Miscarriages of Justice
Summary and Keywords
Miscarriages of justice, also called wrongful convictions and errors of justice (Forst, 2004), have long been a subject of popular interest. Traditional ballads and stories recounted the plight of the poor man facing execution for poaching to feed his family (“Geordie,” Child Ballad #209), the wife or sister who attempts to gain his release by surrendering her virtue to the cruel judge (“In his golden bed at midnight/There she heard the gallows groaning …”), and the outlaws, rebel leaders, and condemned men who told their stories from the scaffold (“Roddy McCorley”). These traditional stories focus on the contrast between good and evil, the implacability of the judge, and the imminence of death, while the theme of injustice is hinted at but never spoken. It is only in the final third of the 20th century that it becomes possible to speak of wrongful conviction as a topic of academic study and to explore it scientifically, trying to determine how often it occurs, and whether it is the result of human error.
This article first provides a brief history of wrongful convictions, beginning with the Salem witch trials, and then turns to the discovery and crisis of forensic evidence in the 20th century. By the end of the 20th century, forensic evidence techniques, from fingerprint identification to hair analysis, to interrogation techniques, had been called into question by the DNA revolution and the Supreme Court’s holding that expert witnesses in federal courts must be able to show the scientific basis for their testimony. Then we will turn to the psychological research that suggests that our current investigative techniques can provide false or misleading results. Causation can be divided into proximate and ultimate causation, and in the latter category, we will describe a social psychological theory which seeks to understand why, for example, it is so often the poor man (or, in the United States, the man of color) who faces execution for a crime he did not commit. Throughout, we will note the role of popular entertainment and news media in establishing a social understanding of wrongful convictions and assumptions as to its causes. We will close with considering three recent true crime documentaries whose success predicts similar efforts down the road.
Keywords: wrongful conviction, miscarriage of justice, Innocence Project, exoneration, Salem witch trials, Dreyfus affair, forensic evidence, expert witness, eyewitness testimony, participatory journalism
Some Important Cases
We can describe the Salem witch trials as the first cases of wrongful conviction in the modern era. Held between February 1692 and May 1693, as a result of which 20 people were executed and five others died in prison, the Essex County witchcraft crisis (Norton, 2002, p. 8) was both similar to, and yet different from, earlier cases, and contemporary doubters were numerous and vocal. As a result, executions ceased following a stay ordered by Massachusetts Governor Sir William Phips in October 1692. Five years later, in January 1697, several major figures in the trial asked publicly for forgiveness (Norton, 2002, p. 10), and in 1711, the Massachusetts legislature reversed the convictions of 22 of the condemned and ordered compensation for them and their families. Finally, nearly three centuries later, in 2001, the accused were formally exonerated by a special act of the Massachusetts legislature. In the meantime, discussion of the Salem witch trials, originally the province of ministers and lawyers, was carried on in the 20th century by historians (Demos, 2008; Norton, 2002) and sociologists (Erickson, 1968), as well as by popular culture, where it had outlived the stern Puritanism of its day. Today the Salem witch trials are portrayed in young adult novels and taught in high school courses. Arthur Miller’s 1953 play The Crucible was so popular that the term “witch hunt” entered the popular lexicon. The play has been adapted for film and television and made into an opera. In Arthur Miller’s telling, it is not God, but fallible human beings, allowing themselves to be caught up in the prevailing mood of fear, who are responsible for the wrongful convictions and executions of innocent people.
Most trials are handled as matters of routine, but occasionally a trial attracts a great deal of attention, sometimes because the community is divided between those who believe in the defendant’s guilt and those who believe in his innocence. By continuing to argue for the defendant’s innocence even after his conviction, supporters may keep the topic of wrongful conviction at the forefront of public opinion. In France, Emile Zola and others proclaimed the innocence of Captain Alfred Dreyfus in his trial for treason in 1896; Zola used the term “miscarriage of justice.”1 In the United States, supporters of such notorious defendants as the Haymarket labor organizers (Chicago, 1884), Leo Frank (Atlanta, 1915), accused anarchists Sacco and Vanzetti (Boston, 1921), and the unfortunate Scottsboro defendants (Alabama, 1931) argued that they were innocent, despite verdicts to the contrary. In 1931, the same year as the Scottsboro trial, the first academic study examining wrongful conviction was published by a Yale law professor named Edwin M. Borchard (Borchard, 1931). He examined newspaper accounts of 65 British and American cases of wrongful conviction and described the types of factors that could cause them, including mistaken eyewitnesses who grow more and more certain of their identifications, and police officers all too willing to believe the witnesses. While Professor Borchard’s book was well-received, it did not inspire others to carry on with his academic inquiry. There matters rested until the DNA revolution of the 1980s and the Daubert trilogy of cases decided by the U.S. Supreme Court in the 1990s.
The Problem of Forensic Evidence
At the dawn of the 20th century, an expert witness played a key role in the 1892 trial and acquittal of Lizzie Borden, a young woman accused of the hatchet murders of her father and step-mother in the family home in Fall River, Massachusetts, in broad daylight. Two hatchets and two axe-handles had been found in the cellar, but a Harvard chemistry professor testified that the bloodstains on these tools were not from human blood, nor did the blades match the wounds on the bodies of the deceased (Brown, 1992, p. 212). The chemist also testified that there was no evidence of poison in the stomachs of the deceased, despite testimony that both had complained to their physician of illness on the day before their deaths. This testimony seriously weakened the prosecutor’s case against 32-year-old Lizzie. The jury acquitted her, although the court of public opinion was not convinced of her innocence. The case inspired a variety of works of both fiction and non-fiction throughout the 20th century.
The use of forensic evidence in criminal investigation dates from the early years of the 20th century. As criminal anthropologists like Cesare Lombroso measured the skulls and ears of convicted criminals in order to describe the types of “criminal man” and “criminal woman” (Rafter, 1992), police departments in the first decade of the 20th century were beginning to use fingerprints as a form of identification. Other techniques, such as the forensic examination of firearms (1925) and handwriting analysis (1930s), were developed in succeeding decades.2 Many other techniques followed, as people began to hope that the term “forensic science” would replace the term “forensic evidence.” These hopes, however, were shattered by the DNA revolution of the 1980s.
Genetic profiling was developed in the 1980s, but it was not widely available until the late 1990s. Meanwhile, the Innocence Project began requesting DNA testing for prison inmates convicted of rape and murder in earlier decades, with the first two exonerations based on DNA evidence in 1989. As of this writing, the Innocence Project reports 350 exonerations based on DNA evidence. An analysis of DNA exonerations (Dwyer, Scheck, & Neufeld, 2000) described types of errors—including mistaken eyewitnesses and faulty forensic evidence—reminiscent of the types of errors described by Borchard (1931) 70 years earlier.
In the 1990s, the U.S. Supreme Court initiated another revolution in forensic evidence. In 1993, in the first of three cases3, the Court ruled that the Frye standard of the admissibility of expert testimony (Frye v. U.S., D.C. Circuit Court of Appeal, 1923) was no longer to be used in the federal courts. Under the Frye standard, an expert is considered qualified to testify if his or her credentials and methodology meet the test of “general acceptance” in that field.4 Under the Daubert standard, an expert must demonstrate the scientific basis for his or her testimony. Imagine a Massachusetts colonial court deciding whether to allow a minister to testify about so-called spectral evidence (testimony from the afflicted about times when she had attended a witches’ gathering with the accused). If the court were to apply the Frye standard, then it would probably admit the evidence, assuming that most 17th-century ministers accepted the validity of such evidence. Were the court to apply the Daubert standard, however, the minister would be required to demonstrate a scientific basis for the claim that spectral evidence was valid before being allowed to testify. The Daubert standard applies in federal courts, but not in state courts, many of whom continue to apply the Frye standard to the admission of expert testimony.
As a result of the Daubert trilogy, challenges to the admission of fingerprint testimony began in federal court in 1999 (Newman, 2001, April 7). Defense lawyers challenged the training and accuracy of fingerprinting experts, as well as introducing evidence that most fingerprint experts have either failed or never taken the main certifying exam (Newman, 2001, April 7). In 2002, a federal district court judge held a Daubert hearing to consider a defense challenge to the introduction of fingerprint identifications by the FBI (Slobodzian, 2002, March 14). The defense expert, described as Britain’s leading fingerprint authority, testified that the scientific basis for fingerprint identification is lacking, although he stated that he did not question the competence or the technique of the FBI’s print examiners. As a result, the judge indicated that he might not allow the FBI to testify as to their fingerprint identification. Ultimately, the judge allowed the identification, but he restricted the FBI’s ability to say that the fingerprints matched those of the defendants to the exclusion of any other persons.
A few years later, the National Academies of Science issued a report (2009) which surveyed the types of forensic evidence techniques available and expressed grave concerns over the lack of scientific evidence supporting most of them. The NAS noted that forensic techniques developed in the medical community (blood typing, DNA analysis) had been subjected to scientific testing, whereas forensic techniques used exclusively by law enforcement authorities (fingerprinting, ballistics, handwriting analysis, hair analysis, blood spatter analysis, etc.) had not. The report also noted the resistance to change evident within the various sectors of the law enforcement community, many of whom expressed faith in their on-the-job training and confidence in their practice. As a result of the 2009 NAS report, in 2015 the FBI admitted that, some two decades after questions had been raised about the testimony given by its hair-and-fiber analysts in cases involving 2,600 convictions and 45 death row cases since 1980, the Bureau was belatedly notifying surviving defendants of the flawed testimony that had contributed to their convictions (Hsu, 2015, April 18). For two decades, the FBI and other law enforcement agencies (see, e.g., Toobin, 2007, May 7) had maintained their faith in hair and fiber analysis, even as DNA testing became accepted as more accurate.5
Thus, in the new century, we find forensic evidence in disarray. Part of the reason for the disarray is, as we have seen, that technological change is disruptive; practitioners resist the idea that their training and practice are outmoded. Another reason is structural; crime labs in many states are viewed as part of law enforcement, rather than, say, the department of public health, and, as a result, crime lab personnel have a strong incentive to make findings supportive of the position of law enforcement, as pointed out by the National Academies of Science (2009). A third reason is an organizational one. Beginning with the Reagan Administration’s War on Drugs and the crack cocaine crisis of the 1980s, state and federal crime labs have been overwhelmed by an increased demand for their services that was not accompanied by an increase in funding. The result was predictable. Periodic crises at FBI crime labs (Thomas & Mills, 1994, Sept. 14; Lawyers Weekly, 2003, April 28; The Washington Post, 2007, November 20; Hsu, 2012, July 11) have demonstrated problems with every aspect of forensic practice mentioned here. At crime labs run by cities (Houston, 2002) and states (West Virginia, 1993; Virginia, 2005; Massachusetts, 2012), major problems have been revealed that had existed for years (Willing, 2006, March 31). In West Virginia (Nyden, 2006, April 2) and in Massachusetts (Harmon, 2012, September 14), for example, chemists whose credentials turn out to have been overstated engaged in so-called “dry-labbing” (issuing reports on items that had not actually been tested). Forensic evidence is in crisis at this time, and it is not clear how the crisis will be resolved.
In addition to forensic evidence, investigators and courts are interested in the testimony of people involved (witnesses, victims, defendants). Eyewitness testimony has attracted the attention of psychologists from the beginning of the 20th century, for example, Hugo Munsterburg’s 1908 classic work On the Witness Stand.
Psychologists have a long tradition of inquiry into questions of memory, perception, and observation, as well as social organization (see, e.g., Haney, Banks, & Zimbardo, 1973). The field has contributed significantly to the study of police investigative techniques, including issues such as detecting deception, why a suspect might make a false confession during interrogation, the suggestibility of eyewitnesses, and why jurors and judges tend to believe eyewitnesses (see, e.g., Cutler, 2011). More generally, psychologists have studied the concept of tunnel vision, also called confirmation bias, which can bias an investigator toward the suspect’s guilt (Leo & Davis, 2010).
Critiques of specific practices in police investigation have emerged. For example, Gary Wells and his colleagues have studied the ways in which a simultaneous lineup may result in the witness’s making a false positive identification of a suspect, and have recommended sequential lineups instead (Wells, Memon, & Penrod, 2006). Elizabeth Loftus has shown that human memory is malleable, and people can become convinced of the truth of something that never happened (Loftus, 2017; Patihis & Loftus, 2016). Loftus also did significant work in the discrediting of the notion of repressed memory (Loftus & Ketcham, 1994; see also Finz, 2003, June 29; Aviv, 2017, June 19). Police interrogation techniques have been studied by researchers like Richard Ofshe and Richard Leo (Ofshe & Leo, 1997), who have shown that false confessions do occur as the result of police interrogation techniques.
Edwin Borchard (1931) listed eyewitness error as a factor in most of the 65 cases he described. Similarly, the Innocence Project identifies eyewitness error as the “greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in more than 70% of convictions overturned through DNA testing nationwide.” The Innocence Project also identifies false confession as affecting one in four cases of wrongful conviction that resulted in exoneration.6 Clearly the psychological research to date raises important questions about the way criminal justice is practiced.
Miscarriages of Justice as a Result of Moral Panics
Moral panic theory (Cohen, 1972; Best & Horiuchi, 1985) developed alongside social construction theory (Spector & Kitsuse, 1977). The theory proposes that, from time to time, people become convinced of the existence of a threat from one or another type of “folk devil” (Cohen, 1972), usually as a result of media coverage of the supposed problem. For example, a moral panic about danger to children in daycare in the 1980s and 1990s (Best, 1990; de Young, 1997; Jenkins, 1998; Victor, 1998; Grometstein, 2008) began in the United States and Canada and spread to Europe and Australia. Similar fears had been expressed in the past, as shown in the “Ballad of Little Sir Hugh” (Child Ballad #155). However, just as real Jews were executed for the supposed murder of little Sir Hugh in the 13th century, so in the 1980s and 1990s, many people went to prison for supposed crimes against children in day care, especially following the well-publicized case of the McMartin Preschool in Los Angeles. When the citizenry becomes convinced of the reality of a new danger posed by dangerous people, police, prosecutors, and judges can become caught up in the moral panic as well. It is perhaps not surprising that people decide that it is better to act than to fail to act in the face of the perceived danger.
Theorizing Wrongful Conviction
Many people believe that wrongful conviction is so rare as to pose a negligible threat to our system of justice. For example, the late Justice Antonin Scalia of the United States Supreme Court wrote in a concurring opinion in 2006 that courts in the United States have an “error rate of .027 percent—or, to put it another way, a success rate of 99.973[%].”7 However, Borchard (1931) and his successors, most notably the National Registry of Exonerations at the University of Michigan School of Law, have established that wrongful convictions for defendants charged with capital offenses occur at more than a negligible rate,8 although the rate for all criminal convictions is presently unknown. Both the National Registry of Exonerations and the Innocence Project continue to study the causes of wrongful convictions in the samples they have accumulated; the Innocence Project lists eyewitness misidentification, incentivized informants, inadequate defense, misapplication of forensic science, false confessions or admissions, and government misconduct as the most common factors. Furthermore, estimates of the rate of wrongful convictions apply only to cases that go to trial. Presently, 95% of all criminal charges in the United States result in guilty pleas, so the charges are not subject to the kind of judicial scrutiny that trials afford. Hence, the rate of wrongful convictions for plea bargains is probably higher than for those that go to trial.
Causation can be thought of in terms of proximate and ultimate causation. Proximate causation is causation near in time to the phenomenon under study, whereas ultimate causation seeks answers at the level of human nature itself. We turn to proximate causation first.
Proximate Causation: Problems of Evidence and Testimony
Finding and punishing the perpetrator of a crime is the goal of any criminal justice system, but the difficulties of identifying and punishing each perpetrator are not always appreciated by the public. Psychologist Dan Simon (2012) reminds us that fewer than half of all felonies are ever reported to the police, and police are able to make an arrest in only one out of five felonies: “Crimes are unlikely to be cleared [by arrest] when they are not witnessed, when the witnesses refuse to cooperate with the police, or when the witnesses cannot provide the necessary information to solve the case” (p. 4). Even murders, where physical evidence in the form of a dead body usually exists, may go unsolved for lack of eyewitness testimony. As a result, cases of wrongful conviction occur only where the police have been able to make an arrest, which is to say, in a fraction of all felonies committed. If it were possible to determine that some percentage of the time, police arrest the wrong suspect,9 then the rate of cases solved will be even lower. This statement has two important implications. The first is that there is enormous pressure on investigators to work with the evidence and testimony they have, since otherwise they may never identify the perpetrator. Second, because of a lack of evidence, the criminal justice system constantly faces the possibility that it will not in fact be able to deliver the promised justice to its citizens.10 These very real constraints on the system’s ability to know when a crime has occurred and to prove it by sufficient evidence, coupled with the limitations on human cognition and perception discussed by Simon (2012), are the proximate cause of wrongful convictions.
Ultimate Causation: Dynamics of Social Hierarchy
People who have been wrongfully convicted are overwhelmingly poor and/or disproportionately members of disfavored groups, such as the Scottsboro defendants (nine young African American men) or Jews (Captain Alfred Dreyfus, Leo Frank). This observation is consistent with the predictions of a theory put forward by social psychologists Jim Sidanius and Felicia Pratto (1999) called Social Dominance Theory. The theory argues that all human societies are structured as systems of group-based social hierarchies (p. 31).
Among other things, the dominant group is characterized by its possession of a disproportionately large share of positive social value, or all those material and symbolic things for which people strive … .[S]ubordinate groups possess a disproportionately large share of negative social value, including such things as low power and status, high-risk and low-power occupations, relatively poor health care, poor food, modest or miserable homes, and severe negative sanctions (e.g., prison and death sentences). (pp. 31–32)
For example, just as African Americans are overrepresented among prison inmates in the U.S., so are the indigenous people of Australia imprisoned at a rate more than 15 times that of nonindigenous people (p. 202). In general, according to Social Dominance Theory, subordinate groups will be the target of the criminal justice system of any country. Furthermore, the theory predicts that the discrimination of the legal system will be directed against subordinate males rather than subordinate females (the Subordinate Male Target Hypothesis; p. 223). The researchers identify five ways in which the legal system of any country operates to discriminate against subordinate groups; these are found so consistently that the researchers call them the five “laws of law” (p. 207); of particular interest to our discussion here are the disproportionate prosecution principle (p. 207) and the tolerance of abuse principle (p. 218). The disproportionate prosecution principles states that “When society’s laws are violated, the level of negative sanction directed against subordinates will be greater than that against dominants, everything else being equal” (p. 207). The researchers review studies from the United States, the Netherlands, Australia, Israel, Sweden, Great Britain, and Canada, in support of this proposition (pp. 209–212). The tolerance of abuse principle states that “The degree of negative sanctions against security forces for abuses of power will tend to be exceedingly small, especially in cases of abuse against subordinates” (p. 218). The researchers cite data about complaints of police use of excessive force in Los Angeles and New York City to support this proposition, as well as Paul Chevigny’s (1995) cross-cultural study of police violence in the nations of the Americas.
Social Dominance Theory, then, predicts that members of subordinate groups are at a higher risk of prosecution than members of dominant groups; it also predicts that abuse of subordinate groups will arouse less disapproval than abuse of dominant group members does. Groups at a higher risk of prosecution are also at higher risk of wrongful conviction. When the system proves to have made a mistake, public opinion will be less outraged in the case of subordinates than of dominants. In support of this last point, we look at the exoneration of Michael Morton of Texas. After serving 25 years for the murder of his wife, the former supermarket manager and family man was freed in 2011 after the Innocence Project represented him in seeking a DNA test of the evidence; the test results pointed to another individual as the murderer. (The implicated man was convicted of the murders of Mrs. Morton and of another woman in a similar killing.) Morton asked the Texas Supreme Court to convene a court of inquiry into the conduct of Ken Anderson, the prosecutor in the original case and more recently a district court judge, for suppression of evidence; most unusually, the court sanctioned the prosecutor-turned-judge, ordering him to serve a ten-day jail sentence and to give up his law license for a period of five years (Anderson also resigned from the bench). The Texas legislature then passed, and the governor signed into law, the Michael Morton Act of 2013, which creates a more open discovery policy, with the goal of removing barriers to accessing evidence. Morton is a white, middle-class man whose case for exoneration aroused public indignation. By contrast, most exonerees are poor and/or people of color; they generally receive nothing other than freedom, and even in states with statutes providing for compensation for the wrongfully convicted, they have difficulty receiving compensation. This sends them back to the job market, where they find themselves obliged to check off “Yes” on employment applications that ask, “Have you ever been convicted of a felony?”
The causes of wrongful conviction, therefore, have to do with the limitations of the criminal justice (CJ) process as operated by human beings and the larger issue of the unequal allocation of social goods.11 The solutions to wrongful conviction, therefore, lie in understanding the ways in which the criminal justice process can be improved in practice,12 as noted earlier, and also by advocacy that seeks to persuade citizens to allocate social goods such as legal representation more fairly.
Thus, in this brief survey, we have touched on a number of factors that may help explain wrongful convictions. Now we turn to the role of the popular media, from which many people get their information about wrongful conviction.
Miscarriages of Justice in Films
Movies and films reflect widespread social views of wrongful conviction. Before the DNA revolution cast doubt on the basic competence of the criminal justice system, one way to view wrongful conviction was to see it as a type of impersonal evil against which good people must strive. To Kill a Mockingbird (directed by Robert Mulligan, 1962) is an example of one man’s lonely, and ultimately unsuccessful, battle for the good. The point-of-view character is defense lawyer Atticus Finch, whose client, Tom Robinson, is a young black man accused of raping a white woman. Atticus presents a heroic defense that persuades the movie audience of his client’s innocence but fails to persuade the small-town jury. Tom is found guilty of the rape and then is killed by a sheriff’s deputy while in custody. Atticus and the other good white people in town must find a way to go on living, despite the failure to defend Tom. By contrast, in The Green Mile (directed by Frank Darabout, 1999), good triumphs over evil, even on death row, where a convict has been wrongfully convicted and sentenced to death. The Green Mile also belongs to the tradition of the outlaw-hero, as does Cool Hand Luke (directed by Stuart Rosenberg, 1967), where the inmate represents Everyman imprisoned by an unjust society.
Other films follow the conventions of the mystery story and present wrongful conviction as something that a bad person can engineer. An example is a 1938 play that was made into two movies in the 1940s (Gaslight, 1940, directed by British film director Thorold Dickinson; and Gaslight, 1944, directed by Hollywood director George Cukor). Another example is the film I Want to Live ! (directed by Robert Wise, 1958), based on the life of Barbara Graham, which suggested that Graham was framed by her male associates, leading to her execution for crimes she did not commit. In these films, the fact that bad people can take advantage of the criminal justice system to protect themselves is not an indictment of the system itself but part of the inexplicable power of evil in general.
Since the DNA revolution of the 1980s, films about wrongful conviction have tended to be critical of the criminal justice system. All but one of the following are based—however loosely—on real cases.
A Cry in the Dark (directed by Fred Schepisi, 1988)—based on the story of Michael and Lindy Chamberlain, accused of the death of their infant in Australia.
In the Name of the Father (directed by Jim Sheridan, 1993)—based on the story of the Guildford Four in Great Britain, who were wrongly accused of setting an IRA bomb in a Guildford pub.
The Hurricane (directed by Norman Jewison, 1999)—based on the story of boxer Rubin “Hurricane” Carter and the efforts of people to free him from prison in New Jersey.
The Life of David Gale (directed by Alan Parker, 2003)—a whodunit challenging the notion that the criminal justice system would not execute an innocent man.
Cherished (directed by Robin Shepperd, 2005)—a British television show based on the story of Angela Cummings, convicted of the death of her three children.
Conviction (directed by Tony Goldwyn, 2010)—based on the story of Kenny Waters. After her brother is convicted of the brutal murder of a woman in the small town of Ayer, Massachusetts, Betty Anne Waters completes high school, college, and law school in order to represent her brother in overturning his conviction.
Documentaries examining cases of wrongful conviction have become increasingly popular. Here are some recent examples:
The case of the West Memphis Three (West Memphis, Arkansas) has been the subject of four documentaries, including three directed by Joe Berlinger and Bruce Sinofsky (Paradise Lost: The Child Murders at Robin Hood Hills, 1996; Paradise Lost 2: Revelations, 2000; and Paradise Lost 3: Purgatory, 2011. West of Memphis (directed by Amy Berg, 2012) was a further attempt to investigate the case.
Capturing the Friedmans (directed by Andrew Jarecki, 2003) was a re-examination of the case against Arnold and Jesse Friedman in the late 1980s on charges of mass child sexual abuse.
After Innocence (directed by Jessica Sanders, 2005) is an American documentary based on the stories of seven men who were exonerated by DNA evidence with the help of the Innocence Project.
Other documentaries about cases of wrongful conviction are discussed in the next section.
News and Investigations
Recent changes in the news media have led to an increased public awareness of wrongful conviction. Starting in the 1990s, cable broadcasting changed the market for news, and the pace of change increased as news delivery moved online. Traditional journalism might be described as reactive: an event happens, and journalists report on it. Today many journalists are taking a more proactive approach, seeking out news, instead of waiting for it to happen. At the same time, the leveling effect of the Internet has changed the relationship between journalist and audience. Today some journalists are inviting readers to (metaphorically) accompany them as they investigate. The development of what might be called “participatory journalism” has brought a new level of public scrutiny to the workings of the criminal justice system as revealed by cases of wrongful conviction.
We will look at three examples of participatory journalism that have had a significant impact on their audiences and thus indicate a likely future direction for this type of journalism (Hesse, 2016, February 8). First, journalists Sarah Koenig and Julie Snyder, both associated with the NPR radio show This American Life, produced a new podcast called Serial. Season one appeared late in 2014 and ran for 12 weekly episodes. In this broadcast, Koenig re-investigated the 1999 murder of a young woman named Hae Min Lee in Baltimore, for which her ex-boyfriend Adnan Syed is still serving a life sentence. The hook was that Koenig broadcast her investigation even as she conducted it; for example, she would do some portion of investigation and then write an episode of her broadcast. Thus, Koenig did not know in advance how the series would turn out. She also left the listener to make up his or her own mind as to the innocence or guilt of Adnan Syed. This gave the listener a sense of peering over the shoulder of the journalist as she interviewed people and looked at records of cell phone tower traffic. Many of the people involved in the original investigation were willing to be interviewed, including the friend of Syed’s who was the prosecution’s chief witness against Syed at the trial. The investigation also uncovered a witness who was never called by the defense.
Serial raised so many questions about the investigation and trials of Syed that in February 2015, six weeks after the end of the series, the Maryland Court of Special Appeals ruled that Syed could appeal his conviction on the grounds of ineffective assistance of counsel.13 On June 30, 2016, a judge set aside Syed’s conviction and granted a new trial on the grounds of ineffective assistance of counsel.14 The impact of the podcast can be shown by the fact that, by February 2016, it had been downloaded 80 million times (Hesse, 2016, February 8).
The second example is an HBO documentary miniseries, The Jinx (directed by Andrew Jarecki, 2015), which explored the unsolved murders of three women suspected of having been killed by Robert Durst. Durst had seen a narrative feature film on the same subject directed by Jarecki (All Good Things, 2010) and contacted him, offering to be interviewed. These interviews were incorporated into the miniseries. A day before the final episode aired, Durst was arrested on first-degree murder charges; in the final episode, Durst mutters to himself what appears to be a confession to all three murders (Hamilton, 2016, December 20). Once again, a popular show resulted in action by criminal justice authorities.
The third example is the true-crime documentary series Making a Murderer, the first season (10 episodes) of which was released by Netflix on December 18, 2015, just a year after the end of the first season of Serial. Filmmakers Laura Ricciardi and Moira Demos became interested in the exoneration of Steven Avery, who lived in the small town of Manitowoc, Wisconsin. Convicted of a brutal assault on a woman in 1985 and sentenced to prison, Avery served 18 years before the Innocence Project succeeded in convincing the court to order a DNA test, which identified a different man as the guilty party. Avery was released in 2003. He returned home and filed a lawsuit against the Manitowoc County Sheriff’s Department, which had investigated the assault for which he had been convicted. In 2005 the filmmakers came to Manitowoc and began interviewing people about the assault case. Then a young woman named Teresa Halbach was murdered, and her body was discovered on the premises of the Avery family’s auto salvage yard. The filmmakers therefore were on hand to film the public parts of the murder investigation. Two years later, in 2007, the sheriff’s department arrested Steven Avery and his nephew Brendan Dassey. The filmmakers interviewed nearly everyone on the defense side, although not the victim’s family or the prosecutor. They were even allowed to film the interrogation of 16-year-old Dassey without an attorney or parent present, and the court proceedings were filmed as well. Both Avery and his nephew were convicted and sentenced to prison. The documentary provides no overall narrative; instead, the case is presented via interviews with the people involved. By the end of episode 10, most viewers were convinced that Avery and Dassey had been framed by the investigators, and that the sheriff’s department was retaliating for the lawsuit filed as a result of the first case against Avery. Most viewers were shocked by the interrogation of Dassey, who was described as mentally “slow” and eager to please. Viewers also found it easy to believe that the investigators were retaliating against Avery for the lawsuit—or else that investigators chose to believe that the DNA test was wrong, rather than believing that their investigation was wrong.
The series’ impact on public opinion was similar to that of Serial, and the conviction of Dassey was overturned by a federal magistrate judge on August 12, 2016, on the grounds that his confession was coerced.15 The public was so incensed by the way the case was investigated that an online petition to the White House demanding that the president pardon Steven Avery gathered more than 500,000 signatures.16 A page on Yelp.com devoted to the law practice of the former prosecutor in the Avery case was the site of scathing comments and was taken down. Netflix built on its success with Making a Murderer by releasing another true crime documentary series on May 19, 2017, The Keepers, described as being “about the unsolved murder 40 to 45 years ago of a compassionate nun named Sister Cathy in Baltimore and the possible reasons for her death and the (probable) cover-up.”17
Thus, it seems fair to conclude that these cases have served to engage a large segment of the public. However, the three productions differ from one another in how educational they are. The Jinx, although based on reality, presents the case of the murderer as mastermind jousting with his pursuers, as in the fictional Silence of the Lambs (directed by Jonathan Demme, 1991). Making a Murderer, brilliant though it is, is limited in its viewpoint, since the victim’s family, police, and prosecutors did not talk to the filmmakers. As a result, the viewers are not offered any other possible causes for the pursuit of Steven Avery, the search for any other possible suspects, or problems with the forensic evidence. In the end, Serial comes across as the most balanced and thoughtful of the three productions. But the limitations of the case-centered approach in all three documentaries were such that there was no attempt to give a wider context to the case at hand. Thus, a viewer is thrown back on his or her own resources to understand the larger significance, if any exists. Certainly, viewers may not be much wiser about the workings of the criminal justice system after watching these films than they were before. Therefore, it is not surprising that issues of causation are reduced to personal motivations. As a teaching tool, these documentaries are less than complete. But as entertainment, they have been very successful.
As noted by The Washington Post, the “lines between the legal system and the entertainment industry, justice[,] and prurience are becoming increasingly fuzzy” (Hesse, 2016, February 8). The reporter noted that, at the recent hearing on Adnan Syed, members of the public seated themselves in the section of the courtroom reserved for the press. The reporter went on to muse: “How does one comprehend a trial that begets a podcast that might beget another trial, in a world in which Internet sleuths on Reddit message boards can dedicate more time to parsing potential clues than a hundred dedicated municipal police departments?” This description would not surprise criminologist Ray Surette (Surette, 2015), who describes the evolution of crime as spectacle to crime as the new “infotainment,” the merger of journalism and entertainment. Surette speculates that future audiences will demand more direct experience of the criminal justice system (2015, p. 255). The new participatory journalism is one way to provide that experience, and thus the criminal justice system will be subjected to more scrutiny than in the past. Whether “Internet sleuths on Reddit message boards” will prove to be more balanced and detached than the police officers whose work they are criticizing, remains to be seen; perhaps we will soon see a documentary on a wrongful conviction that results from citizen journalistic efforts. Certainly, amateur sleuths searching for villains on whom to blame wrongful convictions will not noticeably improve matters.
As we have seen, miscarriages of justice have a long history, and have attracted popular attention from the start. What has changed over time is people’s understanding of what they signify. Prior to the Enlightenment, miscarriages of justice were an example of the misfortunes of life, along with natural disasters, illness, and death. The Salem witch trials of 1692 served as an early example of a new understanding of the human role in wrongful conviction. In the first half of the 20th century, investigators developed a number of new types of forensic evidence, including fingerprint and microscopic hair analysis, and hope grew that more crimes could be solved. By the 1990s, however, doubt had been cast on these forensic techniques by the development of DNA analysis, and by the end of the 20th century it was clear that—pace, Justice Scalia of the U.S. Supreme Court—wrongful convictions are neither rare nor random. Researchers began to apply a scientific approach to wrongful convictions: how often do they occur? What are the causes? Are wrongful convictions the result of spontaneous or induced error (Simon, 2012, pp. 5–6; see note 9)? We looked at two levels of causation, proximate and ultimate. At the level of proximate causation, recent psychological research casts doubt on our human capacity to observe, reason, and remember, and thus raises questions about some venerable legal and investigative techniques like eyewitness identification. At the level of ultimate causation, we discussed Social Dominance Theory (Sidanius & Pratto, 1999), which predicts over-prosecution of subordinate males, and hence a higher risk of wrongful conviction. Throughout our discussion, we noted popular media depictions of society’s understanding of wrongful conviction at the time. We finished by discussing three recent true crime documentaries that demonstrate how the new technology of the Internet and cell phones have combined to enable a form of participatory journalism in which the public looks over the journalist’s shoulder as she uncovers the failings of the criminal justice system. These failings are usually attributed to the incompetence or lack of good faith of the personnel of the CJ system rather than to organizational, social, or even epistemological causes. Thus, scholarly research and popular interest in the subject of miscarriages of justice are traveling on parallel but not intersecting paths.
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(1.) In 1899 Dreyfus was retried and convicted again, but pardoned. In 1906 he received an annulment of his guilty verdict and a medal.
(2.) Captain Dreyfus was originally convicted largely on the basis of testimony by handwriting experts. Zola and other critics heaped scorn on the idea that a person might disguise his handwriting so well that it constituted a “self-forgery” (Gopnik, 2009, September 28).
(3.) Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (U.S. Supreme Court, 1993). The next two cases in the trilogy were General Electric Co. v. Joiner, 522 U.S. 136 (U.S. Supreme Court, 1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (U.S. Supreme Court, 1999).
(4.) Viewers of the film My Cousin Vinnie (directed by Jonathan Lynn, 1992) will recall that Vinnie, a recent law school graduate handling his first trial, asks the court to allow his girlfriend (played by Marisa Tomei), who works as a hairdresser, to testify as an expert witness about tire tracks on the basis of her experience working in the family garage. Before allowing her to testify, the judge questions the proposed expert about her background and experience and then decides that she is competent to testify as an expert. This fictional portrait of an expert witness illustrates the latitude many state court judges have to accept expert testimony from a witness whose main credential is his or her standing in the relevant community of practice, rather than from his or her use of scientific or objective methodology.
(5.) As a result of the 2009 report by the National Academies of Science, in 2013 the Justice Department created a 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors, and defense lawyers called the National Commission on Forensic Science, which issued wide-ranging recommendations before its term expired in early 2017. Attorney General Jeff Sessions then announced his decision not to renew the Commission (Hsu, 2017, April 10). Instead, he planned to appoint a senior forensic advisor and an internal crime department task force.
(7.) Kansas v. Marsh, 548 U.S. 163, 182 (2006), concurring opinion of Scalia, J.
(8.) See, for example, Gross et al. (2014), who estimated that 4.1% of criminal defendants sentenced to death would be exonerated if imprisoned long enough. Gross and his colleagues observe, however, that it is difficult to generalize this figure to the universe of non-death-sentenced defendants, since so many cases are resolved by guilty plea, a much less formal process with little to no review. Simon (2012, p. 4) says, “The rate of false convictions is most likely considerably higher” than the estimate of Gross et al.
(9.) Simon (2012, pp. 5–6) distinguishes between two types of error. Spontaneous errors cannot be attributed to any obvious external cause, for example, an eyewitness reports the wrong name to the police. Induced errors are those which are caused or exacerbated by situational factors, for example, a suggestive lineup. Simon argues (p. 3) that the investigatory phase produces errors which the adjudicatory phase is not well suited to detecting. The research he describes attempts to minimize induced errors.
(10.) In this context, it will be seen that what we call elements of due process (the right against self-incrimination, protections against unreasonable search and seizure, etc.) are the reforms introduced in earlier times to remedy wrongful convictions. See, for example, Knight’s (1998) discussion of the case of Sir Walter Raleigh.
(11.) American courts handle both civil and criminal cases. In general, civil cases are more likely to be brought by members of the dominant group (contracts, torts, intellectual property law), who enjoy higher social status than defendants in criminal cases. As a result, lawyers representing clients in civil cases generally enjoy higher social status than lawyers representing criminal defendants. Also, penalties under civil law are far less punitive than under the criminal law.
(12.) Defense attorney James Doyle recommended (2010) that a wrongful conviction be treated as an organizational accident rather than attaching blame to one or more individuals. He drew on the practice of hospitals when a patient has died (morbidity and mortality conferences; see Kravet, Howell, & Wright, 2006), and the practice of the National Highway and Transportation Safety Board when investigating vehicular crashes. Doyle recommended that representatives of the entire CJ process (police, prosecutors, medical examiners, forensic labs, courts, etc.) be assembled to discuss how to prevent such errors in the future, rather than assigning blame for the errors of the past. The National Institute of Justice (2015) endorsed this approach of treating wrongful convictions as sentinel events.
(13.) Ordinarily, ineffective assistance of counsel is a ground for appeal only where the counsel in question agrees to the argument or where (as in the Serial case) counsel is dead and therefore cannot be defamed by the argument.
(14.) Whether Syed will get a new trial is not yet clear. On June 8, 2017, the Maryland Court of Special Appeals heard arguments in an appeal of the judge’s ruling filed by the state Attorney General (Anderson, 2017, June 8).
(15.) The state of Wisconsin appealed this order, and the appeal was argued before the Seventh Circuit Court of Appeals in February 2017. No decision had been issued at the time of this writing.
(16.) The White House issued a statement noting that the president has no authority to pardon state inmates. As of this writing, a lawyer named Kathleen Zellner is representing Steven Avery’s search for post-conviction relief. On June 14, 2017, Ms. Zellner filed a motion for a new trial in which she declared her belief that the real killer was the victim’s ex-boyfriend, Ryan Hillegas, who took a major role in the search for the victim’s body.