A Peek inside the Black Box
posted by Daniel Medwed
Special thanks to Danielle for organizing this symposium, Brandon for his generosity in expanding its scope, and Dan S and Stephanos for their participation.
I recently published a book review of Convicting the Innocent in Criminal Justice Ethics, lauding the work as a brilliant contribution to the field. A hallmark of Brandon’s work generally, and his book in particular, is that he focuses on what we know rather than speculating about what we don’t. He carefully deconstructed the first 250 documented DNA exonerations and, in the process, shed newfound light on what went awry in those cases. The result is an incredible book that shines a spotlight on various aspects of the criminal justice system that had long remained shrouded in darkness. For instance, we knew that false confessions were a major factor in wrongful convictions, but we – or at least I – did not know that in the vast majority of those cases (38 of 40) the false confessions contained details about the crime that only the true perpetrator would know, suggesting that law enforcement had either inadvertently or intentionally fed this information to the suspect.
Recent books by Stephanos and Dan S likewise shed light on criminal justice issues that previously existed largely in the shadows. Stephanos artfully explores the assembly-line nature of our modern criminal justice system in which plea bargains come off the conveyor belt in crisp, neat packages that make it harder to evaluate their underlying accuracy. Dan S offers a thorough analysis of the key moments in the criminal process where innate psychological biases can yield flawed decisions and increase the likelihood of error. I focus on discretionary decisions made by prosecutors–which often occur behind the scenes– that can help produce and prolong wrongful convictions.
One pressing question that emerges from all four of these works, I think, relates to the magnitude of any potential reforms: Should we adopt a gradual or evolutionary approach and tinker with problems one by one? Alter interrogations to avoid unintentional dissemination of information by the police to suspects, implement greater review of pleas, change how identification procedures are handled, and so forth. Or should we take a more revolutionary approach and consider revamping the adversary system itself on a much more fundamental level?