Root Causes of Wrongful Convictions: Interview with Peter Neufeld

On August 17, 2010, Peter Neufeld, co-founder of the Innocence Project along with Barry Scheck, was interviewed by Slate about the causes of wrongful convictions and where reform is needed. Here in an excerpt (full article here):

How do most wrongful convictions come about?

The primary cause is mistaken identification. Actually, I wouldn't call it mistaken identification; I'd call it misidentification, because you often find that there was some sort of misconduct by the police. In a lot of cases, the victim initially wasn't so sure. And then the police say, "Oh, no, you got the right guy. In fact, we think he's done two others that we just couldn't get him for." Or: "Yup, that's who we thought it was all along, great call."

It's disturbing that misidentifications still play such a large role in wrongful convictions, given that we've known about the fallibility of eyewitness testimony for over a century.

In terms of empirical studies, that's right. And 30 or 40 years ago, the Supreme Court acknowledged that eyewitness identification is problematic and can lead to wrongful convictions. The trouble is, it instructed lower courts to determine the validity of eyewitness testimony based on a lot of factors that are irrelevant, like the certainty of the witness. But the certainty you express [in court] a year and half later has nothing to do with how certain you felt two days after the event when you picked the photograph out of the array or picked the guy out of the lineup. You become more certain over time; that's just the way the mind works. With the passage of time, your story becomes your reality. You get wedded to your own version.

And the police participate in this. They show the victim the same picture again and again to prepare her for the trial. So at a certain point you're no longer remembering the event; you're just remembering this picture that you keep seeing.

Other than misidentifications, what other factors play a role in wrongful convictions?

The second most common cause is the misuse of forensic science other than DNA. In most of our cases, DNA [identification] didn't exist at the time of the conviction, so prosecutors relied on other types of forensic science. It could be serology, which was the old A/B/O blood typing. It could be bite marks. It could be fingerprints. It could be other forensic disciplines: tire marks, shoe print comparisons, fiber comparisons. None of these is bulletproof—some of them aren't even credible—so we see a lot of wrongful convictions stemming from those.

And there are several other very common causes as well. You have police and prosecutor misconduct. You have incompetent defense attorneys. You have jailhouse snitches, who as you can imagine are not the most reliable sources. And you have false confessions. Twenty-five percent of wrongful convictions involve false confessions. Most people can't imagine why anyone would ever confess to a crime they didn't commit, unless they were beaten into it. But these people weren't beaten. They wouldn't even meet the legal definition of coercion. It's just that the [interrogation] methods that are effective for getting confessions from guilty persons are so powerful that they net innocent people as well—particularly innocent people who are juveniles or have some kind of intellectual impairment or mental health problem.

I'm curious about police and prosecutor misconduct. I assume that most people in these jobs aren't actually trying to convict innocent people. So how does such misconduct come about?

I think what happens is that prosecutors and police think they've got the right guy, and consequently they think it's OK to cut corners or control the game a little bit to make sure he's convicted. The thinking goes, "God forbid a guilty guy go free because of smart lawyering by the defense" or what have you. They're so convinced that they are right that they feel exempt from behaving right. They don't realize that it's wrong to be unethical. And not just because it could convict an innocent person. It's simply wrong to be unethical.