Judge Alex Kozinski, one of America’s most prominent jurists, has a new article out that attacks many asumptions about criminal justice in the US.
“Much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has been undermined by experience, legal scholarship and common sense,” Kozinski writes in the Georgetown Law Journal.
In his article, Kozinski calls much of the law “guesswork” and points out 12 widely held but largely false beliefs about criminal prosecution in America.
1. Eyewitnesses are highly reliable
Eyewitnesses are highly unreliable, especially when the witness and perpetrator are of different races, or when witnesses are asked to recall a situation in which they were under the stress of violent crime or catastrophe, Kozinski writes. Mistaken eyewitness testimony was a factor in a third of all wrongful conviction cases, according to his article.
Jed Rakoff, another well-known federal judge, made the same point in a Washington Post op-ed this year.
2. Fingerprint evidence is foolproof
Kozinski says prints left in the field are often smudged and incomplete — making them difficult to identify. He adds that when tested by more rigorous scientific methods, fingerprint examiners have a significant error rate.
The National Academies of Sciences has also said the work of fingerprint examiners can be flawed.
3. Other types of forensic evidence are scientifically proven and therefore infallible
Aside from DNA evidence, Kozinski says what is true about fingerprint evidence is doubly true about bloodstain pattern identification, foot and tire print identification, and ballistics.
“Some fields of forensic expertise are built on nothing but guesswork and false common sense,” Kozinski writes.
Recently, the Justice Department exposed major problems with microscopic hair testing in criminal cases.
4. DNA evidence is infallible
Kozinski says the integrity of DNA evidence is often compromised during the collection, preservation, and testing process, and that DNA examiners are not always competent and honest.
As Mother Jones noted in April, “Real-life crime labs are a total mess.”
5. Human memories are reliable
Kozinski, citing a study by cognitive psychologist Elizabeth Loftus, believes the mind not only distorts and embellishes memories, but that external factors affect how memories are recalled and described.
In an interview with Slate, Loftus acknowledged that we’re all capable of fabricating memories.
“We all have memories that are malleable and susceptible to being contaminated or supplemented in some way,” Loftus told Slate.
6. Confessions are infallible because innocent people never confess
Kozinski has found that innocent people confess surprisingly often due to a variety of factors including interrogation tactics, Stockholm syndrome, emotional or financial exhaustion, family considerations, and general feeble-mindedness.
As The New Yorker has reported, police can also produce false confessions by using a certain interrogation technique.
7. Juries follow instructions
Kozinski claims courts know very little of what juries do when they decide cases. Courts have no way of knowing whether juries follow instructions or even whether they understand them, according to Kozinski.
“We have no convincing reason to believe that jury instructions in fact constrain jury behaviour in all or even most cases,” Kozinski writes.
8. Prosecutors play fair
Kozinski believes prosecutors often fail to turn over evidence that could be favourable to the defence, known as exculpatory evidence. In a case called Brady v. Maryland, the Supreme Court ruled that prosecutors have to turn over that evidence. But Kozinski claims there’s an “epidemic” of Brady violations in America.
9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt
In reality, Kozinski writes, the defendant is often at a disadvantage because prosecutors have the chance to argue their case before the defence during a trial.
That’s troubling because of psychological evidence showing that “whoever makes the first assertion about something has a large advantage over everyone who denies it later,” according to Kozinski.
10. Police are objective in their investigations
Kozinski says police have the opportunity to alter or remove evidence, influence witnesses, extract confessions, and more or less lead an investigation in such a way that they can stack the deck against somebody they believe should be convicted.
“There are countless documented cases where innocent people have spent decades behind bars because the police manipulated or concealed evidence,” Kozinski writes.
11. Guilty pleas are conclusive proof of guilt
Kozinski has found that when a defendant believes an outcome is highly uncertain or stacked against them, they might cave and enter a guilty plea to a lesser charge so that they can still salvage a part of their life.
Judge Jed Rakoff has also lamented the fact that 97% of federal criminal defendants plead guilty if their cases aren’t dismissed.
12. Long sentences deter crime
America has 716 prisoners for every 100,000 people — the most of any country in the world, Kozinski notes. America also has much longer sentences than other countries for comparable crimes. Kozinski points out that a burglary charge in the US warrants an average of 16 months in prison, compared with five months in Canada and seven months in England.
“As with much else in the law, the connection between punishment and deterrence remains mysterious,” Kozinski writes. “We make our decisions based on faith.”