DPIC Analysis: Causes of Wrongful Convictions

The Most Common Causes of Wrongful Death Penalty Convictions: Official Misconduct and Perjury or False Accusation

Many fac­tors con­tribute to wrong­ful con­vic­tions, and it is no dif­fer­ent in cap­i­tal cas­es. But the most recent data from the National Registry of Exonerations points to two fac­tors as the most over­whelm­ing­ly preva­lent caus­es of wrong­ful con­vic­tions in death penal­ty cas­es: offi­cial mis­con­duct and per­jury or false accu­sa­tion. As of May 31, 2017, the Registry reports that offi­cial mis­con­duct was a con­tribut­ing fac­tor in 571 of 836 homi­cide exon­er­a­tions 68.3%, very often in com­bi­na­tion with per­jury or false accu­sa­tion, which also was a con­tribut­ing fac­tor in 68.3% of homi­cide exon­er­a­tions. According to the Registry, mis­tak­en wit­ness iden­ti­fi­ca­tion was present in near­ly a quar­ter of homi­cide exon­er­a­tions (203, 24.3%), as was false or mis­lead­ing foren­sic evi­dence (194, 23.2%), and false or fab­ri­cat­ed con­fes­sions were present in more than a fifth of the exon­er­a­tions (182, 21.8%). The Registry lists inad­e­quate legal rep­re­sen­ta­tion at tri­al as a con­tribut­ing fac­tor in more than a quar­ter (218, 26.1%) of these wrong­ful homicide convictions. 

Two reports released on March 7, 2017 by the National Registry of Exonerations, Exonerations in 2016 and Race and Wrongful Convictions in the United States, pro­vide con­tin­u­ing evi­dence of the role of offi­cial mis­con­duct in wrong­ful cap­i­tal pros­e­cu­tions, and sug­gest a link between race of defen­dant and offi­cial mis­con­duct. The Registry’s annu­al report on exon­er­a­tions revealed a record 166 exon­er­a­tions in 2016 — and a record num­ber of exon­er­a­tions involv­ing police or pros­e­cu­to­r­i­al mis­con­duct. 54 of the 2016 exon­er­a­tions — near­ly a third — involved wrong­ful homi­cide con­vic­tions. At least 13 of these cas­es involved the wrong­ful use of the death penal­ty — mean­ing that the death penal­ty played a role in near­ly a quar­ter of the 54 homi­cide exon­er­a­tions in 2016. Every one of these wrong­ful con­vic­tions involved either offi­cial mis­con­duct or per­jured testimony/​false accu­sa­tion, and eleven (84.6%) of them involved both. The National Registry’s race report doc­u­ments that the ​“rate of offi­cial mis­con­duct is con­sid­er­ably high­er among mur­der exon­er­a­tions with black defen­dants than those with white defen­dants, 76% com­pared to 63%. The rate of mis­con­duct is high­er over­all in cap­i­tal cas­es, and the dif­fer­ence by race is greater: 87% of black exonerees who were sen­tenced to death were vic­tims of offi­cial mis­con­duct, com­pared to 67% of white death-row exonerees.”

The Death Penalty Information Center has exam­ined our exon­er­a­tion data­base and cross-ref­er­enced it with the National Registry of Exonerations infor­ma­tion on death-row exon­er­a­tions in the last decade (between 2007 and April 2017) to deter­mine the most com­mon fac­tors that con­tributed to the wrong­ful con­vic­tions and death sen­tences for the most recent exonerees. The data for the 34 cas­es in the NRE data­base^[1] shows that the wrong­ful cap­i­tal pros­e­cu­tions involved more than mere errors. Every one of these cas­es involved some com­bi­na­tion of offi­cial mis­con­duct, per­jury or false accu­sa­tion, or false or mis­lead­ing foren­sic evi­dence; and more than three-quar­ters (26 cas­es, 76.5%) involved at least two of these fac­tors. Fewer than one-tenth of the cas­es (3, 8.8%) involved a sin­gle wrong­ful cause. 91.2% (31 cas­es) had mul­ti­ple con­tribut­ing fac­tors and near­ly half (16 cas­es, 47.1%) had three or more contributing causes.

By cat­e­go­ry, the lead­ing con­tribut­ing caus­es of wrong­ful con­vic­tion in the death-row exon­er­a­tions between 2007 and April 2017 were:

• Official mis­con­duct (28 cas­es, 82.4%)
• Perjury or false accu­sa­tion (26 cas­es, 76.5%)
• False or mis­lead­ing foren­sic evi­dence (11 cas­es, 32.4%)
• Inadequate legal defense (8 cas­es, 23.5%)
• False or fab­ri­cat­ed con­fes­sion (6 cas­es, 17.6%)
• Mistaken eye­wit­ness iden­ti­fi­ca­tion (4 cas­es, 11.8%)

DPIC Exoneration Database with National Registry of Exonerations Causes (Where Available)

* Non-unan­i­mous jury rec­om­men­da­tion
** Judicial over­ride
-z Appellate acquit­tal, not in NRE

Official Misconduct: Wrongful Capital Prosecutions and 2016 Exoneration Data 

As dis­cussed above, the 2016 data from the National Registry for Exonerations includ­ed evi­dence that the death penal­ty played a role in near­ly a quar­ter of the 54 homi­cide exon­er­a­tions that took place in 2016.

The NRE exon­er­a­tion data reveals at least 13 exon­er­a­tions that involved the wrong­ful use of the death penal­ty. In at least six of the wrong­ful homi­cide con­vic­tions, pros­e­cu­tors had sought the death penal­ty at tri­al. In anoth­er, an inno­cent defen­dant pled guilty to avoid the death penal­ty. And at least six addi­tion­al exon­er­a­tions were the prod­uct of wit­ness­es hav­ing false­ly impli­cat­ed inno­cent defen­dants after police had threat­ened the wit­ness or a loved one with the death penal­ty unless the wit­ness coop­er­at­ed with the investigation. 

There were at least six wrong­ful cap­i­tal pros­e­cu­tions in which pros­e­cu­tors sought death, but juries imposed life:

• Eddie Bolden, IL: Contributing Factors — Mistaken Witness ID, Official Misconduct, Inadequate Legal Defense;
• Keith Harward, VA: Contributing Factors — Mistaken Witness ID, False or Misleading Forensic Evidence, Perjury or False Accusation, Official Misconduct;
• Mark Maxon, IL: Contributing Factors — False Confession, Perjury or False Accusation, Official Misconduct;
• Charles Palmer, IL: Contributing Factors — False or Misleading Forensic Evidence, Perjury or False Accusation;
• Kevin Siehl, PA: Contributing Factors — False or Misleading Forensic Evidence, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense;
• Anthony Wright, PA: Contributing Factors — False Confession, Perjury or False Accusation, Official Misconduct.

There was at least one case in which the wrong­ful threat of the death penal­ty caused an inno­cent defen­dant to plead guilty to avoid the death penalty:

• Paul Gatling, NY: Contributing Factors — Mistaken Witness ID, Official Misconduct.

There were at least three oth­er cas­es, involv­ing six peo­ple exon­er­at­ed in 2016, in which the wrong­ful con­vic­tion was pro­cured by threat­en­ing wit­ness­es that they or their loved ones would face the death penal­ty unless the witness cooperated:

• Carl Dukes and Lavell Jones, NY: Contributing Factors — False Confession, Perjury or False Accusation, Official Misconduct;
• Johnny Small, NC: Contributing Factors — Perjury or False Accusation, Official Misconduct;
• The ​“Norfolk 4” (3 of whom—Joseph Dick, Derek Tice, and Danial Williams—were exon­er­at­ed in 2016), VA: Contributing Factors — False Confession, Perjury or False Accusation, Official Misconduct.

Every one of these wrong­ful con­vic­tions involved either offi­cial mis­con­duct or per­jured testimony/​false accu­sa­tion, and eleven (84.6%) of them involved both.

Race and Official Misconduct in Homicide Cases 

The National Registry of Exonerations report on Race and Wrongful Convictions in the United States reveals that 87% of black death-row exonerees had been vic­tims of offi­cial mis­con­duct, as com­pared to 67% of white death-row exonerees. Official mis­con­duct is among the most dif­fi­cult and time-con­sum­ing of evi­dence to unearth, and so it is not sur­pris­ing that the most recent exon­er­a­tions — many of which have tak­en two decades or more — pro­vide ever stark­er evi­dence of race effects. The NRE data shows that 20 of the last 21 wrong­ly con­demned African Americans (95%) to have been exon­er­at­ed were vic­tims of offi­cial mis­con­duct, as com­pared to 8 of the last twelve white death-row exonerees (67%).

The National Registry reports that these racial dis­par­i­ties are ​“for the most part” the prod­uct of police mis­con­duct. The Registry reports ​“a mod­est dif­fer­ence” in pros­e­cu­to­r­i­al mis­con­duct rates by pros­e­cu­tors in death-row exon­er­a­tions, with pros­e­cu­to­r­i­al mis­con­duct present in 59% of death-row exon­er­a­tions of African Americans, as com­pared to 53% of death-row exon­er­a­tions of whites. However, it report­ed ​“a large dif­fer­ence in the rate of mis­con­duct by police”: 59% for black death-sen­tenced exonerees com­pared to 44% for whites. The Registry reports that “[t]he high rate of mis­con­duct by police in mur­der cas­es with black defen­dants is reflect­ed in the nature of the mis­con­duct that occurs. Concealing excul­pa­to­ry evi­dence, the most com­mon type, is pri­mar­i­ly a form of pros­e­cu­to­r­i­al mis­con­duct; there is rel­a­tive­ly lit­tle dif­fer­ence in its fre­quen­cy by race.… On the oth­er hand, wit­ness tam­per­ing is com­mit­ted almost exclu­sive­ly by police offi­cers” and occurs near­ly twice as fre­quent­ly with black murder defendants.

Comparing Contributing Factors in Homicide Exonerations to Those in Other Types of Crime 

Data from the National Registry shows that offi­cial mis­con­duct and false con­fes­sions are far more preva­lent in homi­cide exon­er­a­tions than in exon­er­a­tions for oth­er types of crimes, and that, apart from child sex­u­al abuse, homi­cide exon­er­a­tions involve per­jury or false accu­sa­tion much more fre­quent­ly than do exon­er­a­tions in oth­er types of cas­es. Mistaken eye­wit­ness iden­ti­fi­ca­tions and false or mis­lead­ing foren­sic evi­dence are present to the same degree in homi­cide cas­es as is most oth­er types of cas­es. The excep­tion is exon­er­a­tions in sex­u­al assault cas­es, which have sig­nif­i­cant­ly high­er rates of both mis­tak­en iden­ti­fi­ca­tions and false or mis­lead­ing forensic evidence.

Footnotes

¹The National Registry does not include in its exon­er­a­tion data­base the three appel­late acquit­tals of Florida death-row pris­on­ers that occurred dur­ing this peri­od. For inclu­sion in its exon­er­a­tion data­base, NRE requires the sub­se­quent dis­cov­ery of evi­dence of inno­cence, which does not occur when a death-row pris­on­er’s con­vic­tion is over­turned and a retri­al barred because the evi­dence was insuf­fi­cient to con­vict in the first instance. The appel­late acquit­tal itself is suf­fi­cient for inclu­sion on DPIC’s exoneration list.

²Although no one who was sen­tenced to death was ful­ly exon­er­at­ed in 2016, the 2016 data from the National Registry for Exonerations includ­ed evi­dence of at least 13 cas­es that involved the wrong­ful use of the death penal­ty, either through wrong­ful cap­i­tal pros­e­cu­tions in which (1) defen­dants were con­vict­ed but avoid­ed the death penal­ty at sen­tenc­ing, (2) defen­dants gave false con­fes­sions to avoid fac­ing the death penal­ty at tri­al, or (3) wit­ness­es pre­sent­ed false tes­ti­mo­ny after being threat­ened that they or a loved one would face the death penal­ty if they did not coop­er­ate with law enforcement.

—Robert Dunham, Executive Director (May 31, 2017)

Earlier Studies

Note: Nearly half of the cas­es includ­ed more than one rea­son for a wrong­ful con­vic­tion. Therefore the total of the cas­es in the chart equals more than 86.

In 2001, the Center on Wrongful Convictions at Northwestern Law School ana­lyzed the cas­es of 86 death-row exonerees. They found a num­ber of rea­sons why inno­cent peo­ple are wrong­ly con­vict­ed in cap­i­tal cas­es. The reasons included:

• eye­wit­ness error — from con­fu­sion or faulty memory. 
• gov­ern­ment mis­con­duct — by both the police and the prosecution
• junk sci­ence — mis­han­dled evi­dence or use of unqual­i­fied ​“experts”
• snitch tes­ti­mo­ny — often giv­en in exchange for a reduc­tion in sentence 
• false con­fes­sions — result­ing from men­tal ill­ness or retar­da­tion, as well as from police torture
• oth­er — hearsay, ques­tion­able cir­cum­stan­tial evi­dence, etc.

The Center for Wrongful Convictions report found that, among these ear­li­er cas­es, eye­wit­ness error was the most com­mon fac­tor in death-row exonerations.

Read the Full Report
Attachment A
Attachment B
Attachment C

For more infor­ma­tion about the rea­sons for wrong­ful con­vic­tions, see:

General:

• Convicting the Innocent: Aberration or Systemic Problem? by Rodney Uphoff, University of Missouri School of Law
• “Exonerations in the United States, 1989 through 2003,” by Samuel Gross, et al., Journal of Criminal Law and Criminology, Vol. 95, No. 2, 2005

Government Misconduct:

• Government Misconduct by the Innocence Project
• Official Misconduct by the Center on Wrongful Convictions

Snitch Testimony:

• The Snitch System by the Center on Wrongful Convictions
• Incentivized Informants by the Innocence Project

Other:

• Inadequate Defense by the Innocence Project

Eyewitness Error:

• Eyewitness Misidentification by the Innocence Project
• Eyewitness Error by the Center on Wrongful Convictions

Junk Science:

• Forensic Science Misconduct by the Innocence Project
• Unreliable and Limited Science by the Innocence Project
• Informants/​Snitches by the Innocence Project

False Confessions:

• False Confessions or Admissions by the Innocence Project
• False Confessions by the Center on Wrongful Convictions

For National Registry of Exoneration infor­ma­tion on the caus­es of con­vic­tion in cas­es involv­ing exon­er­at­ed for­mer death-row pris­on­ers, click here.