An edited version of Judge Alex Kozinski’s article “Criminal Law 2.0” appeared in
last Friday outlining myths about the fairness of the U.S. criminal justice system. Chief Judge Kozinski has served on the U.S. Ninth Circuit Court of Appeals since 1985.
Judge Kozinski talked about his article and his recommendations for improving the system
last Friday as part of a discussion hosted by the Innocence Project and the Jacob Burns Center for Ethics in the Practice of Law at Cardozo Law School. Judge Kozinski’s article is based in his judicial experience, data and research around wrongful convictions in the U.S., and scientific research on elements of the criminal justice system.
In his piece, Judge Kozinski points to eight myths that perpetuate a false sense of fairness in our criminal justice system, many of which directly contribute to wrongful convictions:
Eyewitnesses are highly reliable
—Kozinski writes that “this belief is so much part of our culture that one often hears talk of a ‘mere’ circumstantial case as contrasted to a solid case based on eyewitness testimony.” He goes on to debunk the reliability of eyewitnesses, pointing to the influence of mistaken eyewitness identification in over a third of wrongful conviction cases recorded by the
National Registry of Exonerations
Fingerprint evidence is foolproof
—Kozinski points to the analysis of fingerprints left in the field as just one of many forensic practices that have a significant error rate. While taking a person’s fingerprints is straightforward, identifying prints (which are often smudged or incomplete) is often incredibly subjective.
Human memories are reliable
—Memory is relied upon heavily in the courtroom because memory has long been regarded as infallible in many ways. In reality, “human memory is fundamentally flawed. The mind not only distorts and embellishes memories, but a variety of external factors can affect how memories are retrieved and described,” writes Kozinski.
Innocent people never confess
—Kozinski stresses the regularity of false confessions and explains that a number of factors, including harsh interrogation tactics, age, and mental health, can and often do lead to people confessing to crimes they did not commit.
Police are objective in their investigations
—Kozinski calls this the “bedrock assumption” of fairness in the system, but explains that: “Police also have a unique opportunity to manufacture or destroy evidence, influence witnesses, extract confessions and otherwise direct the investigation so as to stack the deck against people they believe should be convicted,” which has proven significant in wrongful conviction cases.
Guilty pleas are proof of guilt
—Kozinski highlights the problematic nature of relying on guilty pleas to fully resolve cases. He explains that innocent people often plead guilty to avoid harsher sentencing, and that innocent or not, accepting guilty pleas at face value contributes to the “overcriminalization of virtually every aspect of American life.”
Prosecutors play fair
—While the duty of a prosecutor is explicitly to bring justice, wrongful conviction cases show that some prosecutors value winning a conviction over bringing true justice.
Long sentences deter crime
—Kozinski points to the U.S.’s incarceration and sentencing rates as unreasonably high/long compared to those of other industrialized nations. He regards this as a problem not only because of how long we lock up significant portions of our population, but also because of how costly these rates of incarceration are for American taxpayers.