![Sample our Social Sciences journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/110822/TOC-Subject-Sample-2021-Social-Sciences.jpg"})
![Editing Services Awareness English-speaking]({"type":"image" , "src" : "/sda/110148/ED-Services-English.jpg"})
![SDG Online Goal 4: Quality Education. Request a free trial today]({"type":"image" , "src" : "/sda/110751/JournalAd-Resources-SDGO-4-2021.png"})
Abstract
The American criminal justice system creates incentives for false conviction. For example, many public crime labs are funded in part per conviction. We show that the number of false convictions per year in the American criminal justice system should be considered “high.” We examine the incentives of police, forensic scientists, prosecutors, and public defenders in the U.S. Police, prosecutors, and forensic scientists often have an incentive to garner convictions with little incentive to convict the right person. These incentives create what economists call a “multitask problem” that seems to be resulting in a needlessly high rate of false convictions. Public defenders lack the resources and incentives needed to provide a vigorous defense for their clients. Corrective measures are discussed, along with a call for more research.
Notes
[We thank David Friedman, Richard A. Posner, Michael Risinger, Michael Saks, and William C. Thompson for helpful comments on earlier drafts. We thank Jonathan Jacobs for encouragement and for many suggestions that greatly improved our exposition.]
1. Michael Risinger, “Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate,” Journal of Criminal Law and Criminology 97 (2007): 761–806.
2. William J. Stuntz, The Collapse of American Criminal Justice (Cambridge, MA: Belknap Press of Harvard University Press, 2011), 7.
3. Rachel Barkow, “Prosecutorial Administration,” New York University Public Law and Legal Theory Working Papers, Paper 345 (New York: New York University School of Law, 2012), 37–8.
4. We do not address, for example, the incentives of judges or the incentives created by civil and criminal forfeiture or by federal grants to law enforcement agencies. Nor do we consider the role of jurors, who are important actors in the system, but not criminal-justice professionals. We might note in passing, however, that juries and jury deliberations do not seem to offer a significant counterweight to the pro-conviction bias we identify in this paper. The literature on the “CSI effect,” for example, seems to suggest that the effect tends to be pro-prosecution on net. See Deborah R. Baskin and Ira B. Sommers, “Crime-Show-Viewing Habits and Public Attitudes Toward Forensic Evidence: The ‘CSI Effect’ Revisited,” Justice System Journal 31, no. 1 (2010): 97–113; Simon Cole, “More Than Zero: Accounting for Error in Latent Fingerprint Identification,” Journal of Criminal Law & Criminology 95 (2005): 985–1078; Kimberlianne Podlas, “‘The CSI Effect’: Exposing the Media Myth,” Fordham Intellectual Property, Media & Entertainment Law Journal 429 (2006): 429–65.
5. We were alerted to the issue by Wickenheiser's business analysis of the Acadiana Crime Lab, in which he remarks, “Collection of court costs is the only stable source of funding for the Acadiana Crime Lab.” Ray Wickenheiser, “The Business Case for Using Forensic DNA Technology to Solve and Prevent Crime,” Journal of Biolaw and Business 7 (2004): 3.
6. As we will note, a fifteenth state, North Carolina, sends lab fees to the law enforcement agency containing the lab without specifying that they go to the lab.
7. These court-assessed fees are an example of legal financial obligations (LFOs), which have been criticized for being inappropriately burdensome and for making the re-entry of convicted persons back into society more difficult. See Rebekah Diller, The Hidden Costs of Florida's Criminal Justice Fees (New York: Brennan Center for Justice at New York University School of Law, 2010). The literature on LFOs does not seem to include studies of the incentives they may provide to generate convictions.
8. The logic of technique absorption describes what happened with DNA typing. The correctness of some convictions reached in the years prior to DNA typing could be (imperfectly) tested with DNA typing. But the technique was fairly quickly absorbed by the system and absorption probably made the system better. (Independent DNA analysis has been used, however, as an external measure to identify false convictions based on mistaken DNA analysis.)
9. Sam Peltzman, “The Effects of Automobile Safety Regulations,” Journal of Political Economy 83 (1975): 677–726. It might seem obvious that technique absorption could only improve the system. But we do not think we can exclude the possibility that behavioral phenomena such as “compensating behavior” may wipe out most or all of the benefits of absorbing a given technique. As long as criminal-justice professionals have discretion and the incentive to produce convictions independently of guilt, there is a risk of false conviction. It seems too optimistic to hope for a technological cure for an institutional problem. See also http://thinkmarkets.wordpress.com/2008/12/06/the-technical-obsolescence-of-forensic-fraud/.
10. Bruce Weber, As They See 'em: A Fan's Travels in the Land of Umpires (New York: Scribner, 2009), 26.
11. Samuel R. Gross et al., “Exonerations in the United States: 1989 Through 2003,” Journal of Criminal Law and Criminology 95 (2005): 551.
12. Joshua Marquis, “The Innocent and the Shammed,” The New York Times, January 26, 2006.
13. Kansas v. Marsh, 548 U.S. 163: 198 (2006).
14. Kansas v. Marsh, 548 U.S. 163: 198 (2006).
15. Steve Mills and Maurice M. Possley, “Texas Man Executed on Disproved Forensics: Fire that Killed His 3 Children Could Have Been Accidental,” Chicago Tribune, December 9, 2004, http://www.chicagotribune.com; Willingham v. State, 897 S.W.2d. 351 (Tex.Crim. App. 1995); David Grann, “Trial by Fire,” The New Yorker, September 7, 2009, http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann?currentPage¼all.
16. Beyler, Craig L. “Analysis of the Fire Investigation Methods and Procedures Used in the Criminal Arson Cases Against Ernest Ray Willis and Cameron Todd Willingham,” 17 August 2009 at p. 51. Beyler's report can be found as Exhibit 7 to Report of the Texas Forensic Science Commission: Willingham/Willis Investigation, Apr. 14, 2011, available at http://www.fsc.state.tx.us/documents/FINALpdf; Gerald Hurst, “Ex Parte Report of Dr. Gerald Hurst for Cameron Todd Willingham in the District Court, 366th Judicial District, Navarro County, Texas” (2004).
17. Kansas v. Marsh, 199.
18. Mills and Possley, “Texas Man Executed on Disproved Forensics.”
19. Death Penalty Information Center, http://www.deathpenaltyinfo.org/executed-possibly-innocent (accessed September 22, 2011).
20. Risinger, “Innocents Convicted,” 761–806.
21. Non-DNA exonerations are often based on the same factors that lead to wrongful convictions, such as unreliable eyewitness testimony and false confessions. Daniel Medwed, “Up the River without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts,” Arizona Law Review 47 (2005): 655–718. Risinger's estimate does not include exonerations based on non-DNA scientific evidence.
22. Risinger, “Innocents Convicted,” 785.
23. Risinger, “Innocents Convicted,” 785.
24. Risinger, “Innocents Convicted,” 783.
25. Risinger, “Innocents Convicted,” 784.
26. Risinger, “Innocents Convicted,” 780–2.
27. Stuntz, Collapse of American Criminal Justice, 317, n.2.
28. Gross et al., “Exonerations in the United States,” 534.
29. Anna Gorman, “For Some, It's Too Late to Overturn Convictions,” Los Angeles Times, May 19, 2002, http://articles.latimes.com/print/2002/may/19/local/me-convict19. Currently, there is no legislation that requires judges to review convictions of former inmates who are no longer incarcerated or no longer serving a sentence of probation or parole.
30. Gross et al., “Exonerations in the United States,” 534.
31. Gross et al., “Exonerations in the United States,”, 534–5.
32. “Deputy Pleads Innocent to Perjury Charges,” June 26, 2003, Associated Press. Editorial, “Are They Learning?” The New York Times Sunday Review, July 16, 2011, http://www.nytimes.com/2011/07/17/opinion/sunday/17sun2.html?_r=2.
33. Sarah McCabe and Robert Purves, The Shadow Jury at Work (Oxford: Blackwell for the Oxford University Penal Research Unit, 1974), 18–19. The two juries disagreed on one in four cases. In each such case one jury was right and the other wrong, making the average error rate half of one in four, i.e., one in eight.
34. Roger Koppl, “Experts and Information Choice,” Advances in Austrian Economics, 17 (2012): 171–202.
35. Bruce Budowle et al., “A Perspective on Errors, Bias, and Interpretation in the Forensic Sciences and Direction for Continuing Advancement,” Journal of Forensic Sciences, 54 (2009): 799.
36. Much of the discussion in this section uses language found also in Koppl, “Experts and Information Choice,” 184–90.
37. Ulrich Neisser, Cognition and Reality: Principles and Implications of Cognitive Psychology (San Francisco: W. H. Freeman, 1976), 43, as quoted in Michael Risinger et al., “The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestions,” California Law Review 90 (2002): 14.
38. Risinger et al., “Daubert/Kumho Implications,” 24–6.
39. Risinger et al., “Daubert/Kumho Implications,” 24.
40. See, for example, Cole, “More than Zero,” 1064.
41. As translated from Caesar's Commentaries on the Gallic War in Risinger et al., “Daubert/Kumho Implications,” 6.
42. As translated from Caesar's Commentaries on the Gallic War in Risinger et al., “Daubert/Kumho Implications,” 6.
43. As translated from Caesar's Commentaries on the Gallic War in Risinger et al., “Daubert/Kumho Implications,” 13.
44. As translated from Caesar's Commentaries on the Gallic War in Risinger et al., “Daubert/Kumho Implications,” 22–6.
45. James W. Pichert and Richard C. Anderson, “Taking Different Perspectives on a Story,” Journal of Educational Psychology 69 (1977): 309–15.
46. Richard Anderson and James W. Pichert, “Recall of Previously Unrecallable Information Following a Shift in Perspective,” Journal of Verbal Learning and Verbal Behavior 17 (1978): 1–12; Richard C. Anderson , James W. Pichert, and Larry L. Shirey, “Effects of Reader's Schema at Different Points in Time,” Journal of Educational Psychology 75 (1983): 271–9.
47. Anderson et al., “Effect of Reader's Schema, 274–5.
48. Itel Dror and David Charlton, “Why Experts Make Errors,” Journal of Forensic Identification 56 (2006): 600–16.
49. Itel Dror and David Charlton, “Why Experts Make Errors,” Journal of Forensic Identification 56 (2006): 600–16.
50. Bengt Holmstrom and Paul Milgrom, “Multitask Principal-agent Analyses: Incentive Contracts, Asset Ownership, and Job Design,” Journal of Law, Economics, and Organization 7, special issue (1991): 24–52.
51. Stephen A. Ross, “The Economic Theory of Agency: The Principal's Problem,” American Economic Review 63 (1973): 134–9.
52. Examples are provided in the paragraphs that follow.
53. Holmstrom and Milgrom, “Multitask Principal-agent Analyses,” 25.
54. Gary Putka, “Classroom Scandal: Cheaters in Schools May not Be Students, but Their Teachers,” Wall Street Journal, November 2, 1991, cited in Holstrom and Milgrom, “Multitask Principal-agent Analyses,” 25, n.3.
55. Heather Vogell, “Investigators into APS Cheating Finds Unethical Behavior cross Every Level,” Atlanta Journal-Constitution, July 6, 2011, http://www.ajc.com/news/investigation-into-aps-cheating-1001375.html.
56. Heather Vogell, “Investigators into APS Cheating Finds Unethical Behavior cross Every Level,” Atlanta Journal-Constitution, July 6, 2011, http://www.ajc.com/news/investigation-into-aps-cheating-1001375.html.
57. Heather Vogell, “Investigators into APS Cheating Finds Unethical Behavior cross Every Level,” Atlanta Journal-Constitution, July 6, 2011, http://www.ajc.com/news/investigation-into-aps-cheating-1001375.html.
58. Heather Vogell, “Investigators into APS Cheating Finds Unethical Behavior cross Every Level,” Atlanta Journal-Constitution, July 6, 2011, http://www.ajc.com/news/investigation-into-aps-cheating-1001375.html.
59. D. Zucchino, “Duke Case Worsens for Prosecution,” Los Angeles Times, December 16, 2006, http://www.latimes.com/news/nationworld/nation/la-na-duke16dec16,1,7339197.story?coll=la-headlines-nation&ctrack=1&cset=true.
60. A. V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (1915; repr., Indianapolis: Liberty Classics, 1982); Richard H. Fallon, “ ‘The Rule of Law’ as a Concept in Constitutional Discourse,” Columbia Law Review 97, no. 1 (1997): 1–56.
61. Dicey, Introduction to the Study of Law, 120.
62. We note that limiting discretion of criminal justice professionals is not without its problems as well. For example, backlash against failed rehabilitation policies of the 1960s and 1970s and evidence of sentencing disparities led to the shift away from indeterminate sentencing, where judges had wide latitude in sentencing, towards determinate sentencing, where judicial decisions are restricted by mandatory sentences and fixed sentencing guidelines. Changes in sentencing policies that limited judicial discretion led to an explosion in prison growth in the United States; the collateral consequences of which have been well documented by scholars in the field. See Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (Washington, DC: Urban Institute, 2005); Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006).
63. Geoffrey P. Alpert and Mark H. Moore, “Measuring Police Performance in the New Paradigm in Policing,” in Performance Measures for the Criminal Justice System (Washington, DC: Bureau of Justice Statistics, 1993); Paul-Philippe Pare, Richard Felson, and Marc Quimet, “Community Variation in Crime Clearance: A Multi-Level Analysis with Comments on Assessing Police Performance,” Journal of Quantitative Criminology 23 (2007): 243–58.
64. Jean Paul Brodeur, How to Recognize Good Policing: Problems and Issues (Washington, DC: Police Executive Research Forum, 1998); Mark Moore and Anthony Braga, The “Bottom Line” of Policing: What Citizens Should Value (and Measure!) in Police Performance (Washington, DC: Police Executive Research Forum, 2003).
65. David Bayley, Police for the Future (New York: Oxford University Press, 1994); Wesley Skogan et al., On the Beat: Police and Community Problem Solving (Boulder: Westview Press, 1999).
66. Alpert and Moore, “Measuring Police Performance”; Mark Moore and Margaret Poethig, “The Police as an Agency of Municipal Government: Implications for Measuring Police Effectiveness,” in Measuring What Matters, ed. Robert Langworthy (Washington, DC: National Institute of Justice, 1999), 151–67.
67. Richard A. Posner, “From the New Institutional Economics to Organization Economics: With Applications to Corporate Governance, Government Agencies, and Legal Institutions,” Journal of Institutional Economics 6 (2010): 1–37, 22.
68. Richard A. Posner, “Reply to Comments,” Journal of Institutional Economics 6 (2010): 139–43, 140.
69. William Rashbaum, “West Side Crime Statistics Were Softened, Police Say,” The New York Times, June 20, 2003, B5; P. Moses, “Something's Missing: Crime Stat Revelation,” Village Voice, December 20, 2005, 1.
70. Empirical studies have also found evidence of manipulation of crime statistics by NYPD officers. John A. Eterno and Eli B. Silverman, “The New York City Police Department's COMPSTAT: Dream or Nightmare?”, International Journal of Police Science and Management 8 (2006): 218–31; John A. Eterno and Eli B. Silverman, “The NYPD's Compstat: Compare Statistics or Compose Statistics?” International Journal of Police Science and Management 12 (2010): 426–49.
71. Robert Zink, “The Trouble with Compstat,” PBA Magazine, 2004, http://www.nycpba.org/publications/mag-04-summer/compstat.html (accessed October 2, 2011).
72. Graham Rayman, “The NYPD Tapes: Inside Bed-Stuy's 81st Precinct,” Village Voice, May 4, 2010, http://www.villagevoice.com/content/printVersion/1797847/.
73. Graham Rayman, “The NYPD Tapes: Inside Bed-Stuy's 81st Precinct,” Village Voice, May 4, 2010, http://www.villagevoice.com/content/printVersion/1797847/.
74. Graham Rayman, “The NYPD Tapes: Inside Bed-Stuy's 81st Precinct,” Village Voice, May 4, 2010, http://www.villagevoice.com/content/printVersion/1797847/.
75. Graham Rayman, “The NYPD Tapes: Inside Bed-Stuy's 81st Precinct,” Village Voice, May 4, 2010, http://www.villagevoice.com/content/printVersion/1797847/.
76. Eterno and Silverman, “NYPD's Compstat,” 426–9.
77. Nick Davies, “Watching the Detectives: How the Police Cheat in Fight Against Crime,” Guardian, March 8, 1999, 3.
78. Robert C. Davis, “Introduction: The Use of Policing Indicators in the Developing World,” International Journal of Police Science and Management 12 (2009): 140–54; Wesley Skogan and Susan Hartnett. Community Policing, Chicago Style (New York: Oxford University Press, 1997).
79. Richard A. Wise, Kirsten A. Dauphinais, and Martin A. Safer, “A Tripartite Solution to Eyewitness Error,” Journal of Criminal Law and Criminology 97 (2007): 807–71.
80. Saul M. Kassin and Gisli H. Gudjonsson, “The Psychology of Confessions: A Review of the Literature and Issues,” Psychological Sciences in the Public Interest 5 (2004): 33–67.
81. Dianne Martin, “Lessons About Justice From the Laboratory of Wrongful Convictions: Tunnel Vision, The Construction of Guilt, and Informer Evidence,” UMKC Law Review 7 (2002): 848.
82. Richard J. Ofshe and Richard A. Leo, “The Decision to Confess Falsely: Rational Choice and Irrational Action,” Denver University Law Review 74 (1997): 979–1122.
83. Richard A. Leo and Deborah Davis, “From False Confession to Wrongful Conviction: Seven Psychological Processes,” Journal of Psychiatry and Law 38 (2010): 9–56.
84. Kassin and Gudjonsson, “Psychology of Confessions,” 33–67.
85. Kassin and Gudjonsson, “Psychology of Confessions,” Aldert Vrij, “Why Professionals Fail to Catch Liars and How They Can Improve,” Legal and Criminological Psychology 9 (2004): 159–81.
86. Vrij, “Why Professionals Fail,” 159–81; C. F. Bond, Jr. and B. M. DePaulo, “Accuracy of Deception Judgments,” Personality and Social Psychology Review 10 (2006): 214–34.
87. Kassin and Gudjusson, “Psychology of Confessions”, 33–67; Steven A. Drizin and Richard A. Leo, “The Problem of False Confessions in the Post DNA World,” North Carolina Law Review 3 (2004): 891–1008.
88. Ofshe and Leo, “Decision to Confess Falsely,” 979–1122.
89. Ofshe and Leo, “Decision to Confess Falsely,” Saul M. Kassin, “The Psychology of Confession Evidence,” American Psychologist 52 (1997): 221–33; Saul M. Kassin, “On the Psychology of Confessions: Does Innocence Put Innocents at Risk?” American Psychologist 60 (2005): 215–28.
90. Carolyn Semmler, Neil Brewer, and Gary L. Wells, “Effects of Postidentification Feedback on Eyewitness Identification and Nonidentification Confidence,” Journal of Applied Psychology 89 (2004): 334–46.; Gary L. Wells and Amy L. Bradfield, “ ‘Good, You Identified the Suspect’: Feedback to Eyewitness Distorts Their Reports of the Witnessing Experience,” Journal of Applied Psychology 83 (1998): 360–76; Gary Wells and Elizabeth A. Olson, “Eyewitness Testimony,” Annual Review of Psychology 54 (2003): 277–95.
91. Wells and Olson, “Eyewitness Testimony,” 277–95.
92. Gary Wells, Amina Memon, and Steven D. Penrod, “Eyewitness Evidence: Improving its Probative Value,” Psychological Science in the Public Interest 7 (2006): 45–75.
93. Gary Wells, Amina Memon, and Steven D. Penrod, “Eyewitness Evidence: Improving its Probative Value,” Psychological Science in the Public Interest 7 (2006): 45–75.
94. Richard A. Wise, Clifford S. Fishman, and Martin A. Safer, “How to Analyze the Accuracy of Eyewitness Testimony in a Criminal Case,” Connecticut Law Review 42 (2009): 435–513.
95. Amy Klobuchar, Nancy Steblay, and Hilary L. Caligiuri, “Symposium: Reforming Eyewitness Identification: Convicting the Guilty, Protecting the Innocent: Improving Eyewitness Identifications: Hennepin County's Blind Sequential Lineup Pilot Project,” Cardozo Public Law, Policy and Ethics Journal 4 (2006): 381–413; Sheri Mecklenburg, Report to the Legislature of the State of Illinois: The Illinois Pilot Program on Double-Blind, Sequential Lineup Procedures (Springfield: Illinois State Police, 2006); Daniel Schacte et al., “Policy Forum: Studying Eyewitness Investigations in the Field,” Law and Human Behavior 32 (2007): 3–5.
96. Sheri Lynn Johnson, “Cross-racial Identification Errors in Criminal Cases,” Cornell Law Review 69 (1984): 934–87.
97. A few passages in this section borrow from Roger Koppl, “Organization Economics Explains Many Forensic Science Errors,” Journal of Institutional Economics 6 (2010): 71–81.
98. Risinger, “Daubert/Kumho Implications,” 1–56; Roger Koppl, “How to Improve Forensic Science,” European Journal of Law and Economics 20 (2005): 255–86; Committee on Identifying the Needs of the Forensic Science Community, National Research Council, Strengthening Forensic Science in the United States: A Path Forward (Washington, DC: National Academies Press, 2009).
99. Presumably, outright fraud in forensic science is rare. Unfortunately, some examples do exist; see Kelly M. Pyrek, Forensic Science Under Siege: The Challenges of Forensic Laboratories and the Medico-Legal Investigation System (Amsterdam: Elsevier, 2007).
100. William C. Thompson, “Painting the Target Around the Matching Profile: The Texas Sharpshooter Fallacy in Forensic DNA Interpretation,” Law, Probability and Risk 8 (2009): 257–76; William C. Thompson and Simon A. Cole. “Psychological Aspects of Forensic Identification Evidence,” in Expert Psychological Testimony for the Courts, ed. M. Costanzo, D. Krauss, and K. Pezde (Mahwah: Erlbaum, 2007), 31–68; Risinger et al., “Daubert/Kumho Implications,” 1–56.
101. Committee on Identifying the Needs of the Forensic Science Community, National Research Council, Strengthening Forensic Science, S-9.
102. Committee on Identifying the Needs of the Forensic Science Community, National Research Council, Strengthening Forensic Science, 6-2.
103. Committee on Identifying the Needs of the Forensic Science Community, National Research Council, Strengthening Forensic Science, S-15.
104. R. G. Nichols, “Defending the Scientific Foundations of the Firearms and Toolmark Identification Discipline: Responding to Recent Challenges,” Journal of Forensic Sciences 52 (2007): 587.
105. U.S. Department of Justice, Office of the Inspector General, Oversight and Review Division, A Review of the FBI's Handling of the Brandon Mayfield Case: Unclassified and Redacted (Washington, DC: U.S. Department of Justice, 2006), http://www.usdoj.gov/oig/special/s0601/final.pdf.
106. Cole, “More than Zero,” 985–1078; Committee on Identifying the Needs of the Forensic Science Community, National Research Council, Strengthening Forensic Science; Joy Williams, Administrative Review PC-07-0018, Seminole County Sheriff's Office, June 4, 2007; Joel Rubin and Richard Winton, “LAPD Finds Faulty Fingerprint Work,” Los Angeles Times, October 17, 2008, http://articles.latimes.com/2008/oct/17/local/me-fingerprints17.
107. Thompson and Cole, “Psychological Aspects of Forensic Identification Evidence,” 34.
108. Thompson and Cole, “Psychological Aspects of Forensic Identification Evidence,” 34.
109. Thompson and Cole, “Psychological Aspects of Forensic Identification Evidence,” 34.
110. Koppl, “How to Improve Forensic Science.”
111. Committee on Identifying the Needs of the Forensic Science Community, National Research Council, Strengthening Forensic Science, S-8; Paul Giannelli, “Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World,” Cornell Law Review 89 (2004): 1305–419.
112. Committee on Identifying the Needs of the Forensic Science Community, National Research Council, Strengthening Forensic Science, 6-2.
113. John F. Kelly and Phillip Wearne, Tainting Evidence: Inside the Scandals at the FBI Crime Lab (New York: Free Press, 1998) 15–16.
114. John F. Kelly and Phillip Wearne, Tainting Evidence: Inside the Scandals at the FBI Crime Lab 17.
115. Bruce Budowle, J. Buscaglia, and R. S. Perlman, “Review of the Scientific Basis for Friction Ridge Comparisons as a Means of Identification: Committee Findings and Recommendations,” Forensic Science Communications 8 (2006), http://www.fbi.gov/hq/lab/fsc/backissu/jan2006/research/2006_01_research02.htm.
116. Bruce Budowle, J. Buscaglia, and R. S. Perlman, “Review of the Scientific Basis for Friction Ridge Comparisons as a Means of Identification: Committee Findings and Recommendations,” Forensic Science Communications 8 (2006); Giannelli provides several examples of crime labs or individual forensic scientists who seem to have been led into error in part because of a feeling of identification with the police. See Paul Giannelli, “The Abuse of Evidence in Criminal Cases: The Need for Independent Crime Laboratories,” Virginia Journal of Social Policy and the Law 4 (1997): 442–62.
117. Wickenheiser, “Business Case for Using DNA Technology, 3.
118. Evan A. Lukic, BSO Crime Lab Review, Report 09-13, Office of the County Auditor, June 18, 2009, http://www.broward.org/Auditor/Documents/crimelab_final.pdf.
119. North Carolina General Statutes, Chapter 7a, § 8a-304.
120. Illinois Compiled Statutes, Chapter 730, §§§ 5/5-4-3, 5/5-9-1.4, 5/5-9-1.9.
121. Mississippi Code Annotated, §§§ 97-3-49, 97-17-13, 879-3-49.
122. See Idaho State Police Department of Planning, Grants and Research, Forensic Funding Alternatives: Criminal Justice Opinion Survey, 2008, http://www.jrsa.org/pubs/sac-digest/documents/idaho-forsensicsurvey.pdf (accessed October 9, 2008); Alabama Code, sections 36-18-7, 36-18-8, 36-18-36.
123. Revised Code of Washington, Title 43, § 43.43.690.
124. Kansas Statutes Annotated, Chapter 28, § 28-176.
125. Arizona Revised Statutes, Title 41, § 41-2421; California Government Code, § 76104; Missouri Annotated Statutes, Chapter 488, § 488-29; Tennessee Code Annotated, § 39-17-420; and Wisconsin Code, Chapter 973, § 973.05.
126. Glen Whitman and Roger Koppl, “Rational Bias in Forensic Science,” Law, Probability, and Risk 9 (2010): 79.
127. Glen Whitman and Roger Koppl, “Rational Bias in Forensic Science,” Law, Probability, and Risk 9 (2010): 75.
128. American Bar Association, Comment on Rule 3.8, http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_8_special_responsibilities_of_a_prosecutor/comment_on_rule_3_8.html (accessed October 9, 2011).
129. Coolidge v. New Hampshire, 403 U.S. 443 (1971).
130. Judith A. Goldberg and David M. Siegel, “The Ethical Obligations of Prosecutors in Cases Involving Post-Conviction Claims of Innocence,” California Western Law Review 38 (2002): 389–412; Daniel Medwed, “The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence,” Boston University Law Review 84 (2004): 125–84; Daniel Medwed, “The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-Conviction Pulpit,” Washington Law Review 84 (2009): 35–66.
131. Keith A. Findley and Michael S. Scott, “The Multiple Dimensions of Tunnel Vision in Criminal Cases,” Wisconsin Law Review 2 (2006): 291–397.
132. Keith A. Findley and Michael S. Scott, “The Multiple Dimensions of Tunnel Vision in Criminal Cases,” Wisconsin Law Review 2 (2006): 291–397.
133. John Paul Stevens, Speech presented at the Equal Justice Initiative Honoring Justice Stevens, New York, May 2, 2011; Connick v. Thompson, No. 09-571 (March 29, 2011).
134. Jane C. Moriarity, “ ‘Misconvictions,’ Science, and the Minister of Justice,” Nebraska Law Review 86 (2008): 23.
135. Erwin Chemerinsky, “The Role of Prosecutors in Dealing with Police Abuse: The Lessons of Los Angeles,” Virginia Journal of Social Policy and the Law 8 (2001): 305–27; Erik Luna, “System Failure,” American Criminal Law Review 42 (2005): 1201–18.
136. Medwed, “Zeal Deal,” 135.
137. Jessica Fender, “DA Chambers Offers Bonuses for Prosecutors Who Hit Conviction Targets,” Denver Post, March 23, 2011, http://www.denverpost.com/news/ci_17686874.
138. Berger v. United States, 295 U.S. 78, 88, 1935.
139. Jones v. Barnes, 463 U.S. 745, (1983).
140. Gideon v. Wainright, 372 U.S. 335, (1963).
141. Stephen Schulhofer and David D. Friedman, “Rethinking Indigent Defense: Promoting Effective Representation through Consumer Sovereignty and Freedom of Choice for All Criminals.” American Criminal Law Review 31 (1993): 71–122; Stephen Schulhofer and David D. Friedman, “Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System,” in Policy Analysis, No. 666, (Washington, DC: Cato Institute, 2010).
142. Stephen Schulhofer and David D. Friedman, “Rethinking Indigent Defense: Promoting Effective Representation through Consumer Sovereignty and Freedom of Choice for All Criminals.” American Criminal Law Review 31 (1993): 71–122; Stephen Schulhofer and David D. Friedman, “Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System,” in Policy Analysis, No. 666, (Washington, DC: Cato Institute, 2010).
143. Michael McConville and Chester L. Mirsky, “Criminal Defense of the Poor in New York City,” New York University Review of Law and Social Change 15 (1986–1987): 592–694.
144. Schulhofer and Friedman, “Rethinking Indigent Defense,” 71–122: Schulhofer and Friedman, “Reforming Indigent Defense,” 8. We note that this is one example of a highly publicized case and we are not aware of evidence that this practice is widespread, though it may be that this is uncommon because of the established shared beliefs and norms of the local courtroom workgroup. Research on the operation of the courtroom workgroup tends to debunk the perception that justice is usually adversarial. Also see Thomas W. Church, Jr. et al., Justice Delayed: The Pace of Litigation In Urban Trial Courts (Williamsburg: National Center for State Courts, 1978); Thomas W. Church, Jr., “Examining Local Legal Culture,” American Bar Foundation Research Journal 3 (1986): 449–518; Brian Ostrom and Roger A. Hanson, Efficiency, Timeliness, and Quality: A New Perspective from Nine State Criminal Trial Courts (Washington, DC: National Institute of Justice and the State Justice Institute, 1999).
145. Schulhofer and Friedman, “Rethinking Indigent Defense,” 91.
146. Phillips, “Legal Disparities,” 717–55.
147. Robert L. Spangenberg, Review of the Indigent Defense System in Alabama: Executive Summary 4 (West Newton, MA: Spangenberg Group, 1988).
148. Schulhofer and Friedman, “Rethinking Indigent Defense,” 71–122; Schulhofer and Friedman, “Reforming Indigent Defense,” 10.
149. Scott Phillips, “Legal Disparities in the Capital of Capital Punishment,” Journal of Criminal Law and Criminology 99 (2009): 717–55.
150. Texas Appleseed Fair Defense Project, The Fair Defense Report: Analysis of Indigent Defense Practices in Texas (2000), 22, http://www.texasappleseed.net/pdf/projects_fairDefense_fairref.pdf.
151. Schulhofer and Friedman, “Rethinking Indigent Defense,” 71–122.
152. David Dixon, Videotaping Police Interrogation, Working Paper 28 (Sydney: University of New South Wales Faculty of Law Research Series, 2008), http://law.bepress.com/unswwps/flrps08/art28).
153. Schulhofer and Friedman, “Rethinking Indigent Defense,” 71–122; Schulhofer and Friedman, “Reforming Indigent Defense.”
154. Giannelli, “Ake v. Oklahoma: Right to Expert Assistance,” 1305–419.
155. Committee on Identifying the Needs of the Forensic Science Community, National Research Council, Strengthening Forensic Science.
156. “In practice, an informant provides information about someone else's criminal conduct in exchange for some government-conferred benefit, usually lenience for his own crimes, but also for a flat fee, a percentage of the take in a drug deal, government services, preferential treatment, or lenience for someone else.” Alexandra Natapoff, “Snitching: The Institutional and Communal Consequences,” University of Cincinnati Law Review 73 (2004): 652.
157. D. Krane et al., “Sequential Unmasking: A Means of Minimizing Observer Effects in Forensic DNA Interpretation,” Journal of Forensic Sciences 53, no. 4 (2008): 1006–7.
158. Koppl, “How to Improve Forensic Science,” 255–86.
159. J. Danaher , “Blind Expertise and the Problem of Scientific Evidence,” International Journal of Evidence and Proof 15 (2011): 207–31.
160. In the 1990s, in Charlotte-Mecklenburg, North Carolina, the police restructured their department to fit with their philosophy and that of the city government that the police do not just fight crime but they also have an equally important role in ensuring neighborhood vitality. They reorganized their department to provide customer-oriented services to citizens and neighborhood groups and to play a critical role in overall neighborhood prosperity. See Moore and Poethig, “Police as an Agency of Municipal Government.”
161. Mark and Braga, “The ‘Bottom Line’ of Policing.”
162. Medwed, “Prosecutor as Minister of Justice,” 35–66.
163. Barkow, “Prosecutorial Administration,” 51.
164. Committee on Identifying the Needs of the Forensic Science Community, National Research Council, Strengthening Forensic Science.
165. Simon A. Cole, “Acculturating Forensic Science: What Is ‘Scientific Culture’, And How Can Forensic Science Adopt It?” Fordham Urban Law Journal (2010): 435–71.
166. Koppl, “Leveraging Bias in Forensic Science,” 51.
167. Koppl, “Leveraging Bias in Forensic Science,” 53.
168. James E. Cowan and Roger Koppl, “A Battle of Forensic Experts is not a Race to the Bottom,” Review of Political Economy 22, no. 2 (2010): 235–62.
169. Koppl, “Leveraging Bias in Forensic Science,” 53–4.
170. James Madison, Federalist No. 51: “The Structure of the Government Must Furnish the Proper Checks and Balances between the Departments.” New York Packet, February 8, 1788.
171. McNabb v. United States, 318 U.S. 332, 343 (1943).