There is, apparently, a new thing called Wrongful Conviction Day, as if any day someone is wrongfully convicted isn’t enough. But activists seem to believe such things as proclaiming a day as theirs helps to promote their movement.
Wrongful Conviction Day began as an effort of the Innocence Network, an affiliation of organizations dedicated to providing pro bono legal and investigative services to individuals seeking to prove innocence of crimes for which they have been convicted, working to redress the causes of wrongful convictions, and supporting the exonerated after they are freed. This is the sixth annual day.
Somehow I missed the last five. Oh well. I learned of it this year from a press release from the Center for Prosecutor Integrity, which offered a list of the most prominent causes of wrongful conviction.
The National Registry of Exonerations has identified five factors that are known to contribute to wrongful convictions:
- Perjury or False Accusation – Present in 58% of wrongful conviction cases
- Official Misconduct by prosecutors and law enforcement – 54% of cases
- Mistaken Witness Identification – 28% of cases
- False or Misleading Forensic Evidence – 23% of cases
- False confession – 12% of cases
Underlying these factors is a problem known as “confirmation bias,” in which investigators, prosecutors, and jury members reach a premature and faulty determination of guilt.
This might not be the way I would explain “confirmation bias,” which is to believe that which confirms one’s pre-existing beliefs, to see evidence in the light that supports one’s bias rather than challenges it, to ignore or reject evidence that undermines one’s beliefs so as to remain clear and certain that whatever beliefs one held going in were confirmed going out. But that’s just me.
Each of the failings noted above are certainly real and huge. And then there are a million other, smaller, individualized reasons that manifest on a case by case basis, from a judge’s wayward glance toward the jury at the testimony of a defense witness to overruling the objection to an accusers conclusory assertion of guilt.
There is no magic way to avoid wrongful convictions. The system in which we’ve placed out trust is dependent on human beings, and we are a flawed species no matter how hard we try or sincere our intentions. It’s impossible to explain to anyone who has never tried a case the myriad influences, choices, reactions, that impact the outcome.
From the outside, a trial looks almost routine, a seamless flow of procedure that replicates itself in case after case. From the inside, it’s a million tiny decisions, a never-ending battle of judgment calls that could aid or hurt the end results, but without any way of weighing the consequence of any individual wrong tactical choice.
One of the themes here is the importance of due process, an overarching phrase that covers the many aspects of the right to notice, preparation and the ability to be heard and effectively challenge accusations. Contrary to what so many try to claim, even reliance on due process is flawed. It merely offers the opportunity to mount a fair challenge to accusations, but opportunity can be squandered.
But even when every opportunity is seized, it may still not be enough to prevent a wrongful conviction. There is one critical thing that’s missing from the Top Five listicle above: these reflect the causes that produce exoneration, but these are not the sole reasons for wrongful convictions. Sometimes there is no hook, no clear cause, no simple wrong, that results in the conviction of an innocent person. Sometimes, an innocent person is convicted for no better reason than a fair presentation of evidence of guilt and lack of capacity to prove he’s not guilty.
Wrongful conviction happens, and there may be no good reason for it, but still it happens. Does one say “Happy Wrongful Conviction Day”? Certainly not for the person wrongfully convicted.