Faculty Post: Innocence: Fact or Fiction

by Professor Dan Givelber

Prior to entering teaching, I worked as a prosecutor (an Assistant United States Attorney) in the District of Columbia. The people with whom I worked – both prosecutors and defense counsel – took it as a given that those whom we were prosecuting were guilty as charged.  If, by some fluke, an innocent person was actually charged with a crime, we thought that either the jury or the trial judge or the appellate court would recognize the mistake and the person would be released.  There were those who argued that we were too confident in the system’s ability to separate the guilty from the innocent but they represented a very distinct, if distinguished, minority and their arguments did not prevail.

Today we see things very differently.   Innocence projects throughout the country have demonstrated that more than three hundred people convicted of serious crime were actually innocent.  Overwhelmingly, they have done so through the power to DNA to identify accurately the source of biological material thought to come from the perpetrator of the crime.  Since only a tiny fraction of all serious criminal cases result in the collection and preservation of biological evidence, it is likely that the number of falsely convicted innocents far exceeds those whom DNA  testing has identified.

Our challenge is to develop techniques to prevent false convictions before they occur. While there is no magic formula for doing to so, there is a place that we can start.  A disturbing number of these false convictions arose because the lawyers involved – defense counsel as well as prosecutors – did not do their job effectively.  While these failures sometimes occur at the trial itself, very frequently it is the lack of thorough pre-trial investigation that leads to error.  The media typically focus upon what happens at the trial as the explanation for outcomes in criminal cases. The reality is that, in a vast number of cases, it is what happens before the trial begins that determines whether justice triumphs.  Careful investigation and preparation – not trial pyrotechnics – are the innocent defendant’s best friend.

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