How to Reduce the Rate of False Convictions

Photo by Tim Hufner

You may recall an earlier article I published about Kevin Strickland, a man convicted of first degree murder who has spent over 40 years in prison. There were two pieces of evidence against him:

1. A fingerprint was in another suspect’s car
2. An eyewitness IDed him.

But:

1. Strickland had known the other suspect for years and had been in his car well before the killings.
2. The eyewitness was unable at first to ID Strickland and in fact only decided it was him after she described the killer to a friend who said, “That sounds like Strickland.” In other words, the witness was tainted. She probably made the identification in good faith but succumbed to suggestion, a real problem with eyewitness ID, which is notoriously unreliable.
3. The eyewitness has since recanted.
4. Two people who have confessed to the crime have said Strickland was not involved.

5. His own prosecutor, a woman, after learning of this new evidence, has said that he is “factually innocent” and has asked for him to be freed.

Now, a new tragedy has hit Mr. Strickland. He had hoped to be free in time to see his mother face-to-face in a home and not a penal institution. Alas, his mother died while he was waiting for his freedom.

Mr. Strickland’s case is yet another example of the cruelty of our justice system that convicts a man on the slimmest of evidence and then drags its feet on freeing him when even that paltry evidence has turned out to be unreliable.

Ultimately, though, this problem goes beyond one man. The Innocence Project has estimated that 4 % of prison inmates are in fact innocent. An article on Statista indicates that there are over 2 million — 2.12 million incarcerated individuals in the US. That means that there are eighty thousand (80,000) innocent people languishing in US prisons who are deprived of the most basic elements of freedom: being able to decide what to eat, when to go to sleep and when to wake up, walk on the beach, go outside and look at the moon. See their families. Be parents to their children. Spouses to their partners. Children to their parents.

Because the rate of false convictions is so high, it seems useful to discuss the factors leading to false convictions and how to rectify them.

1. Eyewitness ID is a big factor in wrongful convictions. The reasons are obvious. Crimes often take place quickly. Witnesses may be caught by surprise or be so frightened that memory is impaired by stress. Trans-racial ID is particularly suspect. Even when witness and criminal are the same race, eyewitness ID is often faulty.

In the 1970s, SEVEN witnesses identified a Catholic priest, Father Pagano, as a bank robber known as the gentleman bandit. Both the priest and most of the witnesses were white. One woman cried on the witness stand because she had to testify against a priest. Father Pagano only avoided prison because the real bank robber, who looked a lot like him, came forward because he couldn’t stand to see a priest go to jail.

To reduce the risk of false eyewitness testimony, our justice system could do the following:

a. Allow the use of expert testimony when the only evidence against a suspect is eyewitness identification.

b. Educate juries about the nature of memory and how fallible it can be, even when witnesses are doing their best to be accurate and truthful. Jurors need to know that memories can be altered by suggestion and during the questioning process.

c. For this reason, it is necessary to improve procedures of collecting information from eyewitnesses.

2. Faulty Forensic Science

This issue is actually a big one. One man in Washington, D.C. was falsely convicted of murder because someone from the FBI forensics lab testified that the defendant’s hair was microscopically identical to a sample found at the crime scene. Years later, it turned out that hair and fiber identification are not that accurate and that some technicians in the FBI crime lab were unable to distinguish between dog hair and human hair. Ouch.

In other cases, men were wrongly convicted of sexually abusing young children because the kids were given a throat swab for gonorrhea. When the test can back positive, the men were convicted. Alas, the test was faulty.

A review of the cases of 137 exonerees in which forensic evidence was presented found that “expert” witnesses made unsubstantiated claims. Often, they presented irrelevant evidence but claimed it was relevant. Sometimes, they discounted evidence that would tend to clear the defendant. At other times, some witnesses provided statistics without being able to show how those numbers were obtained.

In Oklahoma, prosecutors continued to use the testimony of a forensic scientist who was supposed to be an expert in DNA evidence even AFTER they had doubts about her reliability.

3. Confessions. Approximately a third of people sentenced to death and later exonerated gave false confessions. Often, the suspects were tired and frightened. They feared being given the death penalty — in capital crimes — and thought a confession would save their lives. Often, the suspects were young or cognitively impaired. Either way, false confessions are a significant factor in wrongful convictions.

4. Police informants. Often, police informants are criminals who want to avoid jail or prison. They have an obvious motive for lying. Possible safeguards include wiring “jailhouse snitches” to eliminate the element of hearsay and giving jurors special instructions on the possible unreliability of such informers.

5. Government misconduct is a broad category that includes a lot of factors. One of the most tragic ones is the failure to disclose exculpatory evidence. A man in Texas served 26 years in prison for murdering his wife because the state failed to disclose two crucial pieces of evidence: 1. A neighbor saw an unfamiliar truck parked in front of the defendant’s home at about the time of the murder. 2. The defendant’s son, a toddler, told police that “A man hurt Mommy” — not “Daddy hurt Mommy,” but “a man.” The toddler’s words suggested that the man was unfamiliar.

Other sources of government misconduct include inflammatory opening and closing arguments and improper witness coaching.

Unfortunately, the extent of government misconduct is unknown because officials refuse to disclose their procedures to researchers.

How can we work to reduce the rate of false convictions? Support the Innocence Project. If you are ever on a jury, try to educate fellow jurors about flaws in eyewitness testimony and forensics. Support candidates who advocate criminal justice reform.

As Americans whose national ethos glorifies freedom, even one innocent prison inmate is too many. Eighty thousand is unconscionable.