From the abstract of Jules Epstein’s The Great Engine that Couldn’t: Science, Mistaken Identifications, and the Limits of Cross-Examination:
Wigmore’s assertion that cross-examination is the greatest engine for the search for the truth comes with a caveat: it works best for the untruthful witness, or for eliciting facts known to the witness but not acknowledged on direct examination. In the typical eyewitness-based prosecution, neither condition obtains. The eyewitness is not untruthful but may be mistaken; and eyewitnesses do not know the factors [weapons focus, the deleterious effect of stress on eyewitness accuracy, the problem of "own-race bias" in cross-racial crimes] that may have caused the mistake.
This article traces cross-examination to its origins and demonstrates that its utility (as originally intended and as developed over centuries) is limited in eyewitness cases. The article concludes that other tools – better jury instructions, and the use of expert witnesses – are essential to ensure a complete search for truth in identification cases.
From the abstract of Mourning Miranda by Charles D. Weisselberg:
The article presents new field research about police interrogation tactics and training and discusses that research in light of recent science literature and judicial decisions. I argue that the safeguards of Miranda v. Arizona have become ineffective, not because police are deliberately disobeying Miranda, but because officers have learned how to take advantage of rulings that have critically weakened Miranda’s supposed protections.Miranda’s warnings and waivers were intended to afford custodial suspects an informed choice between speech and silence, and prevent involuntary statements. But there never was evidence to show that a system of warnings and waivers could actually protect the Fifth Amendment privilege against self-incrimination. Since Miranda was decided, the Supreme Court has encouraged police practices that have effectively gutted Miranda’s safeguards. This paper presents police training materials that are not generally available to the public. Training is a primary link between the Court’s pronouncements and the way in which interrogations are actually conducted. Combined with the social science literature, these training resources demonstrate how the warning and waiver regime coheres with a sophisticated psychological approach to police interrogation, rather than operate apart from it, as the Court intended.
I also argue that Miranda is now detrimental to our criminal justice system. It is bad enough that Miranda’s vaunted safeguards appear not to afford meaningful protection to suspects. But following Miranda’s hollow ritual often forecloses a searching inquiry into the voluntariness of a statement. I am skeptical that the courts may retool Miranda’s procedures. I suggest other possibilities, including legislation.
From the abstract of Samuel R. Gross’s Convicting the Innocent (to appear in Annual Review of Law & Social Science, Vol. 4, 2008):
We’ve learned a lot about false convictions in the past 30 years. For example, we now know that more than 2% of death sentences in America are based on false convictions, that innocent African American men are more likely to be falsely convicted of rape than innocent white men, especially if the victim is white, and that innocent teenagers accused of murder are more likely to falsely confess than innocent adults. We also know that prosecutorial misconduct and ineffective legal defense are common in the cases of innocent defendants who are convicted of rape and murder, as are eyewitness misidentifications, false confessions, fraud or error by forensic analysts, and perjury by jailhouse informants.But there is much more that we do not know. Almost everything that we have learned about false convictions is based on exonerations in rape and murder cases, which together account for only 2% of felony convictions. The exonerated defendants we know about were almost all convicted at trial rather than by guilty plea (unlike the vast majority of convicted defendants, even in rape and murder cases), and sentenced of death, life imprisonment, or decades behind bars. Our image of a false conviction is derived from these exonerations: a heinous crime of violence for which an innocent defendant is convicted at trial, after a difficult and troubled investigation, and sentenced to death or life in prison. There is every reason to believe that the vast majority of false convictions bear little resemblance to this picture.
This article explores some of the categories of false convictions that almost never come to light: innocent defendants who are convicted of crimes that did not occur (as opposed to crimes committed by other people), who are sentenced in juvenile court, who plead guilty, who receive comparatively light sentences – in fact, almost all innocent defendants who are convicted of any crime other than rape or murder. Judging from what we can piece together, most false convictions are not dramatic errors caused by recklessness or serious misconduct, but commonplace events: inconspicuous mistakes in ordinary criminal investigations that never get anything close to the level of attention that sometimes leads to exonerations