Decision-Making in the Dark: How Pre-Trial Errors Change the Narrative in Criminal Jury Trials

Authors

Kara MacKillop
Neil Vidmar, Duke Law SchoolFollow

Document Type

Article

Publication Date

2015

Abstract

Over the past decade and a half, a great deal of attention has rightfully been given to the issue of wrongful convictions. In 2003, Jim Dwyer, Peter Neufeld and Barry Scheck published Actual Innocence, an eyeopening treatise on the reality of wrongful convictions in the United States. In the years since, more than 1400 innocent persons have been exonerated, and a very diverse research community of attorneys, academics, social scientists, and activists has developed in response to the realization offlaws in our criminal justice system. In 2012, Brandon Garrett's Convicting the Innocent quantitatively evaluated the first 250 DNA exonerations and exposed clear patterns of error within those cases. Dan Simon's In Doubt: The Psychology of the Criminal justice Process followed with a union of these patterns and their relationship with established psychological principles. This strong foundation has led to an explosion of interest in identifying, analyzing and resolving the issues raised in wrongful conviction cases.

The Innocence Project, founded in 1992 by Scheck and Neufeld in cooperation with the Benjamin N. Cardozo School of Law, has expanded to many dozens of Innocence Network organizations throughout the world. The Duke Wrongful Convictions Clinic, in operation for just over five years, recently marked its fifth exoneration in the state of North Carolina. In addition, the Clinic is currently working seven innocence petitions filed and in litigation, and additional cases are in various stages of investigation.

In an effort to better understand and remedy the errors occurring in these wrongful conviction cases, the Duke Clinic's research team is working to develop a root cause analysis methodology intended to identify the policies, procedures, and legal doctrines that contribute to these errors and to develop strategies for improving the criminal justice process. Because the justice system relies on individuals and the decisions they make as the core of its function, it is necessary to consider the various roles of responsibility and evaluate their decision-making processes in order to identify the root causes of wrongful outcomes. Here, we illustrate this process with a consideration of the jury's role in reaching wrongful verdicts.

Citation

Kara MacKillop & Neil Vidmar, Decision-Making in the Dark: How Pre-Trial Errors Change the Narrative in Criminal Jury Trials, 90 Chicago-Kent Law Review 957-980 (2015)