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"We find the defendant...innocent! [whisper] I mean, not guilty!" |
When we
say that “not guilty” is a legal decision, we mean that it’s a decision based
on criteria described by laws – namely in the U.S., if the prosecutor can
convince the jury of the defendant’s guilt. This is based partially on the
amount of evidence that points toward the defendant as the perpetrator of the
crime, but is not based on this alone. Different levels of crimes have
different “burdens of proof” that the prosecutor must meet. For most crimes,
this standard is “beyond a reasonable doubt.” Beyond a reasonable doubt is not
necessarily quantifiable – it’s not a specific percentage of certainty. It does
not mean that a juror has to be completely sure of the defendant’s guilt – just
sure to the point where any doubts they have would be unreasonable.
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Simpson was found "not guilty" because the prosecution failed to meet the burden of proof - that is, convince the jury he did it. |
Thus, a
prosecutor is trying to win an argument, not just describe the facts. But there
are rules for making those arguments, and those rules make up volumes and
volumes of legal rules and guidelines, ranging from types of crimes to
procedures to what evidence is and is not permissible. Thus, one could
cynically say that the legal system is about whether or not the defendant
actually committed the crime, but whether or not the prosecutor can prove they
did**.
In
practice, this means that a defendant can potentially win their case (that is,
avoid being found guilty) regardless of whether they committed the crime. It
may be that the prosecutor did not present enough evidence to convince the jury
– perhaps the only evidence they had was some grainy security footage that may
or may not have shown the defendant committing the crime. Perhaps there was
reasonable doubt because there were multiple plausible explanations for the
physical evidence found at the scene, not all of them implying that the defendant
committed the crime.
Another
possibility is that a legal rule prevents the defendant from being found guilty
– “getting off on a technicality” as they say. This can manifest in a few ways.
A trial could be declared a mistrial under some circumstances – such as the
jury hearing evidence they should not have. Another way that a defendant could
avoid being found guilty based outside of the actual facts of the crime is if
evidence is deemed inadmissible. This is particularly relevant for confessions.
Say the police did not read the defendant his Miranda rights before beginning
an interrogation where the defendant confesses. The judge should not permit
that confession to be used as evidence in trial – even if the confession is true – allowing a defendant to go free***.
The law
views the process of convicting a person largely as a matter of procedure. That
is, the rules are supposed to be followed properly in order for the government
to exercise its power to deprive a person of his or her liberty. Failure to
meet the standards of the law is grounds for acquitting a defendant. In this
system, it’s the job of a defense attorney to make the prosecution satisfy the
requirement of establishing guilt beyond a reasonable doubt. This means it’s
their job to vigorously cross-examine witnesses, cast doubt on evidence, and
call out prosecutors when they act in a way that’s inconsistent with the law
(you know, like those dramatic scenes in legal dramas when an attorney shouts,
“Objection!”). For better or worse, this means defense attorneys are supposed
to do everything legally possible to obtain the best outcome for their client –
including an acquittal, if possible – regardless of whether he or she actually
committed the crime. It’s a common perception that this kind of work is slimy,
but this kind of zealous fighting for their clients is exactly what the
adversarial justice system has asked attorneys to do****. The system has no
chance of working if they’re not fighting hard.
As
researchers working at the intersection of psychology and law, however, we have
different somewhat concerns than lawyers. We often care less about the law as
procedure and more about whether the law is working the way it’s supposed to – for example, whether verdicts correspond to
whether the defendant actually committed the crime. A lot of our attention is
spent on cases in which people who are factually innocent – that is, they
didn’t commit the crime – are found guilty.
But how do
we know if someone is actually innocent,
rather than legally not guilty? We try to determine “ground truth” (that is,
what actually happened) with evidence, but that evidence is rarely irrefutable.
For example, a person who saw the crime occur can be very helpful – but we know
that eyewitness memory can be distorted and inaccurate. We can rely on forensic
evidence, but most evidence exists on a spectrum from completely bogus (e.g.,
bitemarks) to useful, but not scientifically validated and subject to human
error (fingerprints). Thus, while there may be so much evidence against a
defendant that the jury finds them “guilty”, it’s still possible that the
defendant is, in fact, innocent – which is precisely how we end up with
wrongful convictions.
Luckily,
DNA evidence exists. As the “gold standard of evidence,” DNA identifications
are based on scientifically-verified probabilities and are less influenced by
human error*****. In certain circumstances, DNA can confirm, or rule out, that
the defendant committed the crime. For example, if a victim was attacked and
managed to claw the attacker, the police could analyze the skin and blood from
under the victim’s fingernails for DNA.
If DNA is present and it matches the
defendant, that’s extremely strong evidence that the defendant was the
attacker. If it’s not a match, however, the police should look for a different
suspect – one whose DNA does match.
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DNA can both pinpoint the guilty, and protect the innocent |
DNA
testing has become a crucial part of criminal investigations since its advent
in 1985. Prosecutors present DNA evidence to convict a defendant, and defense
teams present DNA non-matches as a way to exonerate their clients. Even after a
case is decided (particularly cases that happened in the 80’s or earlier when
DNA evidence may have been collected but not tested), DNA evidence can be
introduced during appeals or retrials. In this way, DNA evidence has become a
very effective way for the courts to try to match “not guilty” verdicts to innocent
defendants.
Indeed,
some organizations such as the Innocence Project,
focus exclusively on using DNA evidence to exonerate the wrongfully convicted
by establishing the defendant is factually innocent. If, after conviction, it
comes out that there was untested DNA evidence, the Innocence Project may take
on the case and lobby for testing. If the DNA from the crime scene does not
match the defendant – that is, they are factually innocent, the Innocence
Project will then likely get involved in the appeals process to have that
defendant released and the verdict overturned. Since their founding in 1992,
the Innocence Project has exonerated 356 wrongfully-convicted men
and women using DNA evidence.
But what
if a case doesn’t have DNA evidence? For a person to be exonerated by DNA
evidence, there needs to be DNA evidence that can be conclusively tied to the
case. That is, forensics needs to have recovered some source of DNA – blood,
skin cells, hairs with the roots still attached, saliva, or semen – from a location
essential to the commission of the crime, such as on the body of the victim.
After all, if a woman was murdered in their living room and the husband’s skin
cells were found on the couch, that does not mean that the husband committed
the crime. Thus, the number of cases that have useful DNA cases probably isn’t
all that high.
Fortunately,
a defendant who has been wrongfully convicted can still be exonerated even
without DNA evidence. In these cases, organizations such as the Center
for Wrongful Conviction work to exonerate defendants who claim actual
innocence as well. Doing this without DNA evidence may be a bit trickier though
– after all, evidence that isn’t irrefutable is a bit harder to argue. Defense
attorneys will use the facts of the case to argue actual innocence in a variety
of ways, such as explaining what errors were made in interpreting the evidence
in previous trial or offering evidence that demonstrate the crime was more
likely committed by someone else. For example, after being convicted of his
parents’ murder in 1990 based primarily on a confession, Marty
Tankleff was exonerated in 2007 after his defense team uncovered
substantial evidence that Jerry Steuerman (a business parter of Marty’s father)
had hired hitmen to murder the Tankleffs. Seeking an exoneration in this manner
requires a judge agree with the defense team – which can be difficult.
In fact,
just because an error was made does not mean an exoneration is guaranteed. In
some cases, the mistake fall under the “harmless error doctrine,” which says
that just because a mistake was made does not require a new trial or acquittal.
In 1991, the Supreme Court decided that even if a confession was coerced, it
can be considered a harmless error1. That is, just because the jury
decided guilty after hearing a confession that was obtained by coercing a
defendant does not require the defendant be retried or acquitted. Instead,
that’s left up to the judge to decide. While this decision may not stand up to
logical scrutiny (surely, hearing a confession would affect how the jury’s
decision), it falls to a defense team to argue that such mishandling of a
confession affected the case. In some cases,
the defense is successful – Adrian Thomas, who we mentioned in
our post on obedience to authority – was granted a new trial where he was
acquitted after the New York Supreme Court decided his coerced confession
unfairly led to his original conviction.
For
researchers, the importance between “innocent” and “not guilty” is important as
well. As
we discussed, we sometimes look to real life cases for research ideas. By
looking at examples of mistakes in the justice system, we can research why those
mistakes happen and try to prevent them from happening again.
But we like to be
sure that these cases are, in fact, mistakes. Although legal research broadly
works to improve the legal process (that is, making sure that the rules are
fair and fairly applied), we do want to make sure that innocent people are
found not guilty and the true
perpetrator is found guilty. As such, we like to focus on investigating the
cases where we know ground truth – whether the defendant is truly innocent.
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"Despite the lack of DNA evidence, no defense attorney was willing to say, with a straight face, that the defendant DEFINITELY did not destroy the teddy bear." |
This focus
has two main benefits. First, we generally do not want to advocate for
defendants that committed the crime; if we assume that someone is innocent, but
it turns out they are guilty, that can undermine our credibility. As such, it
is rare that the research community gets behind a defendant that is not proven
factually innocent. Second, if we know ground truth, then we can be confident
that something went wrong in that case and investigate the problems. If we know
the defendant was wrongfully convicted, we can be confident that at least one
mistake was made along the way – and put our time into finding what the mistake
was******.
Many of
the eyewitness errors that can lead to wrongful convictions have been uncovered
in this way. For example, Ronald Cotton (whose case we
discussed previously in the context of eyewitness lineups) was exonerated
after his DNA did not match the DNA evidence in Jennifer Thompson’s rape kit.
Because we know that he was innocent, we are able to go back and look at his
case and find ways in which mistakes were made. Cotton’s case offers real-world
examples of the types of problems in lineups that can distort eyewitness memory
– problems that have been confirmed by empirical research.
Ultimately,
we want being innocent to lead to verdicts of “not guilty.” Yet because we are
rarely able to know exactly what happened in a crime, combined with human
mistakes and biases, an innocent person is not always found “not guilty.”
Wrongful convictions, clearly carry personal and society costs, but do provide
us the opportunity to learn about, and eventually prevent, the causes of
wrongful convictions in the future. By logical requirement, we tend to focus on
the cases where we know that the defendant is factually innocent, rather than
merely “not guilty,” to study wrongful convictions, which is why DNA evidence
has been so helpful in improving psychology and law research and legal
practices.
This post
was written by Will Crozier and Timothy Luke.
Notes
* We’re
focusing on the criminal justice system in the United States in this post.
Other countries have different systems, some of which have different methods of
establishing facts and different possible verdicts.
** Will is
sometimes this person, and has said this many times.
*** There
are numerous situations in which police are not required to inform suspects of
their rights. The case law on Miranda warnings is extensive and complicated.
**** The
Radiolab podcast episode “The Buried Bodies Case” covers a case that shows both
sides of the potentially “slimy” role of a defense attorney. When Robert Garrow
is on trial for murdering hikers whose bodies were never recovered, Garrow’s
defense attorney requests a lenient plea deal in exchange for the location of
the missing bodies. When the prosecution denied the request, the location of the
bodies was never revealed. While some found the defense attorney’s actions
reprehensible delaying the hikers’ families closure, others commend the
attorney for doing exactly what the adversarial justice system requires –
representing his client’s best interest at all times. You can download the
episode here https://www.wnycstudios.org/story/the_buried_bodies_case/
***** The
term “gold standard of evidence” was used in a National Academy of Sciences report
on forensic science:
National
Academy of Sciences. (2009). Strengthening
forensic science in the United States: A path forward. Washington, DC:
National Academies Press.
DNA isn’t
foolproof, though. Complex mixtures of DNA can be difficult to identify, and
mishandling of physical evidence can easily render DNA evidence useless.
******
Although a substantial amount of attention is given to wrongful convictions, we
also sometimes look to cases in which systems functioned properly or in an
exemplary manner. With these kinds of examples, we can attempt to study what went
right and provide practitioners with
recommendations.
References
[1] Arizona
v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).
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