The criminal justice system was once considered infallible. But we now know that innocent defendants are incarcerated and even executed. Indeed, the National Registry of Exonerations (“NRE”) provides a list of 1535 inmates who were exonerated and released from prison in the United States from 1989 through 2014. Of the exonerees, 1421 were released from the general prison population and 114 were released from death row.
Scholars have documented several key evidentiary causes of wrongful conviction, including eyewitness error, bad science, false confession, untruthful snitches, government misconduct, and inadequate legal defense.4 In addition to the “usual suspects,” Samuel Gross hypothesizes that the seriousness of a crime matters—the more serious the crime, the greater the chance of a wrongful conviction. Consider the following empirical pattern: more than eighty percent of all exonerations have occurred in rape and murder cases, despite the fact that such cases account for just two percent of felony convictions and an even smaller proportion of all criminal convictions.5 There are two possible explanations for the disproportionate representation of serious crimes among exonerations: the chance of wrongful conviction is greater in serious crimes than in minor crimes or errors are more apt to be identified and corrected in serious crimes than in minor crimes, or both. Miscarriages of justice are almost certainly more likely to be rectified in serious crimes, as urgent cases attract devoted lawyers (especially if the defendant is facing execution). Nonetheless, Gross posits that the nature of the crime is also pivotal: as the seriousness of a crime increases, so too does the chance of a wrongful conviction.