Wednesday, January 20, 2016
Keith A. Findley (University of Wisconsin Law School) has posted Implementing the Lessons from Wrongful Convictions: An Empirical Analysis of Eyewitness Identification Reform Strategies (Missouri Law Review, Forthcoming) on SSRN. Here is the abstract:
Learning about the flaws in the criminal justice system that have produced wrongful convictions has progressed at a dramatic pace since the first innocent individuals were exonerated by postconviction DNA testing in 1989. Application of that knowledge to improving the criminal justice system, however, has lagged far behind the growth in knowledge. Likewise, while considerable scholarship has been devoted to identifying the factors that produce wrongful convictions, very little scholarly attention has been devoted to the processes through which knowledge about causes is translated into reform. Using eyewitness misidentification -- one of the leading contributors to wrongful convictions and the most thoroughly and scientifically studied of those contributors -- as the focus, this Article begins to fill that void by empirically analyzing a variety of approaches to eyewitness identification reform that have been attempted. This Article establishes a taxonomy of reform efforts ranging from top-down, command-and-control legislation, to entirely bottom-up, essentially laissez-faire approaches, to a hybrid that builds on emerging notions of democratic experimentalism -- a form of "new governance" -- to foster bottom-up experimentation by imposing obligations on police while giving them the freedom to develop their own locally tailored responses to the problem of eyewitness error. The bulk of the empirical analysis assesses the effects of the bottom-up experimentalist approaches to reform, as a contrast to command-and-control approaches. The analysis draws on previously collected national survey data as well as data from a few individual states, most prominently new data developed for this Article on the attempt to foster bottom-up eyewitness identification reform in Wisconsin. While more research is required before one can draw conclusions about which approach works best, the data suggest that the democratic experimentalist model shows promise for considerable, albeit imperfect, implementation of social-science-based eyewitness identification reforms.