Wrongful Rights

Andrew E. Taslitz is a professor of law at the Howard University School of Law in Washington, D.C., and chair of the Criminal Justice magazine editorial board. He is also a member of the ABA’s Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process, serving on that committee as a liaison for the Committee on Race and Racism. Additionally, he recently served as the Criminal Justice Section’s representative at the American Judicature Society’s National Conference on Preventing the Conviction of Innocent Persons. Finally, he serves as the special editor of this symposium on wrongful convictions.

Americans’ confidence in the fairness of their criminal justice system has lately suffered some serious blows. The popular media once fed the public primarily on images of brutal criminals freed by soft-on-crime judges. (See Ray Surette, Media, Crime, and Criminal Justice: Images and Realities 45 (2d ed. 1998) (In "[television] shows focused on law enforcement, the courts are often alluded to as soft-on-crime, easy-on-criminals, due-process-laden institutions that release the obviously guilty and dangerous.") But competing images of men convicted of crimes they did not commit also now fill television shows, novels, and news magazines. (See, e.g., Donald Dripps, About Guilt And Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure 175 (2003) ("A continuing stream of high-profile cases of wrongful conviction floods the newspapers.").) Best-selling novelist Scott Turow’s latest book, Reversible Errors, explores an inmate apparently in just such a position, ensnared in a deeply flawed justice system. A successful play, The Exonerated, recounts the true tales of innocent men who spent years battling for their lives on death row. National news magazines, such as Time and Newsweek, recently ran extensive stories about the causes of wrongful convictions, stories prompted by new evidence calling into question the reliability of the convictions of several young men—some of whom spent more than a decade in prison—for the brutal rape of a woman in New York City in the infamous "Central Park Jogger" case. (See Transcript, National Public Radio, Talk of the Nation: The Concept of False Confessions and Its Relevance in the Central Park Jogger Case (December 20, 2002).) That case prompted similar stories on national nightly news programs and television news magazines, like Ted Koppel’s Nightline.

I am a former prosecutor, and, as I am sure is true of most prosecutors, not once did I help to convict someone whose guilt I doubted. I was, therefore, initially skeptical about the media’s coverage of the wrongful convictions issue. I still believe that the vast majority of those convicted because of my efforts were guilty as charged. But the accumulating evidence examined by the media suggests that my confidence in my near-infallibility was misplaced. There is a significant chance that at least a few of those suspects whom I prosecuted were entirely innocent. Furthermore, if they were innocent, then some guilty, occasionally violent, offenders remained unpunished and free to prey upon the community. I have found these plausible observations deeply disturbing. Therefore, I have begun to join the many other practicing lawyers, academics, victims’ advocates, and social scientists who are energetically seeking ways to further improve our criminal justice system’s accuracy. I approach that task with a passion that will be evident in this introductory essay. But my passion is more that of a prosecutor with a zeal for justice and public safety than of a defense lawyer with a zeal for battle against an overweening state. Both sorts of passions—those of the defense and of the prosecution—lead to the same result: a commitment to a better system. The media’s ever-wider coverage of wrongful convictions is thus fully justified, a prod for the rest of us to get to work.

The availability of a new forensic technology—DNA evidence—and its dramatic implications in capital murder cases has prompted much of this media attention. Enough of those felons waiting in line for execution have been exonerated by DNA evidence to awaken a previously slumbering media and to grab the attention of a formerly complacent public. As of October 2000, there had been 76 DNA exonerations in the United States, 54 of which happened in just the preceding four years; that number has risen to 123 DNA exonerations by February 2003. (See Barry Scheck and Peter Neufeld, DNA and Innocence Scholarship, in Wrongly Convicted: Perspectives on Failed Justice 241, 241 (Saundra D. Westervelt and John A. Humphrey eds., 2001) [hereinafter Wrongly Convicted]; www.innocenceproject.com (last visited Feb. 18, 2003).) A modestly popular paperback book, Actual Innocence (2000), by Barry Scheck, Peter Neufeld, and Jim Dwyer, told the stories of many of these exonerations and sought preliminarily to identify the causes of the mistakes. The authors also helped to found Innocence Projects at numerous law schools, projects designed to identify wrongly convicted inmates and offer them the benefit of DNA technology and other investigatory techniques in an effort to prove their innocence. These projects—which are additionally starting to promote law reform—have also drawn the media’s eye. (See generally Justin Brooks et al., The Hurricane Meets the Paper Chase: Innocence Projects’ New Emerging Role in Clinical Legal Education, in The Criminal Justice Institute of Harvard Law School, Wrongful Convictions: A Call to Action 655 (2002).) American attitudes toward the trustworthiness of the justice system have changed so dramatically that 94 percent of those surveyed in a July 2000 Harris poll agreed that "even innocent people are sometimes convicted of murder." In this same poll, the average estimate, when persons were asked, "For every one hundred people convicted of murder, how many would you guess are actually innocent?" was 13. (Samuel R. Gross and Phoebe C. Ellsworth, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century, in America’s Death Penalty: Beyond Repair? 7, 30 (Stephen P. Garvey ed., 2003) [hereinafter Beyond Repair?].)

DNA evidence is not available in most capital cases, however, but the systemic flaws revealed by the DNA cases have apparently made the public and politicians more open to other sorts of proof of innocence. (See Dripps, supra, at 175) ("In a nationwide sample of more than twenty thousand . . . [DNA] tests, a quarter of the conclusive results exonerated the suspect. There is little reason to believe that the police do better in cases without DNA evidence.").) The most notorious such case is that of former death row inmate Anthony Porter, who came within 48 hours of his scheduled execution date before being exonerated. (See Report of the [Illinois] Governor’s Commission on Capital Punishment 1 (April 2002).) Startlingly, Porter’s innocence was shown by an investigation conducted by journalism students, who obtained a confession from the real murderer. (Id.) Two commentators summarized the public response this way: "If a bunch of college kids could find the truth when the legal establishment had been unable or unwilling to do so, that was a problem worth worrying about." (Gross and Ellsworth, supra, at 29.) Illinois’ Governor George H. Ryan agreed, declaring a moratorium on capital punishment in that state as of January 31, 2000. (See Commission Report, supra, at 1.) Several other states responded with moratoria of their own or by launching studies of their capital punishment case procedures. (Id.) Governor Ryan appointed a Commission on March 9, 2000, to advise him on how to improve the "just, fair and accurate" prosecution of Illinois death penalty cases. (Id.) That report was completed in April of 2002 and included a host of recommended changes throughout the death system, only a small portion of which focused on the wider and more effective use of DNA. Meanwhile, a national debate on wrongful convictions, especially in death cases, was sparked at both the state and federal levels. The ABA’s president began her 2000 term by calling for a moratorium on executions "until fairness can be assured" (Margaret Graham Tebo, Closing Argument: Barnett Supports Bill Seeking Death Penalty Inquiry, 87 A.B.A. J. 86 (October 2001).) The Senate Judiciary Committee embraced the Innocence Protection Act, ensuring eligible federal and state inmates access to DNA testing to establish their innocence and attempting to improve the quality of legal representation in capital cases. (See generally Office of Congressman William D. Delahunt, Innocence Protection Act: Selected Materials.) The House of Representatives has yet to follow suit. Meanwhile, Governor Ryan re-entered the spotlight just this past January 2003, by commuting the death sentences of 167 people to life in prison as one of his last acts before leaving office. (See Robert Pierre and Kari Lyderson, Illinois Death Row Emptied, Wash. Post., A1, A11, January 12, 2003.) Ryan concluded that the capital punishment system was "haunted by the demons of error." (Id. at A1.)

If death penalty litigation is what has brought this issue onto the national radar screen, the results of inquiries into the causes of capital case error suggest that similar causes are likely at work in noncapital cases, at least for serious crimes for which the police face intense political pressure for a resolution. (See Michael L. Radelet, Wrongful Convictions of the Innocent, 86 Judicature 67, 68 (2002) (explaining forces that may make capital cases more, not less, vulnerable to error than other cases—forces that logically should be at work, if not to the same degree, in other serious felony cases, particularly those covered by the media).) The causes of error are many but can roughly be divided, from perusing the many commentaries on the question, into three broad groups: intentional police officer or laboratory fraud, sloppy police work and poor forensics, and systemic causes at work even when all parties are both honest and careful. (See generally Wrongly Convicted, supra; Beyond Repair?, supra.) Intentional frame-ups are in some ways the least interesting, and I will have little to say about them. Intentional wrongdoing certainly requires greater watchfulness, greater certainty of capture and punishment, and better ethical training of both officers and lab technicians. But if fraud and perjury were the only problems at work, mistakes could be seen as isolated wrongs done by a few bad apples. What research is available suggests that the causes of error are more widespread and arise even in the daily struggle of the many honest people involved in the criminal justice process. (See generally Symposium, Wrongful Convictions of the Innocent, 86 Judicature 63–121 (2002).)

But honesty does not ensure quality. Several years of investigation in numerous jurisdictions throughout the nation have made the old story of convicting the innocent as a remote, hypothetical possibility increasingly less plausible:

Over the last few years an alternate script has emerged and gained strength. Stories of capital defense lawyers who hardly spoke to their clients before trial, who were later suspended or disbarred, who dozed through the trial or showed up drunk are common. . . . Stories of prosecutors who failed to follow up on plausible leads on other suspects once they had them in custody, who relied on obviously perjured testimony from snitches guaranteed immunity, or who concealed crucial evidence are also widespread, and they raise serious doubts about the accuracy of the criminal justice system’s identification of the truly guilty. The new story is one of a system full of blunders and deception, a bureaucracy hustling people toward death row without proper concern for whether the right person has been
condemned.

(Gross and Ellsworth, supra, at 28.)

Even careful, concerned police and prosecutors can, however, unknowingly contribute to error. New empirical evidence is accumulating that suggests that tried-and-true methods for police lineup administration raise an unacceptable risk of misidentification; that standard police interrogation methods can lead the innocent to confess; and that long-accepted "scientific" forensic methods for identifying the guilty—such as by fingerprint identification or handwriting analysis—are seriously flawed. (See Richard Leo and Richard Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429 (1998); Gary Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 L. & Human Beh. (1998); Simon Cole, Mistaken Impressions, Cal. Lawyer 47, 51 (June 2001) (doubts about fingerprinting accuracy); D. Michael Risinger and Michael J. Saks, Science and Nonscience in the Courts; Daubert Meets Handwriting Identification Expertise, 82 Iowa L. Rev. 21 (1996).) Moreover, a mistake at one point of an investigation can compound errors at later points. For example, an officer inadvertently obtaining a false confession may convey subconscious minimal clues to witnesses that lead them wrongly to identify the confessor as the evildoer. (Cf. George Castelle and Elizabeth Loftus, Misinformation and Wrongful Convictions, in Wrongly Convicted, supra, at 17, 24, 29–31 (on the dangers of "cross-contamination" of evidence, compounding the risk of convicting the innocent.) Well-trained, hardworking, but misguided police, forensic technicians, and prosecutors can do just as much damage as their colleagues who are fraudulent or incompetent. (Cf. John A. Humphrey and Sandra D. Westervelt, Introduction, in Wrongly Convicted, supra, at 1, 10 ("Wrongful convictions result from intentional abuses and unintentional mistakes alike").)

The size of the problem of convicting the innocent is hard to estimate and is subject to great debate. But in a system as large as ours, even a very small error rate can mean the conviction of many thousands of innocent persons each year. (See C. Ronald Huff, Wrongful Conviction: Causes and Public Policy Issues, 18:1 Crim. Just. 14 (Spring 2003).) Furthermore, "wrongful" convictions can fairly be understood, argue several commentators, as including those obtained by unjust methods, even if the result is convicting the guilty. (See Humphrey and Westervelt, Introduction, supra, at 7.) Thus, few people would likely support convictions obtained by torture, even if the right man thereby confessed, although Professor Alan Dershowitz and others have, it should be noted, argued that even torture may make sense to avert an impending terrorist disaster. (See Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge, 131–63 (2002).) Still, even Dershowitz would agree that torture, and many other unjust investigative techniques, are generally unacceptable, even to take the guilty off the street. Although this symposium and public outrage generally focus on mistaken convictions, it is humbling to remember that the problem of wrongful convictions is likely far larger than it seems if we include "unjust" convictions of the guilty in our wrongfulness case body count. The problems are significant and call for serious and sustained efforts to do better.

The American Judicature Society (AJS) has entered the fray, trying to do just that, via an action conference convened in mid-January 2003 to educate policymakers and politicos on the causes of, and cures for, wrongful convictions. (See American Judicature Society, Agenda, National Conference on Preventing the Conviction of Innocent Persons.) AJS also devoted its October 2002 issue of its respected publication, Judicature, to further this effort. (See Wrongful Convictions of the Innocent, 86 Judicature (2002).) The ABA has sought to broaden this campaign further, both through this symposium issue of Criminal Justice and through the creation of an ABA Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process, cochaired by former Criminal Justice Section Council Chair Myrna Raeder and Case Western Reserve law professor Paul Giannelli. (See "CJS Ad Hoc Innocence Committee," this issue, at 62.) The committee’s task included identifying the quickest, most effective steps that can be taken to correct some of the worst weaknesses of the current system.

Why, however, have we reached this stage? Why have these sources of error been ignored for so long? These questions are puzzling because our Constitution’s Bill of Rights is replete with procedural protections meant in part to avoid just these sorts of mistakes. Thus the Constitution, as interpreted by the courts, guarantees rights to the effective assistance of counsel, to freedom from coerced or compelled incrimination, to the opportunity for effective cross-examination and to produce witnesses in your favor, and to the potentially sweeping guarantee of due process, that is, of fundamental fairness in criminal trials. (See U.S. Const. amends. V, VI, XIV.) These rights are widely understood as partly serving to reveal police and prosecutorial fraud and negligence, to promote judicial reliance on trustworthy evidence, and to keep fact finders fully informed of the risks of error. (But see Dripps, supra, at XV (conceding that "[t]he Bill of Rights criminal-procedure protections are . . . partially concerned with preventing . . . factual errors," but arguing that they are even more concerned with preventing tyrannical government.).) Yet these rights have failed to achieve these lofty goals in too many cases. Why?

The answer, I will suggest, though I do not claim to prove, is that American criminal procedural rights in action inevitably promote wrongs. What I mean by "rights in action" is the optimistic way in which rights are often practiced and understood in good faith by our courts, our police, and our prosecutors. This conception of rights is only occasionally made express and is not consistently followed by criminal justice system participants. But this conception is sufficiently widespread to spell trouble. These wrongful rights, I suggest here, have at least four characteristics that, when combined, too often lead courts to undervalue truth as a primary goal of the criminal justice system.

Obsession with "wrongful" police action. Truth discovery—who did what to whom with what state of mind—is not the only goal of a criminal trial. (See Mirjan Damaska, Truth in Adjudication, 49 Hastings L.J. 289, 301, 305 (1997).) For example, the Fourth Amendment exclusionary rule deprives jurors of truthful, probative evidence of a suspect’s guilt when the evidence is wrongly seized. That exclusion is meant to deter further unreasonable searches and seizures by the police. (See Andrew E. Taslitz and Margaret L. Paris, Constitutional Criminal Procedure (1997).) Some commentators decry precisely this state of affairs, bemoaning the exclusionary rule’s undermining of the trial’s truth-discovery function. (See Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L. Rev. 363.) Yet these same commentators raise little, if any, objection to legal doctrines that undermine the truth-quest in a way that works against the plausibly innocent suspect. These doctrines can operate subtly and in contradiction to the United States Supreme Court’s purported paens to embracing truth-discovery as essential to a fair criminal trial. (See, e.g., Williams v. Florida, 399 U.S. 78, 82 (1970).)

One source of the under-valuing of truth when factual innocence is in question is those doctrines that exclude untrustworthy evidence only if its unreliability stems from police action. But evidence can be unreliable even when it is created independently of police coercion or carelessness.

Thus, the High Court rejected the defendant’s argument in Colorado v. Connelly, 479 U.S. 157 (1986), that due process required exclusion of his confession because it was compelled by "command hallucinations" and the "voice of God." Connelly, a chronic schizophrenic, had approached the police, saying he wanted to confess to a murder. The officer promptly Mirandized Connelly, who waived his rights, then confessed to a detective. The detective did not then suspect that Connelly was mentally ill. State courts, relying on psychiatric testimony offered by Connelly about his mental condition, found his confession to be involuntary and therefore suppressed it.

The Supreme Court reversed, relying on the absence of police exploitation of a known suspect vulnerability and police reticence to use any coercive interrogation techniques. (See Connelly, 479 U.S. 165-67, 170–71.) The Court explained that Connelly’s statement

might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum, and not by the Due Process Clause of the Fourteenth Amendment. "The aim of the requirement of due process is not to exclude presumptively unreliable evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false." . . . [C]oercive police activity is not "voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.

(Id. at 167.)

Connelly is best understood as not altering the importance of the risk of unreliability as part of due process analysis. (See Welsh White, Miranda’s Waning Protections: Police Interrogation Practices After Dickerson 198–99 (2001).) But where that risk is not the product of police pressure, the Court is thoroughly unconcerned with evidence’s "presumptively unreliable" nature, a presumption fairly at work where a confession stems from hallucinations and long-standing mental illness. The Connelly result may seem to be dictated by the Fourteenth Amendment’s state action requirement, but that appearance is false. The Court could easily treat the trial judge’s act of admitting an unreliable confession into evidence as ample state action, a conclusion consistent with some of the Court’s precedent outside the criminal procedure context. (See Shelley v. Kraemer, 334 U.S. 1 (1948) (judicial enforcement of privately agreed upon racially discriminatory covenants constituted state action for purposes of the Fourteenth Amendment).)

Even where flawed evidence is indeed the product of state action, the courts still implicitly insist that such action must in some sense be "wrongful," or the evidence will not be suppressed despite its untrustworthiness.

Perhaps the most salient example of this wrongfulness requirement is the Court’s doctrine concerning the due process regulation of lineups. An out-of-court identification will be suppressed as fundamentally unfair if, and only if, the process was so unnecessarily suggestive as to create a very substantial likelihood of misidentification. (See Taslitz and Paris, supra, at 722.) That means that untrustworthy lineup or photo identifications may be admitted despite the risks of error if the suggestive procedure was "necessary." Yet, by "necessary," the Court means something like "urgent" or even "helpful in minimizing expense and time-consumption" rather than meaning "unavoidable." (See Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup, 42 Hastings L.J. 15, 97–98 (1990).) Thus a clearly suggestive one-person showup of a handcuffed African-American suspect surrounded by numerous white police officers in an ailing victim’s hospital room was permitted where the victim seemed near death. (See Stovall v. Denno, 388 U.S. 293 (1967).) Similarly, the Court concluded that using photo arrays, instead of some other less suggestive identification procedure, one day after a gunpoint robbery, was not "unnecessarily" suggestive, given the state’s great need for the evidence:

A serious felony had been committed. The perpetrators were still at large. The inconclusive clues which law enforcement officials possessed led to Andrews and Simmons. It was essential for the FBI agents swiftly to determine whether they were on the right track, so that they could properly deploy their forces in Chicago and, if necessary, alert officials in other cities.

(Simmons v. United States, 388 U.S. 293 (1967) (emphasis added).)

The state’s need for swift action to protect the public from imminent danger should sensibly be recognized as often overriding competing concerns in any sound system of justice. But when the need is less pressing, and when the sort of police action involved raises a risk of convicting the innocent, too-flexible notions of "necessity," such as the police’s needing to confirm that they are "on the right track," can be dangerous, especially given recent empirical data showing the unreliability of eyewitness identifications and the significant distorting effects of even the smallest of flaws in an identification procedure. (See Taslitz, Does the Cold Nose Know?, supra, at 977–98) (cautioning against reading Simmons too broadly, thereby making a mockery of the Court’s insistence that reliability is the "linchpin" of due process identification procedure analysis).)

Diminished concern for pretrial accuracy. The Court also undervalues truth when it limits its most enthusiastic search for accuracy to procedures used at trial. The Court has, of course, recognized that flawed pretrial procedures, such as unnecessarily suggestive lineups, can infect later identifications made by the witness at trial. (See Taslitz and Paris, supra, at 722–24.) Nevertheless, the Court often pays too little attention to the adequacy of the pretrial fact-finding processes used to determine whether, for example, a lineup was too suggestive or a confession coerced in the first place.

Hearings to suppress confessions inevitably involve credibility disputes between the suspect and the police, yet judges invariably believe the police, even though empirical data offer strong evidence that these credibility determinations are often wrong. (White, supra, at 192). Moreover, even where there is no credibility conflict, it is hard to re-create in a courtroom subtleties in the interrogator’s conduct—"including the loudness of his voice, the persistence of his questioning, his physical proximity to the suspect"—or in the suspect’s reaction, including "signs of fear, resignation, or weariness, as well as other factors relating to ‘police overbearing that might not be revealed in dry testimony.’" (Id. (quoting in part Paul Cassell, Miranda’s Social Costs: An Empirical Reassessment, 90 Nw. U. L. Rev. 387, 488 (1996).) Requiring the videotaping of all interrogations, subject to only a few exceptions in cases of extreme need, would help to improve suppression judges’ abilities to make accurate credibility assessments and correct determinations of the coercive impact of interrogations. (White, supra, at 190–95.) However, all interrogation efforts in a case must be taped, not merely the ultimate confession, as the New York Times recently explained:

By the time five teenage suspects gave the videotaped confessions that helped convict them in the 1989 rape of the Central Park jogger, they had been through hours of unrecorded interrogation. . . . [T]he exoneration of the young men begs for reforming the way suspects are led to rehearsed statements of guilt.

According to the Innocence Project at the Cardozo School of Law at Yeshiva University, 23 percent of the people who are exonerated after conviction turn out to have falsely confessed to the crime. Many of these confessions were taped and played as compelling evidence to a jury. As the jogger case and other reversals demonstrate, innocent people can be led into confessions. Their questioners—wittingly or not—also often provide them with details that would seem to be known only to the real criminal.

(Editorial, Crime, False Confessions, and Videotape, N.Y. Times, A24, January 20, 2003.).

Errors in the suppression hearing can, The Times continued, not merely ruin innocent suspects’ lives but endanger the public’s safety:

Beyond the injustice of punishing the wrong people, false admissions of guilt allow the real culprits to remain free to commit more crimes; as did Matias Reyes, who raped four other women, killing one of them, after he attacked the jogger in Central Park. . . .

[T]here is no real excuse for not acting. By videotaping every minute of interrogations, the police would help protect themselves against charges of coercion, improve the integrity of confessions, and plug a gaping hole in the system.

(Id.)

Similar laxity about the quality of suppression hearing fact-finding processes plagues other aspects of the system as well. Most notably, much criticism has been directed at police and prosecutorial reliance on informants. The problems with informants can be many: They can literally be manufactured by the police, who tell them what to say; they can testify falsely because of some undisclosed but real or simply hoped-for benefit from the prosecution; or they can be mentally deranged. (See, e.g., Clifford Zimmerman, From the Jailhouse to the Courthouse: The Role of Informants in Wrongful Convictions, in Wrongly Convicted: Perspectives on Failed Justice 55 (2001); see generally Robert Bloom, Ratting: The Use And Abuse of Informants in the American Justice System (2002).) Informants’ testimony may lead police and prosecutors to ignore other leads or to play down or ignore contradictory evidence. (See Zimmerman, supra, at 68). Triers of fact tend to believe in informants, whose stories are difficult to undermine unless they recant. (See id.) Proving lies by informants or their police handlers, or the more frequent incompetence of such handlers in inadvertently molding informant testimony, is centrally important if pretrial screening devices for such testimony—as are suggested later in this symposium—are to work. (See Robert M. Bloom, Jailhouse Informants, 18:2 Crim. Just. 21 (Spring 2003); see generally Bloom, Ratting, supra.) Commentators have suggested a wide range of solutions, including a duty imposed on police and prosecutors to investigate informant background and to disclose the results to the defense. Such disclosure would extend to the informant’s criminal record, prior testimony as an informant, handler interview notes about the informant, how he or she came to the handler’s attention, and whether he or she received any monetary benefits or express or implied promises of leniency. (See Clifford Zimmerman, Back from the Courthouse: Corrective Measures to Address the Role of Informants in Wrongful Convictions, in Wrongly Convicted: Perspectives on Failed Justice 199, 205–10 (Saundra D. Westervelt and John Humphrey eds., 2001).) Other analysts have recommended videotaping informant conversations with the police, or rejected any use of informants absent significant corroboration of their stories. (See id. at 205–10.) Still other thinkers would go beyond improving pretrial fact-finding processes to reducing the incentives for informant or police officer lies or sloppiness, such as by eliminating all rewards for informants’ tips and treating informants as government agents. (See id. at 210–16.) Further protections of fact-finding accuracy at trial as a backup for the possible failure of pretrial screening mechanisms have also been recommended, for example, cautionary jury instructions and expert testimony concerning the causes of informant unreliability. (See id. at 205–16.)

Minimizing systemic thinking. The Court further undervalues truth by too often adopting an atomistic rather than a systemic constitutional analysis. By this I mean that the Court tends to explore evidentiary reliability questions on a case-by-case basis, treating each case as unique and in isolation from arguably similar cases. (Cf. Illinois v. Gates, 462 U.S. 213 (1983) (the reliability of informants’ tips can properly be judged only via a flexible totality of the circumstances test).) The Court’s frequent preference for multifactor balancing tests also expands trial judges’ discretion to treat facially similar cases as if they are different. (Cf. Jerold H. Israel, Free-Standing Due Process and Criminal Procedure, 45 St. Louis U. L.J. 303, 420–32 (2001) (the Court’s modern due process analysis often uses multifactor balancing that is deferential to the state in criminal cases, but the precedent is so ambiguous as to be consistent with a wide variety of substantially different approaches); Taslitz and Paris, supra, at 349–52, 364–75, 645–51, 97–102, 665–70, 722–24, 754–61 (summarizing the Court’s frequent use of complex, multifactor, case-specific balancing tests in constitutional criminal procedure cases under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, tests that are generally highly deferential to the often seemingly inconsistent findings and conclusions of the trial judges).) The result is a failure to see patterns that systematically operate to raise the average risk of mistaken convictions.

Confessions once again offer a fruitful example. Empirical research demonstrates that the risk of false confessions is significantly heightened in five circumstances. (See Andrew E. Taslitz, Book Review, Miranda’s Protections, 17:3 Crim. J. 57, 58 (Fall 2002).) Professor Welsh White has therefore recommended five per se or nearly per se rules: (1) be reluctant to admit confessions by the mentally handicapped, even where the police were unaware of the suspect’s vulnerability; (2) automatically deem involuntary any confession resulting from more than six hours of questioning; (3) automatically exclude any confession where the interrogator should be aware that either the suspect or a reasonable person in the suspect’s position would perceive the officer’s statement as expressing the likelihood that the suspect will receive leniency or avoid adverse consequences if only he or she will confess; (4) prohibit confessions stemming from threats of adverse consequences to a friend or loved one; and (5) flatly bar tactics likely to suggest to the suspect that the evidence against him or her is so overwhelming that continued resistance would be futile. (See id. at 58–59.) Under White’s approach, the risk of mistaken acquittals might rise, for a confession obtained after seven (rather than six) hours of interrogation or from a mentally ill suspect or one bribed or threatened might nevertheless be true in an individual case. But the risk of mistaken convictions based upon false confessions, that is, the average error rate for guilty verdicts generated by the entire justice system based upon current systemic practices, should fall significantly.

Miranda v. Arizona, 384 U.S. 436 (1966), of course, did take a systemic view of confessions and use per se rules—required warnings and a right to counsel during interrogation—to control police tactics. As Professor White has explained, however, Miranda was designed more to prevent even subtle compulsion to confess, undermining human dignity, than to protect against the risk of false convictions. (See White, supra, at 116–24, 194–95; see also Taslitz and Paris, supra, at 637–39 (on Miranda and human dignity).) In any event, argue many commentators, Miranda has become a mere piece of "stationhouse furniture," a rote set of warnings that police have learned to circumvent or to present to suspects in a fashion that minimizes their impact. (See White, supra, at 76–101 (outlining officers’ strategies for evading Miranda or minimizing its impact); Lawrence Friedman, Crime and Punishment in American History, 304 (1993) (Miranda as "stationhouse furniture").) Furthermore, Miranda has been watered down by later precedent. (See Mark Kozlowski, The Myth of the Imperial Judiciary 142–44 (2003).) Even more importantly, once suspects are warned and their Miranda rights waived, Miranda says nothing about how police must conduct suspect interrogations. That "how" question is governed by due process, and due process in this area, as in many others, remains an individualized assessment based upon vague and flexible multifactor balancing tests. (See White, supra, at 39–48, 116–24.)

The Court also fails to think systemically when it bases its decisions upon assumed (rather than proven) systemic realities that are, in fact, false. Much as early twentieth century economists assumed a world of perfect competition, zero transaction costs, and perfect information that made markets efficient and recessions impossible (see Charles Wolf, Jr., Markets or Government: Choosing Between Imperfect Alternatives 21–23, 39–40, 109–10 (2d ed. 1994); Cass R. Sunstein, Free Markets and Social Justice 4–7 (1997) (summarizing some of the flawed assumptions of traditional free market theory), so does the Court assume that the battle of equals in the adversary system will yield perfect justice. (Cf. Andrew E. Taslitz, Rape and the Culture of the Courtroom 103–32 (1999) (assumptions and flaws of adversarial system, as illustrated in rape cases).) Yet neither the Court’s rulings nor political realities have created the sort of equal playing field that the adversary system assumes.

In the typical criminal case, the state has an overwhelming resource advantage over the defense, able to draw on detectives, forensic scientists, in-house investigators, and lawyer specialists (for example, specializing in appeals, rape, white-collar crime, or grand jury investigations). (See Daniel Givelber, The Adversary System and Historical Accuracy: Can We Do Better? in Wrongly Convicted: Perspectives on Failed Justice 253, 258–59 (Saundra D. Westervelt and John A. Humphrey eds., 2001).) The state can also grant immunity to witnesses, then compel them to testify, or can barter for a witness-informant’s testimony. (See id.) Furthermore, sentence enhancement statutes mandating extremely long prison terms under certain circumstances can make the penalties for risking conviction so high that even innocent defendants may be coerced into guilty pleas in exchange for the certain leniency of reduced charges. (See Robert A. Kagan, Adversarial Legalism: The American Way of Law 85 (2001).) Prosecutors can also choose to marshal significantly greater resources for cases that they deem especially important. (See Givelber, supra, at 259.)

By contrast, "at the crucial initial stages of many cases, and at trial, overworked public defenders or poorly compensated state-appointed defense counsel sometimes do not mount an aggressive investigation and defense, even in capital cases, and are compelled to do even less in routine felonies." (See Kagan, supra, at 67.) Even the many outstanding public defenders generally lack the time and resources needed for thorough factual investigation and legal research. (See id. at 94.) Although legislative appropriations for both public defenders and appointed counsel have generally risen in absolute terms, "these expenditures have not kept pace with the volume of criminal cases." (Id.) The result has been that per case expenditures in constant dollars "declined significantly" between the late 1970s and early 1990s. (See William Stuntz, The Uneasy Relationship Between Criminal Law and Criminal Justice, 107 Yale L.J. 1, 9–10 (1997).) Thus one New York study found that appointed defense lawyers visited crime scenes and interviewed witnesses in only 4 percent of their cases, and used experts in only 2 percent. (See Kagan, supra, at 94.) Underpaid, overburdened defense counsel have incentives to minimize the time spent on individual cases, while judges prove frequently reluctant to free state funds to finance investigations for those whom the judges assume are guilty. (See Givelber, supra, at 259.) In many cases, limited resources can, of course, be sufficient to reach just results. ((See Kagan, supra, at 84.) But in too many instances that is not so, and the wealthy can indeed buy more "justice." (See id. at 94–96.)

Prosecutors do, of course, face their own resource and ethical constraints. But tight state resources can compound the problem, and systemic incentives can render ethical constraints illusory. Prosecutors face a broad mandate to "do justice," rather than simply to win. (See generally Fred Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice? 44 Vand. L. Rev. 45 (1991).) Yet, unlike their Western European and Japanese counterparts, American prosecutors receive little formal training in sentencing theory, making decisions "rapidly and intuitively, without obligatory coordinating guidelines and without any institutionalized requirement to explain and compare their decisions in a reviewable manner." (Kagan, supra, at 85.) Heavy workloads also create incentives leading some prosecutors to overcharge offenses or threaten ill consequences at trial to encourage guilty pleas. (See id. at 84–86.) Additionally, prosecutors faced with a duty to disclose material exculpatory evidence may in good faith interpret that duty narrowly, for prosecutors come to believe zealously in the guilt of those they accuse, "inevitably com[ing] to embrace the virtues of his or her own position." (Givelber, supra, at 261.) Even the failure to turn over exculpatory evidence is unlikely to lead to a reversal, which will occur only if revelation was likely to have led to a different result or if nonrevelation otherwise undermined confidence in the trial’s outcome. (See id. at 261). Defendants also rarely learn that information has been withheld from them, and prosecutors can only provide the information that they possess. (See id. at 261–62.) Yet it is a "fair guess" that many police turn over to prosecutors what the police deem necessary to a successful prosecution, not seeing it as within their jobs to pass along exculpatory information. (See id. at 262.) Nor are prosecutors obligated to turn over to the defense in advance of trial all inculpatory evidence, thus hampering defense investigation. (See Peter J. Henning, Defense Discovery in White Collar Criminal Prosecution, 15 Ga. St. U. L. Rev. 601, 606–29 (1999) (discussing limited criminal defense right to discovery of inculpatory information).) Energetic efforts to right this state-individual power imbalance are afoot in some quarters, but only a judiciary more actively involved in acknowledging and correcting the flawed assumption of equality underlying the adversary system can improve justice in the short term and help to foster the political will for long-term reform. (See Givelber, supra, at 264–65) (making similar argument and offering guidelines for judicial and legislative action).)

Treating social science as window dressing. Finally, the Court undervalues truth by its inadequate use of social science. (See generally David Faigman, "Normative Constitutional Factfinding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. Pa. L. Rev. 541 (1991).) Many decisions in the area of constitutional criminal procedure turn in part on empirical judgments about the nature of the real world. (See Tracey L. Meares and Bernard E. Harcourt, Foreword: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 Nw. L. Rev. 733, 739 (2000).) The constitutional rule ultimately to be crafted by the Court turns, however, on normative judgments, on "promot[ing] a vision of society rather than an inherited or cloistered stakehold." (Id. at 745.) But that normative judgment merits respect only if it is fully informed by the best data available, enabling a thoughtful balancing of interests and the articulation of a persuasive rationale for the doctrinal rule chosen. (See id. at 739, 744–46.) For example, a rule of law that freely permitted show-ups rather than lineups as means of eyewitness identification would, the social science arguably suggests, dramatically raise the chances of innocents being convicted. (See Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 L. & Human Beh. (1998).) The Court might decide that, despite this social science, the needs of law enforcement are more important than the risk of error. But examining the empirical data requires the Court either to explain why those needs prevail or to alter its rule to reduce the chances of mistakes. (Cf. Faigman, supra (making similar argument concerning constitutional law generally).)

The Court does, indeed, occasionally use social science well, but more often it ignores it, examines only one-sided views of the data, or outright misinterprets it to support a decision reached on other grounds. (See Faigman, supra; Meares and Harcourt, supra at 746–50.) This "empirical myopia" is dangerous. (See Faigman, supra, at 612.) Indeed:

In many judicial opinions and, often, in academic commentary, balancing is merely a veil that masks bald assertions of political ideology. Rather than guiding the decision-making process, criminology, police studies, and the social sciences are often deployed as mere rhetorical flourishes, as tropes, or as mythology.

The result is that, today, constitutional criminal procedure decisions are often marred by spotty or inconsistent application of balancing tests and by pseudo-empirical statements about the importance of law enforcement and the sanctity of individual liberty. . . . Cases where the Court relies solidly on social scientific evidence . . . are few and far between. . . .

(Meares and Harcourt, supra, at 739–40.)

Several examples of how more careful use of social science could have altered doctrine for the better have been touched upon in this essay. Thus per se rules flatly excluding confessions obtained by risky methods seem well supported by the empirical data. (See generally White, supra.) Yet, though not an issue squarely raised by the case, the Court declined a recent opportunity to consider such data adequately in its revisiting of Miranda in Dickerson v. United States, 120 S. Ct. 2326 (2000). (Cf. Meares and Harcourt, supra, at 761–66 (on some of Dickerson’s failures adequately to use empirical data).) Nor has the Court seen fit (or at least has not had an adequate opportunity) to revisit its due process identification jurisprudence in more than 35 years in light of ample new empirical research offering insights on improving eyewitness accuracy. (See generally Wells, supra.) Perhaps among the Court’s most glaring faults has been its insufficient attention to how subconscious mental processes affect witness perceptions and fact-finder decision making, especially in the area of race. Recent studies emphasize the heightened dangers of error in cross-racial eyewitness identifications, the effect of racial bias in jury deliberations, prosecutors’ occasional use of covert racial appeals in closing arguments, and the pervasive effects on jury assessments of credibility of subconscious racial stereotyping of black men as dangerous, less intelligent, less hardworking, and less polite than whites. (See, e.g., Sheri Lynn Johnson, Race and Capital Punishment, in Beyond Repair?: America’s Death Penalty 121, 132–43 (Stephen L. Garvey ed., 2003).) Real and perceived racial bais in the criminal justice system breeds minority group distrust of the police, reducing their willingness to cooperate in police investigations. That decreased willingness may, in turn, however, reduce the quality and quantity of information available to the police, foreclosing alternative investigatory options that might have revealed a suspect’s innocence, thus amplifying the chance of being prosecuted mistakenly. (See generally Tom R. Tyler and Yi Yuen J. Huo, Trust in the Law: Encouraging Public Cooperation with the Police And the Courts (2002).)

All the blame cannot, of course, be placed on the courts. Other institutions—such as legislatures, the executive, and an aroused citizenry—may jointly have better access to social science data, to the political resources needed for real change, and to the speed of action needed to cope with rapidly changing social conditions and scientific insights. (See Taslitz, Rape and Culture, supra, at 145–51.) Indeed, the other branches of government and the citizenry also have constitutional obligations to deliberate and to act to make the criminal justice system function well. (See Taslitz, Rape And Culture, supra, at 145–51; see generally Andrew E. Taslitz, Racial Auditors and the Fourth Amendment: Data with the Power to Inspire Political Action, ____ L. & Contemp. Probs.___ (2003).) Yet where these branches fail, the judiciary’s burden to act is especially powerful. At the least, it should create incentives—such as exclusion of shoddy evidence—to promote right conduct by other criminal justice actors and should offer those actors "road maps" for their better serving their constitutional roles. (See Erik Luna, Constitutional Road Maps, 90 J. Crim. L & Criminology 1125 (2002).) Some police departments have voluntarily adopted sounder procedures, but others have done so only as a result of the specter of lawsuits. The courts need to do better to ensure that all criminal justice system participants act to maximize the likelihood that the guilty are punished and the innocent set free.

The Court, and the judiciary more generally, do not consistently operate in the ways that I have outlined here. That inconsistency, however, is precisely what offers the practicing lawyer the opportunity to challenge truth-defeating judicial practices. The advocate can point out to a court the instances where judicial decisions have appropriately given truth primacy over solely regulating state misconduct, created sound pretrial fact-finding processes, taken a systemic view of the sources of error, been attentive to power imbalances, or carefully used relevant social science. Next, the advocate can provide courts with the data and policy arguments for achieving consistency by bringing bad precedent into line with the good. No court, for example, consciously or openly commits itself to using bad social science or to ignoring it completely. A court educated by an informed advocate about the empirical data on why the innocent sometimes confess, why witnesses are often wrong, and how informants can mislead police handlers has ample freedom to consider that data in crafting and applying rules embraced by the idea of "due process of law." (See, e.g., White, supra (making this argument concerning due process and the law of confessions).) It is part of the purpose of this symposium to provide at least some of the data and the normative framework needed to better educate modern courts about how to reduce the incidence of wrongful convictions. The pieces in this symposium embody, along the way, variations on the themes discussed in this essay.

Thus all the pieces draw significantly on the relevant social science. Steven Penrod notably explains how and why eyewitnesses’ mistakes are made and what can be done about it. The solutions suggested by the data, he argues, include using sequential lineups (viewing one person at a time), larger lineups, and "blind" presentations (not even the detective administering the lineup knowing the suspect’s identity). Ed Imwinkelried builds on that data and compares it with data on the errors made by forensic scientists. Karen Parker and her coauthors explore the correlation between race and imposition of the death penalty. Robert Bloom examines data on the causes of informant fraud or error, offering practical solutions. Ronald Huff provides an overview of the social science concerning the factors contributing to wrongful convictions at every major stage of the criminal process.

Each of these authors also takes a systemic view of the problem. They are less concerned with proof of injustice in a particular case than with the systemic forces leading to error in a wide range of cases. Those forces include racial bias, witness fear, informant dishonesty, and social science ignorance concerning the state of reality. The solutions proposed are similarly systemic, including pretrial motions to suppress unreliable informants’ tips, new standard procedures to govern all lineups, judicial recognition of the dangers of subconscious racial bias, and more realistic and consistent standards for admission of forensics expert testimony.

Many of the essays are also sensitive to the importance of fair pretrial fact-finding processes. Indeed, the systemic solutions just reviewed almost all involve procedures that both improve the accuracy of trial and pretrial procedures, for example, non-suggestive lineups as a way to improve the accuracy of eyewitness identifications both at the lineup and at trial.

Ed Imwinkelried offers an insightful twist on the concern with pretrial and trial accuracy. He reminds us that "truth" is a slippery notion and that "reliability" of evidence appears on a continuum rather than being entirely an either/or concept. For Imwinkelried, the question is not whether forensic science is highly reliable. Often, it is not. A more realistic question, he suggests, is this: What are the best of the available truth-discovery techniques? Given the overwhelming evidence that eyewitness testimony is often seriously flawed, argues Imwinkelried, even imperfect social science may be a good deal more trustworthy than is the eyewitness. Relative reliability in a complex, changing world is the only practical inquiry available to us.

At least one of the pieces in this symposium—Robert Bloom’s—also challenges the Court’s insistence on narrow concepts of "state action" and when it is wrongful. In particular, he challenges the Court’s too ready willingness to treat the actions of many jailhouse informants as acting without the imprimatur of the police, thus not being subject to constitutional strictures. Without saying so explicitly, the piece by Karen Parker and her coauthors can be read to support the notion that courts fail in their constitutional obligations when they do not take affirmative efforts to uncover and mitigate conscious or subconscious racial bias. To Parker and her associates, inaction by the state in the face of a significant risk of convicting the innocent is unquestionably "wrongful" state action.

Neither I nor any of the other essayists in this symposium, of course, am suggesting that the High Court has acted in bad faith. Rather, the Court has crafted a jurisprudence from some assumptions—assumptions that I myself once saw as "self-evident"—that have simply turned out to be wrong. The first assumption was that the sheer numbers of procedural protections for the accused in the due process clauses and in the Bill of Rights—including especially the rights to a jury trial and to proof beyond a reasonable doubt—offer ample protection against error. Indeed, in an era dominated by at least the perception of rising crime rates, it seemed to some commentators that criminal suspects had too much protection. Error, if there were any, would favor letting the guilty go free. (See Richard H. Uviller, The Tilted Playing Field 189–235 (1999) (recommending narrower availability of the exclusionary rule, the end of Miranda, the general limitation of Sixth Amendment counsel rights to the time of trial, the use of magistrates’ questioning of the accused, adverse comment at trial if he refuses to answer, and the constriction of double jeopardy protections).) The second assumption was that law enforcement and prosecutors always act in good faith and that good faith is enough to ensure accurate results. As Edwin Meese, former attorney general during the Reagan administration, put it, "[T]he thing is, you don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of a crime, then he is not a suspect." (Reagan Seeks Judges with "Traditional Approach," U.S. News & World Rep., Oct. 14, 1985, at 67 (Interview with Edwin Meese, Attorney General).) The third assumption was that hard decisions turn on credibility, and credibility judgments cannot be verified as true or false in some objective sense, so courts need to protect jury verdict finality as the very definition of "truth."

This symposium demonstrates that each of these assumptions was mistaken. Constitutional guarantees, as currently understood, have not been adequate to avoid a significant number of mistaken convictions. The vast majority of criminal justice system actors do act in good faith, but the numbers that do not are more than minimal. More importantly, absent better procedures, police and prosecutor good faith have not proven up to the task of adequately minimizing error. Finally, DNA and other technological developments have created an objective benchmark that sometimes enables us to label a jury verdict as accurate or not. In short, there is now ample empirical data to justify the High Court’s revisiting its constitutional criminal procedure jurisprudence. Until that happens, however, most advocates must look elsewhere for relief.

One such place for practitioners to look for relief is in state constitutional provisions, which are not necessarily read in "lock-step" with—and indeed may be read more generously than—federal constitutional law. (See generally Barry Latzer, State Constitutions and Criminal Justice (1991).) Similarly, practitioners can ask courts to craft sensible truth-enhancing rules based upon the inherent supervisory authority of the courts. This last point is well illustrated by State v. Scales, 518 N.W.2d 587 (1994).

There, a defendant convicted on two counts of first-degree and one count of second-degree murder unsuccessfully sought to suppress pretrial statements on several grounds, including the police’s failure to record his interrogations. The Supreme Court of Minnesota chose not to reach the question whether the Due Process Clause of the Minnesota Constitution required such recording. However, the court did nevertheless mandate recording interrogations, relying on these alternative grounds:

[I]n the exercise of our supervisory power to insure the fair administration of justice, we hold that all custodial interrogation, including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention. If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial. The parameters of the exclusionary rule applied to evidence of statements obtained in violation of these requirements must be decided on a case-by-case basis. Following the approach recommended by the drafters of the Model Code of Pre-Arraignment Procedure, suppression will be required of any statements obtained in violation of the recording requirements if the violation is deemed to be "substantial." . . . If the court finds a violation not to be substantial, it shall set forth its reason for such a finding. The rule and the remedy will apply prospectively from the date of the filing of this opinion. The Advisory Committee on Criminal Rules may further consider the proper scope of the exclusionary rule in this context.

(Id. at 592.)

Scales is a helpful model for the advocate in several respects. First, it illustrates the willingness of at least some state courts to find a doctrinal hook for promoting a more robust commitment to truth-finding at trial. Second, it adopted a per se rule: all aspects of all custodial interrogations must be recorded. Granted, the court did permit some room for discretion concerning whether to apply suppression as a remedy for violation of the recording rule. But the model code relied upon by the Court significantly limits that discretion, defining as "substantial" violations of the recording rule all those deviations creating a "significant risk that an incriminating statement may have been untrue" or that was "of a kind likely to lead accused persons to misunderstand their position or legal rights and to have influenced the accused’s decision to make the statement." (See Scales, 518 N.W.2d at 592 n.5 (quoting Model Code of Prearraignment Procedure § 150.3(2), (3).) Violations are also likely to be found to be substantial, thus requiring suppression, if the violations were made in bad faith, part of the practice of the law enforcement entity, authorized by a high authority within that entity, or if factors such as the degree of the violation and the availability of other sanctions likely to be effective warrant suppression. (See Model Code of Prearraignment Procedure
§§ 150.3(2), (3).) This solution may not be perfect, but it does emphasize the importance of the trial as a search for truth and builds in incentives for police to avoid intentional violations of an otherwise per se recording rule in the uncertain hope of avoiding suppression.

Third, the Scales court’s willingness to embrace a model statute in this area suggests that it and other courts may be willing to turn to such codes in other doctrinal spaces, such as preventing flawed informants’ tips, bad eyewitness identifications, or untrustworthy forensic evidence. Even though arguably not likely to be given as much deference as is given to codes embraced by authoritative organizations in the legal community (such as the American Law Institute or the American Bar Association), the Scales logic of pursuing readily available procedures that are likely to maximize the truth quest should also extend to guidelines promulgated by professional social science organizations or individual social science or legal scholars that are supported by a substantial body of empirical evidence.

Fourth, the prospective nature of the rule articulated in Scales eliminates the fear of new rules endangering the finality of large numbers of existing convictions—a fear that may cause many courts to hesitate to tinker with the status quo. On the other hand, prospective application can create disincentives for counsel to pursue suppression motions, because prospective-only rules cannot benefit counsel’s current client. Defense counsel might therefore best be advised to argue that use of certain procedures—such as sequential administration of lineups—is already implicitly required by the truth-promoting goals of due process. Relatedly, precisely because of the growing evidence that our system generates a significant number of mistaken convictions, several commentators have argued that the Fourteenth Amendment Due Process Clause—which courts see as more directly concerned with trial accuracy than are the relevant portions of the Bill of Rights—and its companion Equal Protection Clause are ripe for re-invigoration as the best constitutional bases for protecting the innocent:

Anyone who reads the newspapers can tell that our criminal justice system punishes too many innocent people, permits the escape of too many guilty people, and has an unconscionably disproportionate impact on blacks. The Fourteenth Amendment clearly speaks to these challenges—due process demands reliable procedures and equal protection prohibits invidious discrimination. . . . [D]ue process and equal protection . . . [can readily] generate some practical constitutional rules that would do far more than existing law to protect the innocent, enable the conviction of the guilty, and reduce racial unfairness in the administration of justice.

(See Dripps, supra, at 186.)

Finally, Scales expressly directed the court’s rules committee to continue refining the new rule adopted by the court. Activating the rulemaking process as a way to monitor and improve the value of new truth-enhancing procedures is a sensible move. Indeed, some scholars have advocated that standing "innocence commissions" investigate claims of innocence in individual cases, using those cases to craft and recommend additional systemic improvements. (See Barry Scheck and Peter Neufeld, Toward the Formation of "Innocence Commissions" in America, 86 Judicature 98 (2002).) Such commissions would thus act as gadflies pursuing ever-more-trustworthy fact-finding procedures.

This symposium issue differs from most issues of Criminal Justice in that most of what follows concerns social science rather than legal doctrine. That is so because it is the empirical data that the advocate most needs to craft arguments to protect the innocent, given the malleability and diversity of the case law. Undoubtedly, the essays herein repeat some information, but they necessarily do so because much of the same scientific insights have implications for an advocate’s strategy at various stages of, and approaches to, the criminal process. These implications should matter to police and prosecutors as much as to defense counsel, for better procedures raise the likelihood both of releasing the innocent and of apprehending the guilty. Moreover, solid procedures reduce the chances of reversal on appeal in addition to simply being the right thing to do. An appendix following this essay offers a concise bibliography to aid all interested criminal justice system actors in pursuing a better course.

A final caution. Many readers of this symposium may come away with the impression that the system is in frightening disrepair. That, at least, is not my position. Large numbers of guilty offenders are convicted every day after the energetic, professional efforts of honest police officers, careful prosecutors, zealous defense lawyers, and admirable judges. The mounting evidence that there are nevertheless a significant number of mistakes made requires all persons of goodwill to take action, not only to acquit the innocent, but to protect public safety (by convicting the guilty) and safeguard the public trust in the system, a trust that is essential to the health of America’s democracy.

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