Predicting Erroneous Convictions

What causes criminal trials to go wrong? This new article attempts to answer: Jon B. Gould et al., Predicting Erroneous Convictions, 99 Iowa L. Rev. 471 (2014)

ABSTRACT: The last thirty years have seen an enormous increase not only in exonerations of innocent defendants but also academic scholarship on erroneous convictions. This literature has identified a number of common factors that appear frequently in erroneous conviction cases, including forensic error, prosecutorial misconduct, false confessions, and eyewitness misidentification. However, without a comparison or control group of cases, researchers risk labeling these factors as “causes” of erroneous convictions when they may be merely correlates. This Article reports results from the first large-scale empirical research project to compare wrongful convictions with other innocence cases in which the defendant escaped conviction (so-called “near misses”). Employing statistical methods and an expert panel, the research helps us to understand how the criminal justice system identifies innocent defendants in order to prevent erroneous convictions. In another first, the research secured the cooperation of practitioners from multiple sides of the criminal justice system, including the national Innocence Project, the Police Foundation, the Association of Prosecuting Attorneys, and the National District Attorneys Association. The results highlight ten factors that distinguish wrongful convictions from near misses, but the larger story is one of system failure in which the protections of the criminal justice system operate in a counterintuitive manner. The Article closes with a series of policy reforms to address these failings.

Rap Lyrics as Evidence of Crime

Should a jury hear (or read) violent lyrics written by a criminal defendant? Even if they were written years before the crime? The issue has come up in a number of cases, including one that was recently argued in the New Jersey Supreme Court (State v. Skinner).

Two professors argue that rap lyrics should be entitled to protection as artistic expression. Erik Nielson & Charles E. Kubrin, Rap Lyrics on Trial, N.Y. Times Jan. 13, 2014.

The lower judges disagreed: the majority remanded, holding that the admission of the lyrics was prejudicial; a dissenter would have upheld the admission of the lyrics, finding that the trial judge appropriately applied New Jersey's four-part test for admission of extrinsic "bad-act" evidence. State v. Skinner, No. A-2201-08T2 (N.J. Super. Ct. App. Div. Aug. 31, 2012). The opinions offer extensive analysis and factual context. The ACLU of New Jersey's amicus brief is here link to the organization's amicus brief.

While we Seattleites can be proud of our hometown rappers Macklemore and Ryan Lewis who won four Grammys and are white, it is clear that attitudes toward rap are tied to attitudes about young black men. Some commentary by bloggers and two radio programs:

• Scott H. Greenfield, The Rhyming Irrelevance of Rap, Simple Justice: A Criminal Defense blog, Jan. 14, 2014.
• Deborah C. England, Rap Lyrics in Evidence: Is it a Crime to Rhyme?, CriminalDefense.com (among other points, asks: why rap and not pop? what about "Helter-Skelter" by Paul McCartney?)
• Dan Brooks, New Jersey supreme court to consider admissibility of rap lyrics, Combat! ("oppositional culture for an occupied age"), Jan. 14, 2014.
• Rap, Race, Free Speech and Crimes, Basic Black (WGBH), Jan. 17, 2014 (panel discussion including professors of law, music, and writing)
• Rap Lyrics as Evidence, On the Media, Jan. 17, 2014. Transcript here.

This reminds me of an article Prof. Helen Anderson wrote several years ago: The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment, 83 Or. L. Rev. 899-943 (2005).

Jurors Have a Hard Time Resisting Call of the Web

After a five-week trial, Judge Mary E. Roberts

Judge Mary E. Roberts (UW Law '84)
Photo from King County Superior Court

faced a tough decision: after learning that the jury foreman defied her instructions not to research legal issues on the Web, should she let the verdict stand or declare a mistrial?

The juror had looked up the penalty for first-degree rape—but in criminal trials, the juror is supposed to focus on the definition of the crime, not the penalty. The judge decided that the jury had been sufficiently tainted by the juror's action that a new trial was warranted.

The Seattle Times has a long story about this case and the nationwide issue of jurors leaving the jury room via wireless technology. Ken Armstrong, Case of the Curious Juror: When the Web Invades the Courtroom, Seattle Times, Jan. 18, 2014.

As people increasingly carry around Internet access in their pockets and reflexively look up actors on IMDb, rate restaurants on Yelp, and settle trivia disputes with a quick look at Wikipedia, the use of the web by jurors has challenged judges, advocates, and parties nationwide.

The Washington Courts created (with private funds) a poster for jury rooms reminding jurors to "FOCUS ON THE COURTROOM." (Here's the press release about it.)

Washington Courts poster

Jury instructions include cautions about outside research. See WPI 1.01 (civil trials) and WPIC 1.01 (criminal trials):

It is essential to a fair trial that everything you learn about this case comes to you in this courtroom, and only in this courtroom. You must not allow yourself to be exposed to any outside information about this case. Do not permit anyone to discuss or comment about it in your presence, and do not remain within hearing of such conversations. You must keep your mind free of outside influences so that your decision will be based entirely on the evidence presented during the trial and on my instructions to you about the law.

Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, blogs, the internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. If you start to hear or read information about anything related to the case, you must act immediately so that you no longer hear or see it. By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case.

During the trial, do not try to determine on your own what the law is. Do not seek out any evidence on your own. Do not consult dictionaries or other reference materials. Do not conduct any research into the facts, the issues, or the people involved in this case. This means you may not use [Google or other internet search engines] [internet resources] to look into anything at all related to this case. Do not inspect the scene of any event involved in this case. If your ordinary travel will result in passing or seeing the location of any event involved in this case, do not stop or try to investigate. You must keep your mind clear of anything that is not presented to you in this courtroom.

For more on the impact of the web on litigation, see these articles by UW Law students from the last few years:

• Matthew Frederickson,  Conformity in Confusion: Applying a Common Analysis to Wikipedia-Based Jury Misconduct, 9 Wash. J.L. Tech. & Arts 19 (2013)
• Mallory Allen & Aaron Orheim, Get Outta My Face[book]: The Discoverability of Social Networking Data and the Passwords Needed to Access Them, 8 Wash. J.L. Tech. & Arts 137 (2012)
•  J.C. Lundberg, Googling Jurors to Conduct Voir Dire, 8 Wash. J.L. Tech. & Arts 123 (2012)
• Heather L. Griffith, Understanding and Authenticating Evidence from Social Networking Sites, 7 Wash. J.L. Tech. & Arts 209 (2012)
• Aurora J. Wilson, Let's Be Cautious Friends: The Ethical Implications of Social Networking for Members of the Judiciary, 7 Wash. J.L. Tech. & Arts 225 (2012)
• Duncan Stark, Juror Investigation: Is In-Courtroom Internet Research Going to Far?, 7 Wash. J.L. Tech. & Arts 93 (2011)
• Jason Boulette and Tanya DeMent, Ethical Considerations for Blog-Related Discovery, 5 Shidler J.L. Com. & Tech. 1 (Sep. 23, 2008)
• Gareth S. Lacy, Should Jurors Use the Internet? (2010)
• Gareth S. Lacy, Untangling the Web: How Courts Should Respond to Juries Using the Internet for Research, 1 Reynolds Cts. & Media L.J. 169 (2011)

See also the Jurors & Courtrooms page in the Social Media & the Courts section of National Center for State Court.

Want more? Just take out your smartphone and run a search. (But not while you're on a jury.)