By Elaine Cassel
The report from Florida on December 16, 2000 at first seemed like good news. Yet another man condemned to death for a crime he did not commit was exonerated by DNA evidence. Frankie Lee Smith had spent 14 years on death row. But the story had a sad twist. Smith died of cancer a few months before he would have seen his claims of innocence validated.
Like many defendants you have no doubt read about, Smith was convicted largely on the basis of a witness who said she observed the rape and murder of an 8-year-old girl. Later, she recanted her testimony and said she was pressured by police to implicate Smith in the crime.
Although eyewitness evidence can be helpful in developing leads and identifying criminals, psychological research has provided ample empirical evidence that it is not infallible. University of Washington psychologist Elizabeth Loftus has been a leader in this area of research. Other psychologists, such as Solomon Fulero and Roy Malpass, have researched the effect of eyewitness testimony on juries. However great these research contributions, they rarely find their way into the practices of law enforcement officers or instructions to jurors.
In 1996, the United States Department of Justice sponsored research into the use of DNA evidence to exonerate convicted criminals. The research report, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial (1996, National Institute of Justice), identified 28 persons who were wrongfully convicted on the basis of eyewitness testimony.1 As of December 2000, 81 innocent people have been released from death row, almost half of them convicted solely on the basis of erroneous accounts, and most of them exonerated by DNA evidence.
Determined to do something about the disgrace of executing innocent people, attorneys Barry Scheck and Peter Neufeld (known for their roles in explaining DNA evidence to the O.J. Simpson jurors) established The Innocence Project, a pro bono civil rights organization that works with law and journalism students to free convicted persons who are actually innocent, not those who could get off on a legal technicality.
Scheck and Neufeld, along with Pulitzer-award winning journalist Jim Dwyer, tell the stories of ten such people who were within days of execution when attorneys with the Innocence Project won their release in Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (Doubleday, 2000).
Actual Innocence steers clear of moral issues relating to capital punishment and instead focuses on the legal issues and problems in the criminal justice system that lead to the conviction of innocent people. In addition to abuse and misuse of eyewitness testimony, the book examines prosecutorial and police misconduct, incompetent defense attorneys, and death-biased juries.
In reading Actual Innocence, psychology students will learn how police and prosecutors use psychological tactics to coerce people into testifying and exploit the malleability of memory to create memories in the minds of people who never witnessed what they so firmly assert on the witness stand. Mean-spirited prosecutors and police implicated in falsifying evidence express no remorse for those wrongfully imprisoned, demonstrating authoritarianism at its most cruel. The discussion of death-biased juries illustrates how stacking the jury with people who are proponents of the death penalty and removing those who are opponents of it—approved by the U.S. Supreme Court in spite of an amicus brief filed by the American Psychological Association urging against it--can lead to wrongful conviction of innocent people. Pro-death penalty jurors are more prone to convict a criminal defendant than jurors who are against the death penalty.
By staying away from the political debate about the death penalty, Actual Innocence appeals to all fair-minded citizens to insist that our criminal justice system stop convicting, imprisoning, and executing innocent people.