Getting It Wrong: Convicting the Innocent
When he recently signed legislation abolishing the death penalty in Illinois, Gov. Pat Quinn noted a "grave danger" that the innocent could be executed. This past March, the U.S. Supreme Court decided, in Skinner v. Switzer, to expand the right to access DNA testing that could potentially prove a defendant's innocence. Last week the New York Times published a firsthand account by John Thompson, an innocent man who came within hours of his own execution. Two weeks ago, the U.S. Supreme Court threw out a $14 million jury award compensating him for the years he spent in prison. Public opinion surrounding the death penalty has been shaped, in recent years, by the possibility of innocents being executed. And DNA exonerations continue to regularly occur, although with little rigorous assessment of what went wrong.
In my new book, Convicting the Innocent, I conducted the first empirical study of the first 250 wrongful convictions brought to light by DNA tests in the United States. First, I located the original criminal trial materials from almost all of those innocent people's cases. I then reviewed those remarkable cases. My goal in revisiting those trials was to try to understand how the criminal justice system could make such fundamental errors. These 250 cases shed light on how not just death penalty cases (17 of the 250 were capital cases), but everyday criminal cases rely on unsound evidence and faulty investigative procedures. It's easy to blame innocent convictions on occasional human error. The high court suggested as much in its ruling in Osborne v. District Attorney's Office, denying an inmate's request for post-conviction DNA testing and saying that our criminal justice system, "like any human endeavor, cannot be perfect." But just because a system is a human one doesn't mean that we should casually assume that things must go wrong. My research shows systemic failures that can be prevented by using improved criminal procedures, subject of a multimedia website, a joint project with the Innocence Project, titled "Getting it Right,"to be launched soon, and with a segment on eyewitness misidentifications which has just been launched.
In this series for Slate, I discuss two common types of flawed evidence: eyewitness misidentifications and false confessions.
Eyewitness misidentifications were the single greatest cause of flawed evidence in the 250 innocent exonerations I studied. And no case better explains how eyewitness errors can occur than the best-known eyewitness false identification of them all: Ronald Cotton was exonerated by DNA tests in North Carolina after spending more than 10 years in prison.
Trial records shed light on what really happened in the Cotton case. In 1984, Jennifer Thompson-Cannino, a college student, was raped in her apartment in Burlington, N.C. Mike Gauldin was the lead detective. Police asked Thompson-Cannino to help draw a composite of her rapist. Later, she was shown a photo array with six photos. She initially chose two pictures from the array, one of which depicted Cotton. Cotton's mug shot—the one she saw—is below.
She examined those two pictures for "four or five minutes." She then said:"Yeah. This is the one," and added, "I think this is the guy."
A detective asked her, "You 'think' that's the guy?" and she answered, "It's him."
"You're sure," Gauldin asked, and she said, "Positive." There was even more reinforcement of her choice by police officials. She asked them, "Did I do OK?" The detectives answered, "You did great, Ms. Thompson."
The officers did not take a confidence statement. That is, they did not ask in an open-ended way how sure she was, which psychologists recommend. Instead, they implied she needed to be sure, which only led her to feel more confident.
Was there something else the officer did that cued her to pick the photo of Cotton? We can never know, but we do know that even unintended cues by well-meaning officers can play a dramatic role during these fraught identification procedures. Psychologists have shown that if lineup administrators know which photo belongs to the suspect, even unintentionally, they may signal the "right" choice and shape the victim's responses. There is one straightforward way to prevent such cues or suggestions: To use a double-blind procedure, in which the officer does not know which is the suspect, and the eyewitness is expressly told that the officer does not know. Psychologists have long recommended double-blind lineups as the most crucial improvement to police procedures as they now exist.
Meanwhile, the district attorney, perhaps worried about Thompson-Cannino's lack of certainty, ordered a second identification procedure. Thompson-Cannino viewed a physical lineup of seven men. The actual lineup is pictured below. Ronald Cotton was No. 5.
Despite the assurances and the repetition of just Cotton's photo, Thompson-Cannino was still not sure. She was trying to be very careful in making a choice. After viewing the lineup for a while, she told detectives she was deciding between Nos. 4 and 5. Detective Gauldin asked whether she would like the lineup repeated. She said yes. She then stated that Cotton "looks the most like him."
Gauldin asked her "if she was certain," and she said she was. Again, she was not asked how certain she was—she was, in effect, just asked to be certain. Additional comments from the detectives, similarly well-intentioned and designed to reassure her, also had a dramatic effect. "We thought that might be the guy," said Gauldin, "It's the same person you picked from the photos." She later recalled: "When I picked him out in the physical lineup and I walked out of the room, they looked at me and said, 'That's the same guy,' I mean, 'That's the one you picked out in the photo.' For me that was a huge amount of relief."
At Ronald Cotton's criminal trial, the judge rejected the defense challenge to the lineups. The defense tried to call an expert on eyewitness memory—a professor of psychology—but the judge denied the request. The jury saw Thompson-Cannino point to Ronald and agree she was "absolutely sure that Ronald Junior Cotton is the man."
Cotton was sentenced to life in prison plus 54 years. At a post-conviction hearing, Cotton's lawyer presented Thompson-Cannino with a man Cotton had met in prison and believed might be the real culprit. His name was Bobby Poole. She said: "I have never seen him in my life. I have no idea who he is."
Cotton served 10 and a half years before DNA tests exonerated him. The tests matched Bobby Poole, who then pleaded guilty. Ronald and Jennifer wrote a book together, Picking Cotton, about what went wrong. They now travel the country together to lobby for improved identification practices. Mike Gauldin responded to this case by being the first police chief in his state to institute eyewitness best practices. North Carolina has since adopted best practices statewide.
The Cotton case fits a larger and troubling pattern among all the DNA cases I studied. In 57 percent of the DNA exoneration trials that included eyewitness testimony, the eyewitnesses had earlier been uncertain, a glaring sign that something was wrong right off the bat. Eyewitnesses identified fillers or other suspects, or no one at all, or they described being unsure. However, almost without exception, those eyewitnesses had become absolutely certain of what they had seen by the time of trial. One eyewitness said "This is the man or it is his twin brother." Another was "one hundred and twenty" percent sure.
Where did this false certainty come from? The trial records I looked at suggest that unsound and suggestive police identification procedures played a large and troubling role. Police used unnecessary show-ups, where they presented the eyewitness with just the defendant. Or stacked lineups to make the defendant stand out. Or offered suggestive remarks, telling the eyewitness whom to identify or to expect a suspect in a lineup. Or confirmed the witness's choice as the right one. Even well-intended, encouraging remarks, like "good job, you picked the guy," can have a dramatic effect on eyewitness memory, as psychologists have shown. Indeed, more than one-third of the cases I looked at involved multiple eyewitnesses, as many as three or four or five eyewitnesses who all somehow misidentified the same innocent person. Further, almost half of the eyewitness identifications were cross-racial. Psychologists have long shown how eyewitnesses have greater difficulty identifying persons of another race.
I argue in my new book, Convicting the Innocent, that well-recognized best practices, grounded in decades of psychological research, can reduce such misidentifications. Eyewitnesses should always be told the attacker might not be present in the lineup. Their initial confidence level should be documented (because, like in Ronald Cotton's case, by the time of trial it may change). The most crucial proposed reform is double-blind administration. The officer administering a photo or live lineup should not be aware who the suspect is, and the witness should be told the officer does not know. Such changes simply require updating the identification procedures and better documenting the results. Responding to DNA exonerations, police, prosecutors, and courts are starting to adopt some of those practices, but only piecemeal, and only in some states and some jurisdictions. Ronald Cotton and Jennifer Thompson-Cannino are traveling the country and revisiting their painful experiences only because the stakes are so high: The same systemic failures will cause countless wrongful convictions in the future unless we make our criminal justice system more accurate.
Each year as many as 80,000 eyewitnesses make identifications in criminal investigations. We would like to think that those eyewitnesses are all getting it right, but cases like Ronald Cotton's suggest how they can get it wrong. The problem lies with the procedures used by police who administer the lineups. DNA cannot solve that problem. After all, DNA tests can be used to answer the question of guilt or innocence only in a tiny sliver of criminal cases. We will never know how many people have been wrongly convicted based on the mishandling of the fragile, malleable memory of an eyewitness. If simple, inexpensive improvements to criminal procedures can help us get it right, we should adopt them. It took, on average, 15 years to exonerate the first 250 people freed by DNA tests. Let's hope it takes far less time to learn the lessons those tragic cases can teach.
Brandon L. Garrett is a professor of law at the University of Virginia School of Law who studies criminal procedure, civil rights, and wrongful convictions. His new book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, was published by Harvard University Press. An interactive website about the book, called "Getting It Right," will soon be hosted on the Innocence Project website.