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Commentary

Justice can be blind, but it also can be phony

Judges are reassuring figures. Their dispassionate approach, caution and knowledge of the law bolster our confidence in America’s cherished system of justice. Except when they point out why much of that confidence is misplaced. Or advise us that, as Ninth Circuit Court of Appeals Judge Alex Kozinski puts it, “Although we pretend otherwise, much of what we do in the law is guesswork.”

Kozinski, whose federal court’s jurisdiction includes Arizona, has written a heavily footnoted article in the Georgetown Law Journal that argues that “much of the so-called wisdom that has been handed down to us about the workings of the legal system … has been undermined by experience, legal scholarship and common sense.”

Among his examples:

Eyewitnesses are highly reliable. Research, Kozinski says, shows that eyewitness identifications are in fact highly unreliable, especially where the witness and the offender are of different races. Their reliability is further weakened when the identification occurs under the stress of violence or other traumatic event – “which,” he notes, “pretty much covers all situations where identity is in dispute at trial.”

Fingerprint evidence is foolproof. Not quite. Prints from crime scenes are often smudged and incomplete, and the identification process can become “more art than science.” When tested by rigorous scientific methods, he says, fingerprint examiners turn out to have a significant error rate.

Other types of forensic evidence are scientifically proven and therefore infallible. Not even. “What goes for fingerprints goes double and triple for other types of forensic evidence” – except, in most cases, for DNA evidence. Kozinski said that voice identification error rates are as high as 63 percent, handwriting error rates average around 40 percent, and false-positive error rates for bite marks run as high as 64 percent. Also “the subject of considerable doubt” are bloodstain pattern identification, foot and tire print identification and ballistics. Many defendants, he claims, have been convicted on evidence by arson experts “who were later shown to be little better than witch doctors.”

DNA evidence is infallible. True enough, Kozinski says, as long as the procedure is done by an honest, competent, trained professional. But don’t relax yet: This assumes that the evidence was gathered correctly and not contaminated in the field or in the lab. Even DNA evidence, he concludes, “is only as good as the weakest link in the chain.”

Human memories are reliable. Maybe not. Kozinski notes that much of what goes on in court is based on humans’ memories. But scientific research has shown that our minds regularly distort and embellish memories, and that a variety of factors can affect how memories are retrieved and described. “Given the malleability of human memory,” he says, “it should come as no surprise that many wrongful convictions have been the result of faulty witness memories ….”

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Confessions are infallible because innocent people never confess. Nope. “Innocent people do confess with surprising regularity.” This can occur because of “harsh interrogation tactics, a variant of Stockholm syndrome, the desire to end the ordeal, emotional and financial exhaustion, family considerations and the youth or feeble-mindedness of the suspect. The result? “[R]emarkably detailed confessions that are later shown to be utterly false.”

Police are objective in their investigations. We hope. Kozinski calls thisthe bedrock assumption of our criminal justice process” because police officers decide – among other things – what leads to pursue, which witnesses to interview, and what forensic tests to conduct. This means “police also have a unique opportunity to manufacture or destroy evidence, influence witnesses, extract confessions and otherwise … stack the deck against people they believe should be convicted.” Kozinski cites a recent Washington Post article in which the U.S. Justice Department and FBI “formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence … over more than a two-decade period before 2000.”

Guilty pleas are conclusive proof of guilt. Negative. For one thing, he says, prosecutors can charge multiple counts for a single incident — thereby pressuring defendants with a “life-shattering sentence” if they refuse to plead and are convicted at trial, and can demonstrate creativity in “hatching up criminal cases where no crime exists.” For another, most defendants are likely to have little faith in the justice system, adding to their incentive to plead guilty to a charge “that will allow the defendant to salvage a portion of his life.”

Not too reassuring. Kozinski doesn’t claim that American justice runs off the rails in most cases, or even many cases. But he does raise two compelling questions: First, how confident are we that every one of the 2.2 million people in prisons and jails across the country is actually guilty? And if we can’t be sure, then “what is an acceptable error rate?” A 1 percent error rate, he notes, would mean that 22,000 innocent people are wrongly imprisoned. Is that OK? “These numbers may seem tolerable,” he says, “unless, of course, you, your friend or loved one draws the short straw.”

Morrison Institute for Public Policy is a leader in examining critical Arizona and regional issues, and is a catalyst for public dialogue. An Arizona State University resource, Morrison Institute uses nonpartisan research and communication outreach to help improve the state's quality of life.

Bill Hart is a senior policy analyst at Morrison Institute for Public Policy.

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Looking up at the statue of Blind Justice on front of the Albert V. Bryan United States Courthouse in Alexandria, Va., a 1994 work by American sculptor Raymond Kaskey.

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