The study of wrongful convictions has a long history in America. For more than eight decades, writers—mostly lawyers, journalists, and activists—have documented numerous convictions of the innocent and described their causes and consequences (Borchard, 1932; Radin, 1964; Scheck, Neufeld & Dwyer, 2000). Yet only recently, after many years of neglect, has a critical mass of social scientists emerged to research the problem (Leo, 2005; Forst, 2004; Westervelt and Humphrey, 2001). This heightened scholarly interest is undoubtedly related to technological and political developments. With the advent of DNA technology and its application to criminal cases, numerous prisoners have been exonerated in the past decade after many years of unjust incarceration, sometimes on death row (Scheck et al., 2000). DNA testing has transformed our understanding and consciousness of the fallibility of human judgment in the criminal justice system by demonstrating with certainty that errors have been committed repeatedly. In the past decade, there have been more newspaper stories, magazine articles, and television documentaries on the plight of the wrongfully convicted than ever before (Warden 2003b). As a result, there is greater recognition across the political spectrum that the wrongful conviction of the innocent is a real and ongoing problem.
The study of miscarriages of justice in America began with Edwin Borchard’s pioneering book, Convicting the Innocent (1932). Challenging the conventional wisdom that innocent people are never convicted in the United States, Borchard detailed sixty-five cases in which innocent individuals were wrongfully prosecuted, convicted, and incarcerated. Borchard shifted the research question from whether innocent individuals are wrongfully convicted to why and what can be done about it. Borchard identified a number of causes of wrongful conviction—e.g., eyewitness misidentification, perjured testimony, and police and prosecutorial misconduct—as well as policy solutions to the problem. Subsequent empirical studies have elaborated on the multiple causes of wrongful conviction first identified by Borchard (Frank and Frank, 1957; Radin, 1964; Bedau and Radelet, 1987). In all of these studies, false confessions have featured prominently as one of the leading causes. To a large extent, Borchard’s pioneering study set the template that empirical studies of miscarriages of justice would follow for many years to come. Borchard’s book was primarily descriptive rather than analytical, however.
Until the late 1980s, there was no systematic, social-scientific study of the causes, patterns, and consequences of miscarriages of justice in America. This changed with Hugo Bedau and Michael Radelet’s (1987) landmark study, “Miscarriage of Justice in Potentially Capital Cases,” published in the Stanford Law Review. Identifying 350 wrongful convictions in potentially capital cases in America from 1900 to 1987, Bedau and Radelet analyzed the causes of these errors, the reasons they were discovered, and the number of innocents who had been executed. Significantly, Bedau and Radelet found that false confessions played a causal role in 49 of the 350 miscarriages of justice, or approximately 14 percent.
Bedau and Radelet’s article contributed the largest and most compelling data set on wrongful convictions. That at least 350 people have been wrongfully convicted of potentially capital crimes in the twentieth century is highly disturbing, if not downright horrifying. Approximately 90 percent of them were officially declared innocent after their convictions. Thus, even if one disputes Bedau and Radelet’s conclusion in any particular case, it would be difficult to meaningfully dispute the larger pattern of their findings.
Following their influential article, the 1990s were a period of renewed study of miscarriages of justice. Lawyers and scholars published a number of books (Yant, 1991; Connery, 1996; Walker and Starmer, 1999) and articles on the topic. While most were in the Borchard tradition of case description and policy prescription (Fisher, 1996; Humes, 1999; Parloff, 1996; Protess and Warden, 1998), they called attention to old issues in new ways (or at least with newer cases) and laid the groundwork for the biggest and potentially most important development yet in the study of miscarriages of justice—the advent of DNA testing and its application to criminal investigation.
DNA testing has been particularly important in postconviction cases in which a defendant had long claimed that his conviction was erroneous and when biological evidence remained which could be used to conclusively test his claim. DNA testing has proven wrongful convictions in scores of cases, including capital cases (Scheck et al., 2000). Edward Connors, Thomas Lundregan, Neil Miller, and Tom McEwen’s (1996) study was the earliest statement of the ability of DNA testing to conclusively establish the fact of wrongful convictions. They examined twenty-eight wrongful convictions in which DNA testing subsequently established the prisoner’s innocence; approximately 18 percent of the convictions were attributable to false confessions.
Since publication of the Connors study, DNA testing has become increasingly sophisticated, and many other wrongfully convicted individuals have been exonerated and released from prison (www.innocenceproject.org). Barry Scheck and Peter Neufeld, co-founders of the Innocence Project at Cardozo School of Law, and others have worked on cases in which DNA testing has led to the release of wrongfully convicted prisoners. As of 2000, sixty-two innocent people had been exonerated by DNA evidence (Scheck et al., 2000); fifteen of those cases (or 24 percent) involved false confessions. By December of 2006, 188 wrongly convicted prisoners had been exonerated and released; 45 of these wrongful convictions (again 24 percent) were caused by false confessions (www.innocenceproject.org).
The advent of DNA testing and the window it opened onto the errors of the legal system has permanently altered the nature and study of miscarriages of justice in America. Most importantly, DNA testing has established factual innocence with certainty in so many postconviction cases that it has become widely accepted, in just a few short years, that wrongful convictions occur with troubling regularity in the American criminal justice system, despite our high-minded ideals and the numerous constitutional rights that are meant to safeguard the innocent. It is one thing for Bedau and Radelet (1987) to argue, based on their judgment of the totality of facts and documentary record in individual cases, that hundreds of innocent individuals have been wrongfully convicted and incarcerated; it is quite another thing for DNA testing to establish prisoners’ factual innocence in case after case. More than at any time since publication of Borchard’s book in 1932, the problem has been defined as not whether or how frequently miscarriages of justice occur, but why they occur so frequently and what can be done to prevent and remedy them.
In recent years, studies by Leo and Ofshe (1998a, 2001), Scheck, Neufeld, and Dwyer (2000), Warden (2003a), Drizin and Leo (2004), and Gross et al. (2005), as well as the ongoing database of DNA exonerations catalogued by the Innocence Project, have systematically documented and analyzed numerous wrongful convictions and false confessions. In these studies, the percentage of miscarriages of justice involving false confessions range from 14 to 60 percent. These modern studies thus establish, once again, the problem of false confessions remains a leading cause of the wrongful conviction of the innocent. As Welsh White (2001: 185) has pointed out, “as soon as a police-induced false confession is accepted as true by the police, the risk that the false confession will lead to a wrongful conviction is substantial.”