions and eyewitness identifications despite the presentation of factual and expert evidence raising serious questions about the reliability of such evidence in the case to be decided.

For example, a cautionary instruction on false confessions could provide the following guidance to the jury: In determining whether a confession or admission is true, you should consider all the circumstances surrounding the confession or admission, including psychological factors that may have influenced the defendant in making the admission or confession, such as the length of the interrogation; the police tactics employed; whether promises or threats were made or implied; whether the police claims about existing evidence were accurate or exaggerated; and whether the confession or admission, excluding information provided the defendant by the police, contained information only the perpetrator would have known, and personal characteristics of the defendant, including but not limited to age, physical impairment, intoxication, mental capacity, physical condition, and emotional state.

With the new awareness of the very real danger of convicting the innocent, courts and legislatures should no longer conclude that the risk of false confessions and mistaken eyewitness identifications can be met by resorting to the shibboleth that as long as the jury is instructed on the elements of the charge and the elements of any defenses supported by the evidence no cautionary instructions are necessary. The unique circumstances attendant to confessions and eyewitness identifications require the use of such cautionary instructions as an additional measure to reduce the risk of wrongful convictions.


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