Causes & Remedies

Please also reference the Innocence Project® on this topic.

No one will ever know how many innocent people are imprisoned at any one time. Some wrongfully convicted inmates, without funds for legal counsel or investigators, and without knowledge of the work of Innocence Projects®, will never have their claims explored. Others will be unable to prove their claim of innocence because evidence has been destroyed or witnesses can not be located or have died. Others will be released due to issues raised on appeal that have nothing to do with the inmate’s claim of innocence. Some will die in prison.

The number of wrongful convictions may be obscure, but the growing number of exonerations that have occurred are providing law enforcement and legal communities across the country with clear information about the causes of wrongful convictions, as well as their remedies. In November 2002, then Chief Justice I. Beverly Lake took the groundbreaking step of establishing the North Carolina Actual Innocence Commission to study causation issues in wrongful convictions and recommend potential strategies to substantially lessen their incidence. Chief Justice Lake understood the importance of bringing representatives from the different criminal justice stake holders together for cooperative and productive discussion of the issues. The North Carolina Commission was the first of its kind in the United States and has become a model across the country.

I. Mistaken Eyewitness Identification: Mistaken identification is the leading causation factor in over 75% of the wrongful conviction cases across the country. Yet, eyewitness testimony is considered compelling evidence and has for years been the bedrock upon which many cases have been brought to trial. In 1999, the National Institute of Justice estimated that each year 75,000 people are charged with a crime in the U.S. due to eyewitness identification. Indeed, many defendants have been convicted on the basis of this testimony alone. New research on the fallibility of human memory – especially when stored under stress – has now shaken the credibility of this form of identification. Many other influences can affect the accuracy of eyewitness recall: lighting, distance, age, intoxication, and a difference in the races of the perpetrator and the eyewitness. Indeed, even witnesses who consciously try to notice identifying characteristics of the perpetrator – as Jennifer Thompson did during her rape in North Carolina – can be terribly wrong in their subsequent identification of a suspect.

Police procedures long used by victims and witnesses to identify perpetrators are now found to have compounded identification problems. Research reveals that the traditional method of photo line-ups in which an eyewitness is simultaneously shown six photographs - of a suspect and “fillers” – can influence people to choose the individual who looks more like the perpetrator than anyone else in the line-up, rather than identifying the perpetrator himself.


Ronald Cotton (left), exonerated in 1995, and
Dwayne Dail, exonerated in 2007, met in prison
and celebrated their freedom together in 2008.
Remedies: In 1999, the U.S. Department of Justice issued recommendations on new eyewitness identification procedures. Law enforcement agencies are slowly starting to institute sequential double-blind photo spreads and line-ups. Eyewitnesses are shown photos or individuals one at a time by a police officer who does not know who the suspect is. This double-blind precaution insures that the officer does not inadvertently influence the witness’ choice and that the witness does not misinterpret an innocent act by the office as a cue. In October 2003, the North Carolina Actual Innocence Commission released its recommendations for eyewitness identification in North Carolina, including recommendations for standardized procedures and witness instructions. Those recommendations became statutory law for the State of North Carolina in March 2008. You can read North Carolina’s Eyewitness Identification law at: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_15A/Article_14A.html.

II. Forensic Error: Forensic error can begin at the site of a crime. Improper collection, labeling, or preservation of evidence, or the less than complete processing of a crime scene, can be the first steps in the road to conviction for an innocent person. Once at the lab, errors can multiply. Thousands of cases across the nation have been recently been re-examined after serious problems were uncovered in forensic testing by state and municipal facilities, as well as by the FBI crime lab. Many law enforcement labs have no outside accrediting body setting standards and providing oversight; this sets conditions in which lab workers may not follow proper protocols or be adequately trained to perform certain analyses. Even the most inadvertent of mistakes, such as the careless contamination of evidence, can lead to forensic results that can be damning to the innocent. Less inadvertent is court testimony that draws conclusive results from the inconclusive lab data.

The same DNA evidence that is being used to exonerate the innocent is identifying the forensic “sciences” that were used to convict the innocent. The reliability and evidentiary value of these procedures, including comparative bullet lead analysis, bite mark analysis, fingerprint analysis, microscopic hair comparison, and blood splatter analysis, have been called into serious question.

One other aspect of forensic testing that cannot be overlooked is testing that has yet to be done. Advances in DNA technology have made possible the testing of rape kits and other biological evidence for conclusive proof of guilt or innocence. However, testing can not be conducted if the evidence is not properly collected and preserved.

Remedies: Federal and/or state forensic science commissions should be established to address a wide range of issues including accreditation, training, standards in testing, independence of scientific testing, collection, preservation, and chain of custody of evidence. Additionally, the rigorous examination of scientific testing technique and testimony before a forensic expert takes the stand should be standard operating procedure for prosecutors and defense counsel. You can read North Carolina’s law regarding the proper preservation, testing, and destruction of biological evidence at http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_15A/Article_13.html

III. False Confessions: he illogic of this term may seem self-evident to the average person on the street or seated on a jury; after all, most people think that an innocent person would not confess to a crime they did not commit. However, about 25% of those exonerated by DNA made incriminating statements, gave false confessions, or took guilty pleas.

The reasons for false confessions range from incompetence to coercion.

The mentally retarded are especially susceptible to suggestion and, wishing to please, have a relatively high rate of false confession. In addition, interrogation tactics long taught in criminal justice academies can sometimes put even the most stable innocent person at risk of confessing. Threats of the death penalty or of bringing legal charges against a loved one can prove too much to withstand. Other troublesome tactics range from the subtle feeding of crime-related details to an innocent suspect, to downplaying the importance of the Miranda warning, to suggesting that others’ statements or even physical evidence point to a person’s involvement in the crime. Hours of interrogation when the defendant is exhausted, confused, and scared can cause the innocent to confess.

Remedies: Videotaping interrogations creates a real-time record of the interview process that captures the tone and nature of the interview, the physical condition of the suspect, the origination of factual details relating to the crime, the setting of the interview, and other details that can aid law enforcement in the investigation of the crime and aid the jury in evaluating the reliability of a confession. Uninterrupted recording of interrogations from the time of Miranda through the completion of the interview is being conducted by over six hundred law enforcement departments in the United States. Each of those departments now recognizes the benefits of recording to solving crime and raising public and jury confidence. You can read North Carolina’s law requiring recording of interrogations in homicide cases here: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_15A/Article_8.html


Alan Gell hugs his attorney Jim Cooney after
being found not guilty in the 1995 murder of
Allen Ray Jenkins at the Bertie County Courthouse.
IV. Police/Prosecutorial Tunnel Vision: Alan Gell won a retrial because two North Carolina prosecutors failed to present exonerative evidence at his first trial. Such misconduct – while confined to a small minority of prosecutors and police - is increasingly drawing the attention of the news media and courts across the country. Political concerns, under funding, and excessive caseloads paired with the pressures of our adversarial system of justice, influence some prosecutors and law enforcement to focus on convictions rather than justice. Tunnel Vision in investigations and prosecutions can mean that evidence is not thoroughly assessed before bringing charges, that cases are prematurely narrowed to single suspects, and that facts pointing to innocence or inconsistency with guilt may be intentionally or unintentionally ignored. Once mistakes are made, getting some prosecutors to recognize the possibility of a wrongful conviction can be difficult to overcome. In Darryl Hunt’s case, prosecutors balked at releasing him even after DNA testing excluded him as the perpetrator, thus costing him 9 years in prison in addition to the 9 he had already served.

Remedies: Open file discovery laws provide for the sharing of evidence, including police reports and witness statements, between prosecution and defense before trial. In addition, training for prosecutors, law enforcement, and defense attorneys regarding the possibility of wrongful convictions can highlight the need for cooperation in resolving questionable cases and ensuring that justice is quickly served for the innocent and for the true perpetrator. You read North Carolina’s Discovery Law here: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_15A/Article_48.html.

V. Inadequacy of Defense Representation: The stories of unacceptable representation in capital cases are now widely known, but such representation is not limited to capital cases. Economics plays no small part in this. In North Carolina, attorneys paid by the State’s Office of Indigent Defense Services http://www.ncids.org make substantially less money than private attorneys. Thus, while many attorneys paid by the State are highly skilled, the indigent are more at risk than the general population to have counsel who is less experienced. Similarly, public defender offices are often under-funded, thus leading to high caseloads that prohibit adequate trial preparation and minimal investigation. Under these circumstances, the pressure to encourage inappropriate guilty pleas can be enormous.

Remedies: Increasing funding to the offices of public defenders will allow for increased training and investigative support. Increasing the fee rate of other court-appointed attorneys will attract more experienced attorneys. Lowering the burden of proof in claims of ineffective assistance of counsel will correlate to a higher standard of practice which will ensure a proper defense is available even to the poor.

VI. Jailhouse Informants: The best laid claims of innocence can be shattered in an instant under the weight of an informant’s false testimony in court. An informant’s motives for lying on the stand may include revenge against the defendant, money, or a reduction in pending charges or an active sentence. All too often, jurors do not hear about these motives.

Remedies: Open discovery removes some of the element of surprise for the defense. Sanctions for undisclosed deals in exchange for testimony are a motivating reminder of the duty to disclose. Other remedies include the elimination of rewards for informant testimony, a prohibition against prosecutions based solely on the uncorroborated testimony of an incarcerated informant, a prohibition against the planting of informants, informant registries, and cautionary jury instructions.

VII. Innocence Inquiry Commission:No discussion of remedies for wrongful convictions would be complete without commenting on the establishment of innocence review commissions. North Carolina established the country's first Innocence Inquiry Commission in 2006. The Commission is a State agency which investigates claims of innocence with the benefit of subpoena power and the ability to circumvent some of the procedural bars which might otherwise block post-conviction review of an innocence claim. You can read more about the Innocence Inquiry Commission at http://www.innocencecommission-nc.gov.