The Criminology of Wrongful Conviction

Abstract

This article reflects on the author’s 2005 article, “Rethinking the Study of Miscarriages of Justice,” which sought to describe what scholars empirically knew at that time about the phenomenon, causes, and consequences of wrongful convictions in America. The 2005 article argued that the study of wrongful convictions constituted a coherent academic field of study and set forth a vision for a more sophisticated, insightful, and generalizable criminology of wrongful conviction. In this current article, the author revisits the ideas first developed in “Rethinking the Study of Miscarriages of Justice” to evaluate what scholars have learned about wrongful convictions in the last decade, and what challenges lie ahead for developing a more robust criminology of wrongful conviction. The article concludes that there have been significant theoretical, methodological, and substantive advances in the last decade, but that a root cause analysis of wrongful convictions has yet to come to fruition and urges empirical scholars to begin to study other sources of error and inaccuracy in the criminal justice system. Scholars should develop a criminology of erroneous outcomes, not just of erroneous conviction. By studying both sets of outcomes, scholars can improve accuracy and reduce errors across the board.

Keywords

wrongful convictions miscarriages of justice criminology

Introduction

In 2005, I published in this journal an article titled “Rethinking the Study of Miscarriages of Justice: Developing a Criminology of Wrongful Conviction” (Leo, 2005). The erroneous conviction of the innocent in the American criminal justice system is a deeply troubling and persistent legal and social problem that has long cried out for better understanding and system-wide criminal justice policy reform (Leo & Gould, 2009), and continues to show no sign of abating (National Registry of Exonerations, 2016). Yet, historically, the problem of wrongful conviction has been largely ignored or overlooked by criminologists and empirical criminal justice scholars, especially prior to the development and use of forensic DNA testing in the criminal justice system. Before DNA, most criminologists and empirical legal scholars seemed to be aware that wrongful convictions existed but generally believed they were so rare as to be anomalous, if not freakish, in what was otherwise generally believed to be a criminal justice system that, more or less, routinely produced reliable outcomes. The DNA exonerations in the 1990s and early 2000s, however, “delivered a shock to the system in the world of criminal justice” (Doyle, 2010, p. 145), shattering the “myth of infallibility” that previously characterized most people’s beliefs about the accuracy of convictions in the criminal justice system (Findley, 2010/2011) and giving rise to what Marvin Zalman (2010/2011) has called “innocence consciousness.”

“Rethinking the Study of Miscarriages of Justice” first sought to describe what we empirically know about the phenomenon, causes, and consequences of wrongful convictions in America; then to argue that it constituted a coherent academic field of study, describing its sub-parts as well as its strengths, weaknesses, and problems; and finally to lay out for criminologists and other empirical social scientists a vision for future study, challenging then current assumptions and approaches. Most fundamentally, my 2005 article was an attempt to rethink the study of miscarriages of justice to systematically develop a more sophisticated, insightful, and generalizable criminology of wrongful conviction.

The article has had a surprisingly good reception. It has been downloaded approximately 350 times on the Social Science Research Network (SSRN) and has been cited dozens of times in scholarly articles and books, including repeatedly by many of the leading empirical scholars of wrongful convictions. Zalman and his colleagues have noted that it has strongly influenced innocence scholars and wrongful conviction scholarship (Zalman & Larson, forthcoming). The methodology it proposed was the basis for the National Institute of Justice’s call in 2008-2009 for more than US$600,000 in funding to study the causes of wrongful conviction with greater methodological sophistication. Its call for root cause analysis of wrongful convictions predated the National Institute of Justice’s Special Report (2014). The article has even been hailed as a classic, leading to a session at the annual meeting of the American Society of Criminology in 2015 that was titled, “Reflections on a Classic Ten Years Later: Richard Leo’s ‘Rethinking the Study of Miscarriages of Justice.’” But perhaps most notably, the article inspired an entire edited book by Brian Cutler (2012), Conviction of the Innocent: Lessons From Psychological Research. Cutler (2012) writes as follows:

Leo’s (2005) article was the first that I had encountered that drew some of these research under a larger umbrella . . . His article stimulated me to think about the commonalities and parallels between research on the seemingly independent topics of mistaken identification, false confessions and other causes . . . my first attempt to explore these questions . . . led to a proposal for this book. (pp. 6-7)

In this article, I will revisit the ideas I first developed in “Rethinking the Study of Miscarriages of Justice” to evaluate what we have learned about wrongful convictions in the last 10 years, and what challenges lay ahead for developing a more thoroughgoing and robust criminology and criminal justice of wrongful conviction. I will first review the typology and critique my 2005 article made of the empirical social scientific study of wrongful conviction in America to that point. I will then discuss and analyze what we have learned from the empirical study of wrongful convictions in the last 10 years, and the promise of recent scholarly and policy developments in this area. Finally, I will offer my thoughts about the most promising directions for the future of wrongful conviction scholarship.

Rethinking the Study of Miscarriages of Justice: 2005

In “Rethinking the Study of Miscarriages of Justice,” I argued that there were effectively three genres in wrongful conviction scholarship. The first was what I called big picture studies. Typically motivated by moral outrage and written for lay audiences, these were books (occasionally articles) that overviewed the problem of wrongful convictions in a constitutional democracy, collected cases of wrongful conviction, and discussed the standard legal causes of wrongful conviction (eyewitness misidentification, perjured informant testimony, forensic error, police and prosecutorial misconduct, ineffective assistance of counsel, etc.) and the reforms that should be implemented to lessen or eliminate them. Second, there were what I called the specialized literatures. Undertaken primarily by cognitive and social psychologists, these were more specialized academic and scientific studies and writings about the various individual causes of wrongful convictions, such as those in the area of eyewitness misidentification, child suggestibility, and false confessions. I suggested that these specialized social scientific research literatures might be thought of as subfields of the study of miscarriages of justice. Third, there was what I called the true crime genre. These are true crime case studies, biographies, autobiographies, and semi-biographies that tell the story of how innocent individuals were wrongly prosecuted, convicted, and incarcerated before they were eventually exonerated.

I argued that each of these three distinct genres of scholarship made important contributions to our understanding of, and knowledge about, wrongful convictions, but that they also had many shortcomings. The big picture studies overview our accumulated knowledge of the causes and consequences of, as well as the solutions for, the wrongful conviction of the innocent, garnering the most scholarly attention and citation and sometimes calling attention to old issues in new ways. Yet the books in this genre were, for the most part, written by journalists and lawyers, not criminologists and social scientists, and tended to vary so little that they contained what I called “a familiar plot” that no longer offered much new insight into the problem of wrongful convictions and had largely become an intellectual dead end. I argued that criminologists “must move beyond this intellectual dead end if they wish to advance scholarship and develop a more sophisticated body of theoretically informed and policy-relevant knowledge on this important topic” (Leo, 2005, pp. 207-208).

The specialized literatures were, I argued, largely a success story on their own terms because this body of research, which often involves random assignment and control groups, has been innovative and insightful, and has led to important policy reforms and debates. I held up the experimental work of eyewitness psychologists Elizabeth Loftus and Gary Wells as an example of the successes of this type of research (see Doyle, 2005), though I could have discussed others. However, I argued that the specialized literatures had been relatively ignored by criminologists, and there had been little attempt to connect these specialized psychological literatures to the broader criminological study of wrongful conviction. As I wrote at the time, “one must go beyond the study of individual sources of error to understand how social forces, institutional logics, and erroneous human judgments and decisions come together to produce wrongful convictions” (Leo, 2005, p. 211).

Finally, I argued that true crime books are important because they humanize the problem of wrongful conviction by documenting the history of many individual case tragedies, including some that are not well known. These books are written to reach a popular audience and have often been the basis for television documentaries, shows, plays, and even movies. They tell gripping stories of the reality of wrongful convictions that poignantly illustrate the discrepancy between our legal ideals and the ongoing failures of our criminal justice system. And by trying to reach broad audiences, they have the potential to influence public perceptions of, and policy debates about, wrongful conviction than the entire social science literature on wrongful conviction. As Joseph Stalin once said, “the death of one is a tragedy, the death of millions is a statistic” (Norris, 2015, p. 180). At the same time, however, I criticized popular case-study-type books in the true crime genre as being more descriptive than systematic or analytic, not employing social science methods and frames of analysis, and as typically not building on (and sometimes not even referencing) the academic literature on wrongful convictions. I argued that although books in this genre

tell compelling stories about wrongful convictions, most do not put these stories into a larger context or framework. These books are valuable to scholars as primary data and as a basis for developing theories about, or deeper insights into, the wrongful conviction phenomenon. But, even at their best, they remain small n case studies. (Leo, 2005, p. 212)

I argued that criminologists needed to systematically develop the study of wrongful conviction into a more sophisticated and generalizable body of social scientific knowledge. I argued that to do so, criminologists needed to move beyond the sometimes simplistic and misleading assumptions in some of these literatures and develop a deeper understanding of the psychological, sociological, and institutional causes of wrongful conviction. I further argued that criminologists needed to build theory—frameworks or paradigms for better understanding the general patterns, logics, and characteristics of wrongful conviction cases—to advance the social scientific study of wrongful convictions.

Criminologists need to ask more big-picture questions and try to provide more big-picture answers about how and why the various actors, separately and in coordination, in the criminal justice system produce accurate and inaccurate decisions and results at various stages of the criminal process. (Leo, 2005, p. 215)

I also argued that, methodologically, the field needed to move beyond descriptive case data and exoneration narratives to develop more systematic data about wrongful convictions, while calling, when possible, for greater use of control groups, matched comparison studies, and building databases of rightful acquittals as well as wrongful convictions.

My goal in “Rethinking the Study of Miscarriages of Justice” was to encourage social scientists to develop the empirical study of the wrongful conviction of the innocent into a more theoretically informed and methodologically sophisticated field of study within the discipline of criminology. I argued that our collective body of knowledge about the causes, characteristics, and consequences of wrongful conviction needed to be more valid and reliable.

The Criminology of Wrongful Conviction: A Decade Later

Introduction

Have we developed a more thoroughgoing social science and criminology of wrongful conviction in the last decade? Do the substantive, methodological, and theoretical critiques I asserted in “Rethinking the Study of Miscarriages of Justice” still hold? And what is the future of the empirical study of wrongful conviction? What should it be? The rest of this article is my attempt to briefly answer these questions.

As in 2005, the present continues to be an exciting time to be researching and writing about the wrongful conviction of the innocent. The field has developed in some ways that were predictable and in other ways that neither I nor anyone else could have foreseen 10 years ago. There continues to be an explosion of academic writing on the phenomenon of wrongful conviction, but, as in the prior decade, it remains striking that most of this scholarship continues to be by lawyers and legal scholars and thus has mostly appeared in law reviews rather than peer-reviewed social science or criminology journals. Still, although there remains much room for improvement, arguably there has never been more or better scholarship, a point I will develop in more detail below, on what happens (and why) when justice miscarries for the factually innocent, as well as the best policy remedies. Both quantitatively and qualitatively, we now know more about the sources, correlates, characteristics, and effects of wrongful convictions of the innocent than ever before.

From my perspective, the most important empirical development in the scholarly study of wrongful convictions in the last decade has been the creation of the National Registry of Exonerations, an online database of exonerations in the United States since 1989. Launched in May 2012 by Sam Gross and Rob Warden and housed at the University of Michigan Law School, the Registry currently lists 1,889 exonerations. In less than 5 years, the National Registry has become the most authoritative source on wrongful convictions in our era, listing more than 5 times as many non-DNA exonerations as DNA exonerations, a ratio that continues to grow. In short, the Registry has, by sheer virtue of the number of cases it has exposed and the amount of information it has collected, created a treasure trove of data for scholars. The Registry offers the possibility for greater empirical insight and understanding into the problem of wrongful conviction and its solutions than ever before.

The National Registry of Exonerations has changed how scholars and journalists classify and count wrongful convictions. The Registry moved away from actual or factual innocence (what used to be called “wrong man errors”) to a more legalistic definition of an exoneration that is essentially an erasure of a preexisting conviction by a governor, prosecutor, judge, or jury based on some new evidence of factual innocence. The theory underlying the Registry’s definition of an exoneration is that it is the best proxy and least biased approach for classifying wrongful convictions of the innocent that are otherwise mostly invisible. Studying exonerations as a proxy for factual innocence allows researcher access to more valuable information and data—about the regularity, distribution, causes, correlates, and consequences of many near certain wrongful convictions—than would be available if we limited ourselves to solely to those fewer cases in which we can prove factual innocence to an absolute certainty. The Registry has demonstrated that the problem of convictions of the innocent is persistent and systemic, not merely episodic and aberrational, and the almost 2,000 exonerations (so far) catalogued by the Registry to date have allowed us to better identify and study—quantitatively and systematically—patterns and variation in the many sources of error that lead to wrongful convictions, giving us a better understanding of the nature and scope of the problem and the best error-reduction strategies.

Nevertheless, the empirical study of wrongful conviction in American criminology continues to feel sparse. Although their numbers have grown in the last decade, there are still comparatively few criminologists who research and write about wrongful conviction. Even though almost no phenomenon could be more central to how the criminal justice system works (than studying when, how, and why it does not), mainstream criminology and mainstream criminologists have largely ignored the study of wrongful conviction, in effect rendering it peripheral to the discipline (but, for some counterexamples, see Cole, 2009; Forst, 2004; Shlosberg, Mandery, West, & Callaghan, 2014; B. Smith, Zalman, & Kiger, 2009; Webster & Miller, 2014/2015; Wildeman, Costelloe, & Schehr, 2011; Zalman, Larson, & Smith, 2012). There is no journal of wrongful conviction and no division on wrongful conviction within the American Society of Criminology or Academy of Criminal Justice Sciences; sessions on wrongful convictions at their annual conferences, if organized, are few and far between, and they are typically moderately or poorly attended; and no peer-reviewed study of wrongful conviction has ever been published in the American Society of Criminology’s flagship journal, Criminology. For the most part, criminologists—and sociologists—of wrongful conviction are missing in action. To the extent there even exists a criminology or criminal justice—as opposed to a social science or socio-legal study—of wrongful conviction, it is a boutique and highly non-disciplinary field. Yet, I will argue, the research and scholarship in each of the genres I identified in “Rethinking the Study of Miscarriages of Justice” has gotten better, sometimes much better, in the last decade.

The Big Picture Studies

Although it still appears to me that the big pictures studies, as I described them in 2005, follow a familiar and repetitive structure (more or less what Zalman, 2010/2011, has subsequently called the “innocence paradigm”), there have been at least three promising developments in this genre in the last decade. These developments demonstrated that the big picture studies—and in particular the data sources on which they are based—are capable of being more dynamic and original than I had imagined in 2005.

First, Brandon Garrett published the best big picture book study ever by far, Convicting the Innocent, in 2011. Comparing Garrett’s (2011) Convicting the Innocent with Scheck, Neufeld, and Dwyer’s (2000) Actual Innocence shows just how far this genre has traveled in a mere decade. Although it reports many findings, and makes many arguments, that scholars of wrongful conviction already knew in broad outline, Garrett’s study is an important contribution to the criminology of wrongful conviction both because of his unique access to the case files and trial transcripts of the first 250 DNA exonerations, and because of his systematic empirical analysis of this unique data set. To be sure, Garrett examined the standard “canonical” so-called causes of wrongful convictions (e.g., eyewitness misidentification, false confession, jailhouse informant testimony, forensic error and fraud, police and prosecutorial misconduct, ineffective assistance of counsel, etc.), and he recommended the standard canonical policy solutions (e.g., less suggestive lineups, electronically recorded interrogations, greater documentation and scrutiny of jailhouse informant testimony, independent crime laboratories, open-file discovery, more funding for public defense, greater access to DNA testing, etc.). And to be sure, like all big picture books, Convicting the Innocent tells many stories and is atheoretical from a social science perspective. But Convicting the Innocent is neither derivative nor merely anecdotal; importantly, it systematically analyzes, both qualitatively and quantitatively, the findings of, and insights from, this unique data set. In 2011 when Garrett published Convicting the Innocent, the first 250 DNA exonerations were the most important and impressive data set on wrongful convictions, yet at that time, only Garrett had access to it. Based on Garrett’s astute analysis of the patterns and variation in these cases, Convicting the Innocent provides a wealth of empirically informed policy-relevant knowledge and recommendations.

Although Garrett’s Convicting the Innocent is the best book in the big picture genre, the ground on which these studies has traditionally stood is now shifting. Taken from the Innocence Project and scanned by the Chicago-based law firm Winston & Strawn, Garrett’s underlying data set (to my knowledge, with the exception of the trial transcripts that his teams of law librarians collected) is now essentially electronically available to journalists, independent writers, and scholars who make an application to the Innocence Project and is approved. More importantly, the DNA exoneration cases are no longer the most impressive or significant data set for empirical wrongful conviction scholars. Instead, as mentioned above, the National Registry of Exonerations has now amassed an impressive collection of nearly 2,000 (mostly non-DNA) exonerations since 1989 that quantitatively dwarfs the Innocence Project’s set more than 5 times over, is growing at a much higher rate, and contains a wider variety of cases. To be sure, the National Registry documents innocence-based exonerations, conservatively and legally defined, not wrongful convictions in the traditional sense (i.e., wrong man errors). Because they measure innocence indirectly, the National Registry’s exonerations are, in effect, a proxy for the actual innocence (Leo, forthcoming). Nevertheless, the National Registry has become the most authoritative data set of wrongful convictions, if by proxy. Based exclusively on publicly available documents, the National Registry is an online repository and searchable database for anyone who visits their website, and more data on the cases, and the National Registry of Exoneration’s coding of the cases, may be made available to scholars, independent writers, and journalists who make an application and are approved. Sam Gross and his colleagues produce regular updates (National Registry of Exonerations, 2015) on their evolving database, as well as more focused studies on issues related to a subset of the cases (Gross & Shaffer, 2012). And already empirical scholars of wrongful conviction have begun to research, write, and publish empirical studies based on a subset of cases from the National Registry’s database (Covey, 2013; Thomas, forthcoming). The National Registry may be the wave of the future for the next generation of American wrongful conviction studies in the big picture genre.

This is because collecting original aggregated case study data for big picture studies is very expensive, time-consuming, and messy. In 2009, Jon Gould and I received a large grant from the National Institute of Justice to do a big picture study of wrongful convictions of a different sort, a project that could not have been possible without substantial funding and a team of research assistants. We collected 260 erroneous convictions of the innocent as well as 200 “near misses” (cases in which factually innocent individuals were arrested, charged, and/or prosecuted but never convicted because their cases were either dismissed pre-trial or they were acquitted at trial). We asked an important research question that no one else had previously addressed with data and that could not be answered by analyzing any previous big picture study data set: Why are some factually innocent individuals who are arrested and charged erroneously convicted while others are not? In other words, what factors explain these two different case outcomes? This is implicitly a causal question, so we reviewed the so-called canonical “causes”—which are more accurately described as correlates or sources—of wrongful conviction (eyewitness misidentification, perjured informant testimony, false confessions, forensic error/fraud, etc.). But the only way to answer this research question is to have a comparison group, which was made possible by our unique collection of near miss cases. Although I called for exactly this type of matched comparison study in “Rethinking the Study of Miscarriages of Justice” in 2005, no one had previously analyzed near misses (i.e., the rightful non-conviction of the innocent).

Using logistic regression analysis, our study found that some of the traditional sources of error—such as intentional eyewitness misidentification, forensic error, prosecutorial withholding of exculpatory evidence, and low-quality defense counsel—statistically predicted the difference between wrongful conviction and rightful non-conviction of the innocent in this data set. Other traditional sources of error (e.g., jailhouse informant testimony, false confessions, and honest eyewitness misidentifications) were not statistically predictive, though these findings were still instructive (e.g., false confessions are highly statistically predictive of wrongful conviction if they were entered into evidence against a defendant at trial). In addition, other factors such as a state’s death penalty culture, a defendant’s age, criminal history, and family or friends as alibi witnesses predicted a statistically significant greater likelihood of wrongfully conviction. I will have more to say about the research design of this study later in the article, but for now with innovative data and/or research questions, big picture studies can break out of the familiar plot and intellectual dead end that I complained of in “Rethinking the Study of Miscarriages of Justice.”

The Specialized Literatures

Perhaps not surprisingly, the already excellent specialized literatures have continued to grow and improve in the last decade. The scientific psychological study of eyewitness identification remains the gold standard (see Cutler, 2013; Lampinen, Neuschatz, & Cling, 2012), though disputes have recently broken out (see Clark, 2012; G. L. Wells, Steblay, & Dysart, 2012) in a field that was previously characterized by near universal consensus (G. L. Wells et al., 1998) and which had appeared to be evolving, almost in Kuhnian fashion, from one paradigm to the next (Doyle, 2005). Although the psychological science no longer speaks with one voice, the empirical study of eyewitness identification and testimony remains robust, methodologically rigorous and substantial. It numbers in the thousands of studies and contains generally accepted findings and principles that have been the foundation for numerous policy reforms across the country, many of which were discussed and endorsed in a recent National Academy of Sciences Report (2014), Identifying the Culprit: Assessing Eyewitness Identification.

Perhaps the most impressive strides in the specialized literatures since 2005 have been made in the scientific study of false confessions, many of which were reviewed in Kassin et al., (2010) “White Paper” for the American Psychology-Law Society that was published in Law and Human Behavior. There have been substantially more, and more sophisticated, studies of interrogation and confession in the last decade. Particularly impressive has been the game-changing experimental research on the “diagnosticity” of various interrogation techniques and strategies (i.e., experimentally measuring the ratio of true to false confessions elicited by various interrogation methods; Narchet, Meissner, & Russano, 2011; Russano, Meissner, Narchet, & Kassin, 2005), and experimental, documentary, and clinical research on the situational and dispositional risk factors for false confession (Kassin et al., 2010; Leo & Drizin, 2010). There has also been important survey research—not only of undergraduates but also of demographically matched jury-eligible adults as well as actual jurors—on public attitudes, knowledge, and misconceptions about police interrogation and false confession (Blandon-Gitlin, Sperry, & Leo, 2011; Chojnacki, Cicchini, & White, 2008; Costanzo, Shaked-Schroer, & Vinson, 2010; Henkel, Coffman, & Dailey, 2008; Leo & Liu, 2009); entirely new line of experimental research on “secondary confessions” (i.e., incentivized confessions that are more analogous to jailhouse informant testimony; Swanner & Beike, 2010; Swanner, Beike, & Cole, 2010; Wetmore, Neuschatz, & Gronlund, 2014); and new research adding to our understanding of the long-noted biasing effects of false confession evidence on triers of fact (Appleby, Hasel, & Kassin, 2013; Appleby & Kassin, 2016; Kassin, 2012; Leo, 2008; Marion, Kukucka, Collins, Kassin, & Burke, 2016; Wallace & Kassin, 2012). There have also been a number of excellent books on police interrogation and false confession, employing a wide range of methodologies, in the last decade (see, for example, Lassiter & Meissner, 2010; Leo, 2008; Warden & Drizin, 2009).

One truly remarkable work of scholarship in the specialized literature genre is Dan Simon’s (2012), In Doubt: The Psychology of the Criminal Justice Process. This book is a brilliant master synthesis of psychological research across various specialized literatures (eyewitness identification, human memory, interrogation/confessions, detection of deception, etc.) to explain how investigative and adjudicative breakdowns occur in different types of cases leading to erroneous convictions. Simon identifies and analyzes how police sometimes gather and elicit unreliable evidence at the investigative phase (particularly testimonial evidence such as eyewitness identifications, confessions, and informant testimony) and why, once such erroneous incriminating evidence is created, our fact-finding procedures at trial are not well-suited to separate the innocent from the guilty. In Doubt has been described—correctly in my opinion—as the best book ever written on wrongful convictions (Thomas, 2012), yet, ironically, Dan Simon has stated that it is not a book about wrongful convictions per se (Simon, 2014). Regardless, what makes In Doubt extraordinary is that it synthesize the specialized literatures to answer the big picture questions about how and why wrongful convictions occur and what can be done to prevent them better than any of big picture study books or articles do.

The True Crime Genre

As before, exoneration narratives continue to be published about single and multiple wrongful conviction cases, some well known (Burns, 2011; Carter, 2011; Cary, 2014; Echols, 2012; Kennedy, 2016; Knox, 2013) and others not (Bonner, 2012; King, 2014; Masters & Lehto, 2012; Siegal, 2012; Strauss, 2010). Some of the books in the true crime genre are technically not exonerations because either the defendant or defendants, though almost certainly innocence, were never officially cleared (DiStefano, 2007; Liebman, 2014; Morris, 2012; C. S. Smith, 2012; St John, 2013; Tjapkes, 2006) or they were never convicted in the first place (Ferak, 2014; Hollins & Womack, 2012; Lueders, 2006; Stuart, 2010; Taylor & Johnson, 2007). These true crime stories continue to be written for a general audience, tell compelling and tragic stories, and humanize the plight of the wrongly accused, prosecuted, convicted, incarcerated, and/or executed. And they continue to be valuable because they document outrageous cases of police and prosecutorial misconduct; defense incompetence; judicial arrogance, indifference, and stupidity; jury mistakes; and systemic-wide error in the criminal justice system. As Zalman (2010a) has noted, they show the complexity of investigations, trials, appeals, and exonerations. As I argued in 2005, these books represent law in action, and the few that reach broad audience have more potential to affect public perceptions, policy debates, and legal change than academic studies on wrongful conviction.

I also criticized exoneration narratives in the true crime genre as being of limited scholarly value for not referencing or building on social science research literature on wrongful convictions, for being more descriptive than analytic, for failing to put their stories in a larger framework or context, and for not generalizing beyond the case under study. Although I still believe this critique to be generally accurate, I wrote a true crime genre book about a multiple wrongful conviction, The Wrong Guys: Murder, False Confessions and the Norfolk Four (T. Wells & Leo, 2008), that sought to rise above these criticisms by educating the reader about the social science research on various sources and processes of error (e.g., tunnel vision, bogus polygraphs, coercive interrogation, false confessions, forensic error and fraud, police and prosecutorial misconduct, sham plea bargains, ineffective assistance of counsel) while attempting to seamlessly weave these discussions into the narrative. At least one well-known wrongful conviction scholar was somewhat critical of the non-academic book (Zalman, 2008/2009), but it did reach a wide audience, including some celebrities; was written about by Jeffrey Toobin in The New Yorker magazine; inspired an excellent and widely viewed PBS documentary on the case; and appears to have instrumental in leading to the conditional pardon and release of three of the Norfolk Four by then Virginia Governor Timothy Caine (one had already been released). But, in the end, The Wrong Guys—if we take an academic perspective—likely illustrated both the strengths and the weakness of wrong man stories in the true crime genre.

Although I have no data to support this observation, it is my impression that exoneration books in the true crime genre in the last decade have, like much empirical wrongful conviction research, evolved and improved. Like me, Bryan Stevenson (2014) has also written a true crime exoneration narrative that draws on academic research and seeks to place the miscarriage of justice he describes (Walter McMillian) in a broader context and framework (Stevenson, 2014). It also appears to me that a higher proportion of exoneration narratives in the last decade have been written by professional writers and accomplished professionals. This includes not only award-winning journalists (Bonner, 2012; Flowers, 2016; Siegal, 2012; Taylor & Johnson, 2007) and high-profile lawyers (Cary, 2014; C. S. Smith, 2012; Stevenson, 2014) but also famous novelists (Grisham, 2006; Vollen & Eggers, 2005), accomplished filmmakers and their progeny (Burns, 2011; Burns, McMahon, & Burns, 2012; Morris, 2012), and respected law professors (Liebman, 2014; A. Smith, 2008; T. Wells & Leo, 2008), thereby elevating the quality of the writing, the depth of the storytelling, and necessarily broadening the context of the narratives. In addition, unlike when I wrote “Rethinking the Study of Miscarriages of Justice,” there are now several books that contain, whether in the first or third person, multiple wrongful conviction true crime stories from different cases, thus inviting comparative analysis and generalization across cases (Fenton, 2015; Flowers, 2016; Lance & Pope, 2015; Vollen & Eggers, 2005).

The Fourth Genre: Subject Matter Studies

A reasonable question to ask is whether the three genres of wrongful conviction scholarship—the big picture studies, the specialized literatures, and the true crime genre—capture all the variation in empirical wrongful conviction scholarship. Perhaps half-seriously, I might suggest that since 2005, another genre of wrongful conviction scholarship has emerged befitting a field that may be finally moving past its adolescence: the edited volume. While rare before 2005 (Westervelt & Humphrey, 2001), in the last decade, numerous edited volumes on the problem of wrongful convictions have appeared (Cooper, 2014; Cutler, 2012, 2013; Huff & Killias, 2008, 2013; Lassiter & Meissner, 2010; Ogletree & Sarat, 2009; Rossmo, 2009; Thompson, Hopgood, & Valderrama, 2011). A couple of the more recent ones are, on the whole, quite good (Redlich, Acker, Norris, & Bonventre, 2014; Zalman & Carrano, 2014), and contain serious contributions that aspire to push the criminology of wrongful conviction forward conceptually or methodologically (see, for example, Bonventre, Norris, & West, 2014; Doyle, 2014; Lofquist, 2014; Zalman, 2014a, 2014b). The value of edited volumes is that the authors can cover a wide range of topics with far greater expertise and insight than any single author typically can. The disadvantages of edited volumes, however, are that they often do not cohere as well as original works; they often lack originality or are derivative of previously published works; and they tend to be uneven and sometimes repetitive. Rarely do scholars, especially in scientific disciplines, save their best work for edited volumes. With the passage of time, edited volumes often seem like no more than this year’s music, soon to be so quickly forgotten.

More seriously, there is another type of book advancing the study of wrongful convictions that I did not describe among the genres in “Rethinking the Study of Miscarriages of Justice”: special subject matter books that look at the relationship between a particular institution, process, practice, subject, or research question and the problem of wrongful conviction. In the last decade, there have been a number of excellent subject matter books on various aspects the problem of wrongful conviction. These include (but are not limited to) the following: innocence commissions (Gould, 2008), the supreme court and wrongful convictions (Thomas, 2008), the death penalty and innocence (Baumgartner, De Boef, & Boydstun, 2008), police interrogation (Leo, 2008), snitching (Natapoff, 2009), prosecutorial error and misconduct (Medwed, 2012), life after exoneration (Westervelt & Cook, 2012), law enforcement’s resistance to scientifically informed best practices (Harris, 2012), the relationship between acquittals and actual innocence (Givelber & Farrell, 2012), shaken baby syndrome and miscarriages of justice (Tuerkheimer, 2014), forensic science crime labs and wrongful convictions (Thompson, 2015), and a history of the innocence movement (Norris, 2015). These books have allowed scholars to plumb a subject matter, and its relationship to the problem of wrongful conviction, more deeply and more systematically than would be possible in studies in any of the three other genres.

Theory

In “Rethinking the Study of Miscarriages of Justice,” I argued that the criminology of wrongful conviction was theoretically impoverished and relied on simplistic assumptions, confusing “legal” causes of erroneous convictions with root causes. I argued that this causal confusion impeded our theoretical understanding and development of the deeper psychological, sociological, and institutional causes of wrongful conviction, and that criminologists needed to seek out root causes of wrongful conviction if they wished to develop theories, frameworks, or paradigms for better understanding the general patterns, logics, and characteristics of wrongful conviction cases. I further argued that criminologists needed to ask more big picture questions and try to provide more big picture answers about how and why the various actors, separately and in coordination, in the criminal justice system produce accurate and inaccurate decisions at various stages of the criminal process, from investigation to charging to trial and conviction and sentencing. I suggested psychological, sociological, and organizational foci and questions that that criminologists should ask to develop theory.

In the last decade, several scholars have pushed back on my suggestions, essentially arguing that they are overly positivistic and too narrowly concerned with causal explanations of wrongful conviction outcomes. Norris and Bonventre (2015) have argued that criminologists need to broaden and pluralize the meaning of theory in the study of wrongful convictions, and that criminal justice theory is already implicitly present in some innocence scholarship, and they reconceptualize what they call “theoretical perspectives” as “conceptual frameworks.” Norris and Bonventre (2015) argue that:

A broad theoretical approach may help address some of the difficulties associated with miscarriages research . . . [it is] difficult, if not impossible, to adequately develop a definitive causal theory of erroneous outcomes. However, if we view theory as a broad framework that can help us better understand phenomenon, even if not amenable to strict quantitative testing, we can move to a new realm of thought and discourse regarding miscarriages of justice, seeing the issue from different angles, and developing new, interesting questions that will expand our understanding of the justice system, its strengths, and its weaknesses. (p. 933)

Norris and Bonventre then survey five theoretical orientations or perspectives (forced reaction theory, the crime control and due process model, a political orientation, a social constructionist approach, and critical criminology) to illustrate how “these perspectives are useful for organizing and interpreting thoughts, concepts, and data about criminal justice” (p. 934) and “encourage discussion and debate, and generate new questions that can be asked about miscarriages of justice” (p. 943).

Lofquist (2014) too endorses a more theoretical understanding of wrongful convictions, even a causal one, but advocates for studying the structural sources and political context that produce wrongful convictions. Lofquist argues that because we cannot reliably identify or measure erroneous convictions, the miscarriages we study are not representative of the problem of wrongful conviction. According to Lofquist, we are therefore stuck in “an empirical trap” that impedes the development of a more rigorous causal social science of wrongful conviction. Instead, Lofquist argues that we need to move beyond the standard “catalog of errors” approach, and look at the social conditions and dimensions of wrongful conviction, which result from an overly punitive, class-based, and racialized criminal justice system. Lofquist argues that we need theory to better understand the characteristics of vulnerable defendants and the social structural, racial, and organizational dynamics of unreliable convictions. In effect, Lofquist is arguing for a critical criminological approach to the study of wrongful convictions, one of the five conceptual frameworks discussed by Norris and Bonventre (2015).

Perhaps more than any other criminologist, Marvin Zalman has taken my 2005 call to theorize wrongful convictions seriously. Zalman’s contributions to social science theory in the study of wrongful convictions have been significant in two ways. First, in the last decade, Zalman has thoughtfully incorporated mid-level theory into several of his own empirical studies of various aspects of wrongful conviction (see, for example, Zalman & Larson, forthcoming). Second, he has written more, and thought more deeply, about theory in the criminological study of wrongful conviction than anyone else, including myself. Zalman, in effect, positions himself between the more traditional and positive position that I (and Jon Gould) have taken regarding building causal and explanatory theories in understanding how and why wrongful convictions occur, and the more perspectival and conceptual frameworks and macro approaches of Norris, Bonventre, and Lofquist (Leo, 2005; Leo & Gould, 2009). To this end, Zalman distinguishes between “theory” and “theoretical orientations” (Zalman, 2014b, p. 283)—I and Jon Gould have proposed the former, whereas Norris, Bonventre, and Lofquist are essentially proposing the latter—and recommends a more eclectic than single-perspective approach while emphasizing the value of grounded theory (Glaser & Strauss, 1967; Zalman, 2014b).

I more or less agree with how Zalman (2014b) has recently framed the theoretical assumptions and approach that I recommended in “Rethinking the Study of Miscarriages of Justice,” and that I and Jon Gould have subsequently written about and sought to execute in several articles (Gould, Carrano, Leo, & Hail-Jares, 2014a, 2014b; Gould & Leo, 2016; Leo & Gould, 2009). It is idiographic rather than nomothetic. It asks both “how” and “why” questions, and it seeks to account for and explain variation in a social phenomenon with the best data and methods available. It values typologies because they condense vast amounts of information, capture variation in a phenomenon, and create a vocabulary of useful concepts. It seeks causal explanation of past events to better understand and predict future events, recognizing that causation of any social phenomenon like the wrongful conviction of the innocent is likely to be multifactorial and multidimensional, complex, contingent and expressed in probabilities and tendencies rather than in simple or linear bivariate relationships. It seeks generalizable findings, models, and explanations that are both valid and reliable.

That said, I believe that my call for theory building in the criminology of wrongful conviction may have been at least partially misunderstood. I never suggested a causal or positive theory building approach to the exclusion of all other conceptual frameworks or approaches. In “Rethinking the Study of Miscarriages of Justice,” I implicitly endorsed a more eclectic approach since I was, and remain, concerned with theoretically understanding wrongful convictions at multiple levels of analysis (e.g., psychological, organizational, sociological). I never asserted that there should only be one theoretical orientation or grand unifying theory nor did I suggest that the theoretical approach I was recommending is value free. Instead, theory building and application must always be guided by the research questions we pursue and the theories or frameworks that are best suited to analyzing and answering these questions. In the 85 years since Edwin Borchard (1932) launched the empirical study of wrongful conviction—a field created by lawyers and journalists that has been inherited by modern social scientists and criminologists—it has been obsessed with wrongful conviction causation and error reduction. Two domain questions have animated the field: Why do innocent individuals get wrongly convicted (hence the canonical list of legal evidentiary errors), and what can criminal justice system do to prevent these miscarriages of justice (hence the canonical list of suggested policy reforms that flow from the canonical list of legal evidentiary errors). These are cause–effect questions. Traditional positive causal theory is the most well-suited social science approach to answering these questions, but other theoretical frameworks or orientations may be better suited to other research questions.

There is, of course, much value in an eclectic approach to theories and theoretical orientations, as Zalman (2014b) argues. Whether emphasizing causation or not, conceptual frameworks are very important, if not essential, to make sense of and understand the world around us; without them, we are left with only an overwhelming mass of undifferentiated facts. Conceptual frameworks help us ask better research questions, find the signals in the noise, identify patterns, and connect the dots. But, at the same time, conceptual frameworks and theoretical orientations can create blind spots, lead us to overvalue some findings and explanations to the exclusion of other more plausible or superior ones, and even become worldviews or ideologies that lead to bias, tunnel vision, and false confidence. It is important to realize that theories and theoretical orientations are not created equally nor are they equally useful in describing, understanding, explaining, or predicting complex social phenomena like the wrongful conviction of the innocent.

Drawing conceptually on earlier sociological research on organizational error (Perrow, 1984; Vaughn, 1996), James Doyle (2010, forthcoming) has advanced an innovative and potentially game-changing framework in the last decade that conceives of wrongful convictions as complex organizational accidents “in which small mistakes (no one of which would suffice to cause the event), combine with each other and with latent defects in the criminal justice system to create disasters” (Doyle, 2010, p. 109). Doyle’s argument is both empirical and normative. Doyle (forthcoming) observes that “the criminal justice system is a target-rich environment for empirical study” (p. 1) and that we need to be “ready to learn the lessons that the data teach” (p. 2). Drawing from the study of error in other fields such as aviation, engineering, medicine, and industrial investigations, Doyle (2010) argues that we should treat errors—“the confluent, cascading failures in any individual case” (p. 125)—as helpful to promote a culture of safety by learning from them through “routine, candid, non-adversarial examination of error” (p. 147). When Doyle (forthcoming, p. 3) asks, “Who was responsible for this wrongful conviction?” he replies that “the right answer . . . is usually ‘everyone involved, to one degree or another.’” While such an answer is neither parsimonious nor discerning, it seeks astutely to move us beyond individual or single-cause explanations for wrongful convictions to more systemic and etiological ones that emphasize routine mistakes, feedback loops, reciprocal impacts, interaction effects, latent conditions, and cumulative error, among other factors, to more accurately understand the causes and cures of wrongful convictions.

The contributions of Norris, Bonventre, Lofquist, Zalman, and Doyle in the last decade have been, in varying degrees, important. These authors have suggested theoretical orientations, frameworks, and approaches for better understanding how and why wrongful convictions occur, and what can be done to remedy them, the two domain questions of the criminology of wrongful conviction. But, nevertheless, our sociological understanding of the wrongful conviction phenomena is not really that much better than when I wrote “Rethinking the Study of Miscarriages of Justice” in 2005 nor have social scientists sought out or analyzed the root causes of wrongful convictions in quite the way that I had hoped a decade ago.

Method

One thing clear from the above analysis is how closely connected theory and methods are in the empirical study of wrongful convictions. In “Rethinking the Study of Miscarriages of Justice,” I argued that the empirical study of wrongful conviction had mostly been limited to the methods of lawyers and journalists, and that the narrative methodology of case-driven descriptive research, though valuable, was limited (Leo, 2005; Leo & Gould, 2009). I also noted at that time that there are several reasons why it is not easy to empirically study wrongful convictions, including the difficulty of locating cases, the need for researchers to assemble data sets of cases anew each time, the impossibility of random samples, and the difficulty of determining the ground truth of innocence in alleged wrongful conviction cases. I further noted that even under the best of circumstances, the problem of generalization (and representativeness) will always confound wrongful conviction researchers to some extent, resulting in some unknown margin of error in the generalizations made. Because the aggregate case study methodology (i.e., collecting only cases of wrongful conviction in the aggregate) cannot reveal factors uniquely associated with wrongful conviction of the innocent (because there is no control group), I argued for the use of matched sample comparison methodology, noting that it had been used in only one study to that point (Harmon, 2001).

We have made some impressive methodological and data gathering advances in the last decade. First, as discussed earlier, the Innocence Project’s database of DNA exonerations has grown to approximately 350 cases, and the National Registry of Exonerations’ database now contains close to 2,000 non-DNA and DNA exonerations. Both websites publish basic descriptive information, about the “causes” of each wrongful conviction case they list, as well as aggregate statistical information and/or reports. Both websites, with approval by application, may provide researchers with access to the underlying case materials in their possession and/or coding of their cases.¹ This has seemingly solved the problem of researchers needing to locate and assemble cases and create databases anew.

Second, both websites propose to offer answers, albeit very different ones, to the ground truth problem that has long bedeviled empirical wrongful conviction scholars. The Innocence Project takes the position that the DNA exonerations listed on their website are cases of “stone cold” innocence, and so far, no one has proven them wrong. By contrast, the National Registry takes the position that it is virtually impossible to know with certainty whether or not someone is factually innocent. However, they believe that their conservatively defined criteria for innocence-based exonerations provide the best available direct measure of factual innocence, much like an X ray may be the best available direct measure for an underlying health condition. Elsewhere I have analyzed the rewards and risks of this strategy (Leo, forthcoming). While the National Registry acknowledges that there may be cases of rightful conviction within their data set, they believe this number is likely to be a very small percentage of the total number of cases. Both the Innocence Project and the National Registry of Exonerations correctly note that their databases necessarily dramatically undercount the true number of wrongly convicted individuals since 1989.

Third, since I wrote “Rethinking the Study of Miscarriages of Justice,” there have been several empirical studies employing a matched comparison sample methodology (Garrett, 2008; Gross & O’Brien, 2008; Harmon & Lofquist, 2005). Elsewhere, Jon Gould and I have reviewed these studies (Leo & Gould, 2009). And, as discussed earlier, we have recently conducted our own matched comparison sample studies (Gould et al., 2014a, 2014b; Gould & Leo, 2016), showing that it is possible to use quasi-experimental designs to isolate factors that statistically predict the difference between wrongful convictions and rightful/dismissals of the innocent. We have also demonstrated that it is possible to assemble and study “near misses,” a previously untapped but fertile source of data which prominent wrongful convictions scholars have called for studying (Doyle, 2010, forthcoming; Zalman, 2010b)

Finally, and more generally, the empirical study of wrongful convictions has made impressive strides in the last decade across a variety of methodologies, as Bonventre et al. (2014) have noted. Empirical scholars have used the following qualitative and quantitative methodologies to study wrongful convictions and their aftermath: single and aggregated case studies; archival and documentary analyses; comparison/control, quasi-experimental, and experimental studies; survey studies; interview-based studies; and ethnographic fieldwork. Although it is still dominated by the traditional narrative methodology of journalists and lawyers, the empirical study of wrongful conviction has already become far more diverse and sophisticated than it was a mere decade ago. As Zalman (2014b) notes, wrongful convictions are an inherently sprawling and messy phenomenon to study. As the field moves forward and continues to grow, some of the primary methodological challenges will be to identify and gather more diverse sources of data, especially wrongful convictions in cases other than sexual assault and homicide; to employ more multimethod designs where possible; and to use research strategies and approaches that allow us to seek out convergent validity (i.e., the use of multiple methodologies, each with different strengths and weaknesses, to arrive at similar findings).

Conclusion: Back to the Future

In this article, I have revisited the arguments I made in “Rethinking the Study of Miscarriages of Justice” in 2005, and against that backdrop, I have evaluated how the empirical study of wrongful conviction has evolved in the last decade and what we have learned. I have argued that there have been advances in each of the three genres I previously identified (big picture studies, the specialized literatures, and the true crime genre)—albeit in varying degrees—and that a fourth genre (subject area studies of wrongful conviction) has emerged. I have also argued that there have been important developments in our thinking about theoretical orientations and conceptual frameworks, as well as in the array and increasing sophistication of empirical methods that have been used to study the sources, correlates, characteristics, consequences, and aftermath of wrongful convictions since 2005. Although it may appear that I am endorsing a more eclectic approach to the social scientific study of wrongful convictions than I did a decade ago, I have always advocated using the most useful available theories and methods to answer the specific research question(s) in front of us. Since its inception, the empirical study of wrongful conviction has always been—and continues to be—obsessed with two “domain” questions: (a) What causes wrongful convictions, and (based on the answer(s) to that question), (b) how can we remedy them? Despite important and impressive advances in the criminology of wrongful conviction in the last decade, I would argue that there remain no great works of sociology on these questions and that my call for a root cause analysis of wrongful convictions has yet to come to fruition. Still, the criminological study of wrongful conviction has advanced in ways I would not have predicted a decade ago, and for that reason, I am more optimistic now than I was then about its future.

To advance our knowledge and understanding of wrongful convictions, criminologists must, of course, continue to conduct theoretically informed and empirically grounded research that builds on our accumulated knowledge. But I believe it is now time for empirical scholars also to begin to study other sources of error and inaccuracy—that have virtually been altogether ignored by social scientists—in the criminal justice system. We need to develop a criminology of erroneous outcomes, not just of erroneous convictions. This means studying not only wrongful convictions and near misses (i.e., rightful dismissals and acquittals of the innocent) but also the wrongful dismissals and acquittals of the guilty (as well as their rightful conviction). To be sure, there is no worse error that the criminal justice system itself causes than the wrongful conviction of the innocent. But, the system makes other errors as well, which can be both instructive and harmful. As Dan Simon (2012) reminds us, the American criminal justice system for structural reasons—it privileges proceduralism over reliability and is driven by human inputs that are fraught with bias and error—is highly inaccurate in its factual determinations and in its determinations:

[T]he investigative process produces evidence that is bound to contain unknown quantities of truth and error, and the adjudicative process is ill equipped to distinguish between the two. The limited accuracy of criminal investigations, compounded with the limited diagnosticity of criminal adjudication, lead to the conclusion that the criminal justice process falls short of delivering the precision that befits its solemn epistemic demands and the certitude it proclaims. (p. 208)

If Simon is correct, it is reasonable to hypothesize that the limited accuracy of criminal investigations and the limited diagnosticity of criminal adjudication produce not only many false positives but also many false negatives. Our empirical goal should be to study and better understand both sets of outcomes so that we can improve accuracy and reduce error across the board (Findley, 2008).

Footnotes

Acknowledgements

I thank Marvin Zalman for helpful comments on an earlier draft of this article and for organizing the session “Reflections on a Classic Ten Years Later: Richard Leo’s ‘Rethinking the Study of Miscarriages of Justice,’” at the American Society of Criminology meeting in November 2015. I also thank Brian Cutler, Jon Gould, Rob Norris, and Marv for their comments at that session.

Author’s Note

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biography

Richard A. Leo, PhD, JD, is the Hamill family professor of law and psychology at the University of San Francisco and formerly a tenured professor of criminology, law, and society, and psychology and social behavior at the University of California, Irvine.

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