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How the Pretrial Process Contributes to Wrongful Convictions

NCJ Number
American Criminal Law Review Volume: 42 Issue: 4 Dated: Fall 2005 Pages: 1123-1167
Andrew D. Leipold
Date Published
45 pages
This paper suggests that one of the causes of wrongful convictions is pretrial criminal procedures, which, even when properly conducted, can distort the collection and presentation of exculpatory evidence.
This argument is made by examining several of the steps an accused person experiences between arrest and trial. The focus is on how the procedural rules affect the accuracy of specific pretrial judgments. The analysis shows how pretrial doctrines are made to serve a variety of interests, including efficiency, community safety, witness convenience, and the avoidance of perjury. In serving these interests, pretrial procedures sometimes compromise the collection and identification of exculpatory evidence. The cumulative effect of these compromises in the course of pretrial procedures is to make it more difficult for an innocent defendant to present a persuasive and comprehensive defense. Part I of this paper frames the discussion and provides working definitions of the terms to be used. Part II reviews the law that governs a variety of pretrial procedures, including pretrial release, the venue decision, challenges to pretrial delay, joinder rules, and the government's disclosure obligations. This part of the paper shows how doctrinal efforts to achieve a variety of institutional goals can unintentionally impede the innocent defendant's ability to find and present evidence that can expose a flawed prosecution case. Part III discusses the implications of the analysis, arguing that the cumulative effect of pretrial procedures is to ensure that defense cases are so weakened that a certain percentage will inevitably result in wrongful convictions. 205 notes