July 19, 2007
Judging Innocence, 108 Colum. L. Rev. (forthcoming 2008)
ABSTRACT
In this empirical study, I examine for the first time how the criminal system in the United States handled the cases of people who were subsequently found innocent through post-conviction DNA testing. The data that I collected tells the story of this unique group of exonerees, starting with their criminal trials, moving through several levels of direct appeals and habeas corpus review, and ending with their eventual exonerations. Beginning with the trials of these exonerees, I examine why they were wrongly convicted. The leading types of evidence supporting their wrongful convictions were erroneous eyewitness identifications, faulty forensic evidence, informant testimony, and false confessions. Yet I show that our system of criminal appeals poorly addressed this factual evidence. Surprisingly few innocent appellants brought claims regarding those facts, nor did many bring claims alleging their innocence. For those who did, hardly any claims were granted by appellate courts. Far from recognizing innocence, courts often denied relief by finding error to be harmless on account of the appellant’s guilt. Criminal appeals brought before they proved their innocence using DNA yielded apparently high numbers of reversals—a fourteen percent reversal rate. However, I show that the reversal rate is indistinguishable from the background rate in appeals of comparable rape and murder convictions; thus our system may produce high rates of reversible errors during rape and murder trials. Finally, I develop how even after DNA testing was available, innocent appellants had difficulty ultimately receiving relief. These findings all demonstrate how our criminal system failed to effectively review unreliable factual evidence, and as a result, misjudged innocence. ..more.. by Brandon L. Garrett, University of Virginia School of Law
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