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One-Third of Wrongful Convictions Involve Police Manipulation of Evidence. With ‘Victim-Centered’ Investigations, It May Get Worse.

Center for Prosecutor Integrity

January 21, 2021

The National Registry of Exonerations has catalogued every exoneration in the United States since 1989. Recently the NRE published a report on the long-standing problem of police misconduct. Titled, “Government Misconduct and Convicting the Innocent,” the document is based on the review of 2,400 exonerations (1). Overall, the analysis found that 35% of the cases involved police officer misconduct and 30% implicated prosecutorial misconduct.

The document reveals that police actions that lead to a conviction of an innocent person typically involve the manipulation of evidence in order to increase the likelihood of a conviction. The manipulation of evidence by police officers falls into five categories (some cases fell into more than one category):

  1. Witness Tampering — 13% of wrongful convictions
  • Procuring false testimony — Inducing a civilian witness to testify to facts the officer knows the witness did not perceive (3% of wrongful convictions)
  • Tainted identifications – Deliberately inducing a witness to identify a suspect during a lineup, whether the witness recognizes that suspect or not (7% of wrongful convictions)
  • Improper questioning of a child victim – Repeated, insistent, and suggestive questioning of a child, precluding the child from denying that he or she was a victim of sex abuse (3% of wrongful convictions)
  1. Misconduct in Interrogations – 7% of wrongful convictions
  • Actual or threatened violence
  • Sham plea bargaining and other lies about the law
  • Threats to relatives and other third parties
  1. Fabricating Evidence – 10% of wrongful convictions
  • Fake crimes – Making false claims as ordinary lay witnesses, saying the defendant committed a crime that never happened, often involving the planting of contraband (5% of wrongful convictions)
  • Forensic fraud – Presenting false evidence against the defendant, concealing/distorting true evidence that might have cleared them, or planting false evidence (3% of wrongful convictions)
  • Fabricated confessions – Making up confessions by the defendants that in fact did not occur (2% of wrongful convictions)
  1. Concealing Exculpatory Evidence – 7% of wrongful convictions
  • Impeachment of prosecution witnesses:
    • Incentives provided to testify
    • Inconsistent statements
    • Criminal records and histories of dishonesty
  • Substantive evidence of innocence:
    • Forensic tests
    • Alternative suspects
    • Evidence that the defendant did not commit the crime
  1. Perjury at Trial – 13% of wrongful convictions
  • False statements about the conduct of investigations
  • False statements about witness statements

Overall, there were only small differences in percentages of official misconduct for White versus Black exonerees. But for murder cases, 78% of Black exonerees, compared to 64% of White exonerees, experienced official misconduct. The misconduct disparity was even greater for drug crimes: 47% among Blacks and 22% for Whites.

As noted above, misconduct by police officers contributed to 35% of the 2,400 wrongful convictions. The NRE report reveals that virtually all of the cases consisted of actions designed to manipulate the evidence to increase the likelihood of a conviction. A majority of the cases involved the direct manipulation of evidence – fabricating and concealing evidence, and making false statements at trial. The remaining minority of cases involved the indirect manipulation of evidence by means of witness tampering and misconduct in interrogations.

What are prospects for the future?

In recent years, activists have been promoting the use of so-called “victim-centered” approaches, both in the criminal justice system and on college campuses. A recent announcement from the International Association of Chiefs of Police, for example, makes the claim that “victim-centered” approaches “can support victim recovery and engagement with the criminal justice system” and “promote enhanced victim and community safety while helping law enforcement solve and prevent crime.” (2)

Despite the feel-good aura of this gauzy description, the reality of “victim-centered” approaches is that they compromise investigative impartiality, bias evidence against the defendant, and predispose to wrongful convictions. Victim-centered methods (3):

  • Presume the guilt of the defendant and refer to the complainant as a “victim”
  • Avoid asking probing or detailed questions in order to not “retraumatize the victim.”
  • Reflexively attribute inconsistencies in the complainant’s statements to life-threatening trauma.
  • “Cherry-pick” the evidence in order to increase the likelihood of a finding of guilt.
  • Write the investigative report in a way to portray the sexual contact as non-consensual.

One Department of Justice report, “Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence,” went so far as to urge victim-centered investigations to hand “control of the process back to the victim” (p. 9) and even allow the complainant “to request certain investigative steps not be conducted” (p. 13). (4)  The ill-considered report was later removed without explanation or notice. The original DOJ press release with the defunct link can still be seen online (5).

If we want to curb the police manipulation of evidence and ensuing wrongful convictions, we need to discourage the use of “victim-centered” approaches, and work to restore police investigations that are impartial, balanced, and fair (6).