America needs to change investigative practices and the criminal justice culture to avoid wrongful convictions, delegates to a Wrongful Conviction Summit concluded.
“Wrongful convictions go against the fundamental freedoms we value as Americans,” said delegate Walter A. McNeil, president of the International Association of Chiefs of Police, which sponsored the summit.
Eyewitness identifications can lead to wrongful convictions, the summit noted.
“Even after an identification is made, the investigation should continue to make sure that the actual offender has been identified,” the August 2013 summit report stated.
The summit was held in Alexandria, Va., to examine issues surrounding wrongful arrests, prosecutions and convictions.
More than 75 subject matter experts from law enforcement, the justice system and the community participated in the summit. Participants were divided into four different working groups: making rightful arrests; correcting wrongful arrest; technology and forensic issues; and re-examining closed cases.
The purpose and challenge of each group was to develop policy recommendations that could be applicable in jurisdictions across the nation. Such national strategy would reduce the number of wrongful arrests, prosecutions and convictions nationwide.
The group noted technologies such as advanced forensic science and hand-held electronics that capture voice and video data are clearly the future of investigative excellence.
One critical theme developed was the need for all justice system agencies to be open to new information. This means being open to new information received or developed at any point in the investigation – arrest, prosecution, trial and court appeal.
Office of Justice Programs Acting Attorney General Mary Lou Leary asked attendees of the August 2012 summit to put themselves in the shoes of someone wrongly convicted. She also emphasized how deeply disturbing that experience is for a wrongly convicted person, and the challenges they face seeking to prove their innocence.
Major topics included:
Funding and Resources
Many jurisdictions lack the appropriate budget, officers, detectives and the most advanced technology and equipment needed for investigations, the report said.
With neighboring jurisdictions sharing their resources or the establishment of a statewide fund to create equal funding among jurisdictions, the recommendation of uniform standards in addressing wrongful convictions could be more easily implemented.
Overcoming the Challenges
Summit participants identified and discussed in detail key features of a climate that encourages investigations that are more thorough and fewer wrongful convictions.
Some of the key features discussed were: greater communication, increased and improved assessment, stronger investigative protocols, frequent and improved training of law enforcement and prosecutors, greater supervision and better case review prior to the finalization of arrest and prosecution decisions.
Increased and improved communication among law enforcement officers, investigators, prosecutors, defense attorneys, judges, victims, victims’ advocates and the community at large is one key to resolving wrongful arrests, prosecutions and convictions.
The questioning of the original direction of a case between law enforcement officers and the prosecutors is needed and should be accepted and welcomed as a proper investigative protocol.
A culture shift where investigators are open to case assessment and review by supervisors and what summit participants envisioned as “wrongful arrest risk-assessment tools” are also needed. Intelligent dialogue, including the admittance of uncertainty and mistakes, needs to be an expected part of any good investigation.
The following is a summarized reconfiguration of the summit discussions and 30 final policy recommendations formatted into more global topics:
Understanding the Challenges
The majority of wrongful arrests, prosecutions and convictions result from multiple factors together creating dysfunction. According to the Innocence Project, in cases where DNA exonerated the convicted person the wrongful conviction can be linked to one or more of the following: eyewitness misidentification; forensic science inaccuracies and unreliable measures; false confessions; and inaccurate informant testimony.
“Even after an identification is made, the investigation should continue to make sure that the actual offender has been identified”
Studies show that a high percentage of exonerations are based on eyewitness misidentification. These wrongful identifications often result in the pursuit of a perceived suspect and less consideration given to other possible suspects. This over-reliant approach opens the door to a host of investigative and prosecutorial mistakes to be made.
The work environment of both law enforcement and prosecutors is not always conducive to the examination of evidence or the direction of an investigation while exercising healthy skepticism. This challenge is due to the inherent pressure upon the justice system to quickly identify, arrest, prosecute and convict violent offenders.
In particular, the investigative process in high-profile cases is constantly under scrutiny by victims, the media and governing body officials. This may cause premature acceptance of inaccurate information as fact.
In preventing or correcting wrongful convictions, law enforcement and prosecutors must be more cautious and examine, without emotion, the evidence that points to or away from a particular individual.
Summit participants urged investigators to make every effort to identify errors before or while traveling down a particular investigative path.
Limited resources, or the lack thereof, is a common challenge in the training of law enforcement personnel. For instance, the unavailability of opportunities, funding and staffing may not allow employees to attend critical training sessions pertinent to their respective department or agency.
The potential and effectiveness of law enforcement personnel are stymied by these limitations. Regions and states must share more resources, network and be more inclusive of others in their training offerings.
The Wrongful Arrest Risk-Assessment Guide
An innovative approach discussed by the summit participants was the development of a “Wrongful Arrest Risk-Assessment Guide” used to reduce wrongful arrest.
Features of the risk-assessment tool include leveraging knowledge from prior research. This involves law enforcement investigators questioning information such as: Does the case revolve around a single eyewitness identification?; Is critical information being provided by jailhouse informant?; Was forensic evidence properly collected?; Is the forensic analysis reliable?
The implementation of investigative protocols helps to prevent investigative bias, overload and auto-pilot behaviors.
Protocols will also foster greater accountability, investigatory support and assurance in the consistent application of standards in each case.
Post-Arrest, Post-Conviction Review
Although it may be challenging to obtain resources to examine closed cases, these challenges cannot become excuses to allow potentially wrongfully convicted persons to remain unjustly incarcerated.
A victim-focused support system must be put in place to prepare victims in understanding why a case might be reopened and re-evaluated. This ensures that the victims understand the motivations and reasoning for correcting a wrongful arrest, prosecution and conviction.
In similar contrast, the wrongfully convicted need and deserve significant support when learning that their case is being re-evaluated and possibly overturned. This is necessary to prepare the wrongfully convicted to re-enter society completely exonerated of the crime.
In summary, the welcoming of intelligent dialogue, critique and self-assessment, proper training, carefully considered protocols and review process will greatly serve to transition the law enforcement culture.
In doing so, these efforts will foster the absolute best practices in policing and law enforcement’s commitment to protecting the welfare of the society they serve.
Participations included: Ilse Knecht, deputy director of public policy for the National Center for Victims of Crime: Mike Corely, chief of police, Brownwood, Texas, Police Department; Kristine Hamann, executive assistant district attorney, New York City; Russell Canan, judge, Superior Court Criminal Division, Washington, D.C., and Barry Scheck, professor of law, Benjamin N. Cardoza School of Law, Yeshiva University, and co-founder and co-director, Innocence Project.