Monday, March 28, 2011
D. Michael Risinger (pictured) and Lesley C. Risinger (both of Seton Hall University School of Law) have posted Innocence is Different: Taking Innocence into Account in Reforming Criminal Procedure (New York Law School Law Review, Vol. 56, No. 3, 2011) on SSRN. Here is the abstract:
It has often been said that "death is different," meaning at a minimum that the ultimate finality of the death penalty requires both special standards for its imposition and special care in applying those standards. But what has generally been overlooked is that "innocence is different" also. What we mean by this is that the protection of the actually innocent from conviction should be a paramount goal of the criminal justice system against which all procedural rules and policies should be judged. Despite the traditional rhetoric that recognizes this, too often the protection of the innocent takes a back seat to other goals, such as the conviction of the guilty - or even, ironically, the protection of the guilty.
In the project of which this paper is the first part, we attempt an overview of what an "innocentric" system would look like, and what changes would be required to reform our current practices to come as close to such a system as possible. We approach this task with eyes open. In criminal procedure, most individual reforms, even the ones that should be least controversial, predictably face stiff opposition from one constituency or another that sees the reform as a lost advantage, or at least sees no advantage in the reform. Police and prosecutors may fear the loss of current practices which they perceive as useful for convicting those whom they believe to be guilty. The defense bar may fear that some reforms will bring new disadvantages to the majority of their clients (the factually guilty ones) for the benefit of the innocent minority. Those whose main interest is in the root-and-branch abolition of capital punishment may fear that some reforms will derail such abolition efforts, as concerns about the execution of the factually innocent are reduced. Those whose main focus is giving crime victims "closure" may fear that some of the reforms may banish public fury from the trial of guilt in ways that disappoint the desires of victims. Judges, who by definition have been successful players under the current system, may indulge the well-known human tendency to believe that the system in which they have been personally successful has virtues beyond those it appears to have when subjected to critical analysis. Lawyers in general may indulge the quite common romantic notion that "our adversary system" is already the best of all possible worlds, reinforced by the Burkean notion that the unintended consequences of changing institutions hallowed by long practice are likely to be worse than simply pursuing business as usual.
We will deal with such concerns as we judge they may arise in regard to any given change espoused. But in general, we think it appropriate at the outset to call on the members of all these "stakeholder" groups (as they appear to be called today) to recognize the special claims of another stakeholder group, that is, the convicted innocent (including the innocent who will be convicted if the proposed reforms are not undertaken). We call upon all constituencies to realize consciously and explicitly that, whatever other concerns are at stake, "innocence is different."
Having said this, we want to make clear that we are not asserting that conviction of the factually innocent must be avoided at all possible costs whatsoever. We realize that the only way to accomplish this in a human system that must deal with a high volume of individual crimes would be to quit convicting anyone at all. This would obviously result in too high a price to pay, and impose the costs of resulting uncontrolled crime on yet other innocents in society. However, we believe that all of the reforms we recommend in this article would result either in no costs in terms of lost convictions, or (at the most) only in losses of convictions that were epistemically indefensible anyway, in that the convictions were only randomly right. In addition, we believe that many of the reforms we recommend would in fact lead both to fewer convictions of the innocent and to more convictions of the guilty.
Many of the structural reforms we embrace have been suggested before in one form or another, but not, we believe, in the form and combination that we have put forth. In making our suggestions, we have tried to retain the epistemic strengths to be derived from structured adversarialism, while using police restructuring and judicial oversight to eliminate the practical monopoly of information currently enjoyed by the police and prosecution at least up to the point a charge is made, which practical monopoly is the very antithesis of real adversarialism. In addition, one suggested reform of note, which we believe is totally original to this paper, involves seeing mugshot viewings by eyewitnesses as "trawl searches," subject to all of the dangers of such searches looking for cold hits in databases, and more, since the random match probability for a face under the conditions of the mugshot trawl is currently unknown.