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42 Am. Crim. L. Rev. 1123 (2005)
How the Pretrial Process Contributes to Wrongful Convictions

handle is hein.journals/amcrimlr42 and id is 1131 raw text is: HOW THE PRETRIAL PROCESS CONTRIBUTES TO
Andrew D. Leipold*
Wrongful convictions have received a lot of recent attention, and properly so.
The use of DNA evidence, coupled with the spectacular work of various innocence
projects, has shown that despite all the procedural protections built into the
criminal system, juries and judges are sometimes convinced beyond a reasonable
doubt of a fact that is false.
The reaction to these wrongful convictions has been multi-layered. Part of the
reaction has been a sigh of relief that a miscarriage of justice was discovered, albeit
late in the day. Another part--one that has not yet been faced completely-is the
gnawing fear that the wrongful convictions we know about are just a small subset
of a very large problem.' Most of the exonerations to date have been in cases
involving murder and rape2 (where DNA evidence is particularly helpful), but
many of the root causes of erroneous convictions are not limited to those crimes.
Faulty eyewitness identification, witness perjury, ineffective counsel, and forensic
errors can occur in almost any type of case.
A third part of the reaction has been to assign blame. Much of the fault has been
laid at the door of police and prosecutors for failure to properly investigate a case,
or for relying on questionable or compromised evidence. Prosecutors have hardly
helped themselves by stubbornly defending their decisions, including the convic-
* Professor, University of Illinois College of Law. My thanks to Stanley Z. Fisher, Daniel J. Givelber, and the
other participants in the 2005 National Innocence Network Conference in Washington, D.C., for their helpful
comments on this paper.
1. In their valuable study on wrongful convictions, Samuel Gross and his colleagues concluded that it is
certain-this is the clearest implication of our study-that many defendants who are not on this list, no doubt
thousands, have been falsely convicted of serious crimes but have not been exonerated See Samuel R. Gross et
al., Exonerations in the United States: 1989 Through 2003, 95 J. CRiM. L. & CRIMINOLOGY 523, 527 (2005). See
also George C. Thomas III et al.. Is It Ever Too Late for Innocence? Finality, Efficiency, and Claims of Innocence,
64 U. Prr. L. REV. 263, 271-73 (2003) (reviewing studies to support the conclusion that when it comes to
protecting the innocent, the system fails far more often than most people thought, and far more often than is
2. Gross, supra note 1, at 528.
3. For an analysis of the causes of false convictions, see id. at 542; BARRY SCHECK ET AL., ACTUAL INNOCENCE
361, (Doubleday 2000) (showing factors that contributed to seventy four wrongful convictions). Cf EDWARD
ESTABLISH INNOCENCE AFTER TRIAL, 15-20 (U.S. Dep't of Justice Nat'l Inst. of Justice, 1996) (noting common
attributes among the cases of wrongful conviction studied). For a highly informative study of one state's cases, see
The Innocence Commission for Virginia, A Vision for Justice: Report and Recommendations Regarding Wrongful
Convictions in the Commonwealth of Virginia (2005), available at http://www.icva.us. See generally Stanley Z.
Fisher, Convictions ofInnocent Persons in Massachusetts: An Overview, 12 B.U. PUB. INT. L. J. 1 (2002).


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