Duke Law School hosted a working conference on decision making in the criminal justice process on Nov. 30 and Dec. 1, an event designed to spark dialogue and research that could help reduce incidents of wrongful convictions. The conference brought prosecutors, police investigators, defense lawyers, and judges from around North Carolina together with academic researchers from the fields of law, neuroscience, psychology, and organizational behavior to exchange insights on how decisions are made at various pre-trial stages as well as research related to decision making.
The conference, titled “Accuracy & Error,” was crafted as a dialogue among all attendees in an effort to launch further inquiry and research and pave the way for eventual practice and policy improvements that could reduce ─ or eliminate ─ wrongful convictions. While rare, wrongful convictions are generally traceable to some form of error, such as reliance on faulty eyewitness identification, false confessions, or ‘tunnel vision’ of participants in the investigative process.
“We are trying to change the culture relating to efforts to improve the quality of criminal justice, and particularly the accuracy of investigations,” said James Coleman Jr., the John S. Bradway Professor of Law and director of the Center for Criminal Justice and Professional Responsibility (CCJPR), which sponsored the conference along with the Duke University Provost and the Duke Center for Interdisciplinary Decision Science (D-CIDES).
“What we have learned from the work that we do is that mistakes that result in miscarriages of justice can be avoided with a more systematic and thoughtful approach to decision-making during the course of an investigation, by all of the actors ─ defense lawyers, police, prosecutors, and judges. We believe we have resources and knowledge at Duke that can help improve decision making in the criminal justice system. This is a first step to creating a process that allows that to happen,” Coleman said.
The daylong conversation on Dec. 1 was structured around short presentations from leading national social science and legal scholars on such matters as the psychological contributors to false confessions, racial bias in policing, faulty and suggestive eyewitness identification, and psychological factors in the prosecutorial process. Presentations relating to how behavioral genetics and neuroscience factor into decision making and are used in criminal cases were offered by Duke Professors Nita Farahany and Lasana Harris. Each presentation sparked spirited, reflective discussion enriched by the diversity of the participants’ perspectives. At various points the group considered case studies that illustrated where errors were made or avoided, and why. The conversation also included a comparative perspective, with the participation of Alan Gold, a leading Canadian defense lawyer, and a discussion of how neuroscience evidence is being used in domestic and foreign courts. (See below for a complete list of papers offered by conference presenters.)
Neil Vidmar, the Russell M. Robinson II Professor of Law and Professor of Psychology, who serves as research director for CCJPR and was the principal organizer of the conference, said it “achieved far more than we expected by beginning a serious dialogue with prosecutors as well as others, such as defense lawyers, who are focused on innocence.”
He and other conference organizers were particularly gratified to enlist the participation of 15 current and former prosecutors, thanks in large part to enthusiastic support from Ben David, the president of the North Carolina Conference of District Attorneys and the elected DA for New Hanover and Pender Counties, who offered a keynote address.
“I’ve always believed that our client, as prosecutors, is justice,” David said in an interview in advance of the conference. Citing a favorite passage from the 1935 U.S. Supreme Court decision in Berger v. U.S. on the role of the prosecutor, he added, “We are not out to win at all costs and secure convictions; we’re here to do justice. It’s the prosecutor’s job to advocate for justice in all cases.
“We know it’s a human system, and any time you have human beings there will be error. We are going to try to do our level best to reduce and hopefully eliminate the errors that lead to wrongful convictions. No one wants innocents to suffer.”
David told the conference participants that he welcomed the opportunity to engage on these matters outside of the adversarial process, observing that incidents of wrongful conviction as well as false allegations of misconduct by police and prosecutors corrode public trust in the justice system.
“While we are in an adversarial process, this is not an issue we need to fight about,” he said in his keynote address. “All of us have a shared interest in making sure that if there are errors or blind spots [in the process] we correct them.”
Bringing science and law together
Vidmar, a social scientist and leading expert on jury behavior, points to the post-conviction innocence work of Coleman and Theresa Newman ’88 as one spark for the gathering. Together with current and former students in Duke’s Wrongful Convictions Clinic and Innocence Project, and with the cooperation of prosecutors and some police investigators, the two have recently secured the release of four North Carolina men who were serving long prison sentences but who were factually innocent of the crimes for which they were convicted. Examination of the case files revealed different sources of error that, if avoided or identified before trial, could have prevented the wrongful convictions, Vidmar said.
“I found the basis of these errors and the decision making involved fascinating,” he said, noting that his interested deepened as he sat in on his colleagues’ Wrongful Convictions class as well as a seminar on prosecutorial ethics taught at Duke Law by federal prosecutor Dennis Duffy and former prosecutor Clay Wheeler ’97. “I was particularly interested in the interface of the police and the prosecutors, and even the judges and how it all fit together,” he said. “We know they go after the bad guys, but sometimes there are errors. So with this conference, we wanted to learn more about the process ─ how decisions go right, and how decisions go wrong.”
Part of an interdisciplinary working group of Duke University social scientists undertaking an ongoing conversation on matters related to decision making, Vidmar laid the groundwork for “Accuracy & Error” by facilitating a 2010 symposium on decision making in the criminal justice system; it was attended by Duke Law faculty and Duke scholars from the disciplines of neuroscience, medicine, sociology, economics, anthropology, history, and psychology. For the sponsors of that event, bringing more prosecutors, investigators, and judges into the conversation was a natural next step.
“It was good to have the perspectives of practitioners who are out there in the community and dealing with this as an applied problem,” said Professor Scott Huettel, director of D-CIDES, who studies decision making from a scientific perspective. “It’s pretty rare to have a conference at an academic institution that has that sort of depth of community involvement. It wasn’t just the academics lecturing but, rather, a sense that we were all trying to find solutions to real world problems together.”
The conversation continues
As a springboard for discussion and research, the conference was a resounding success, said Vidmar, adding that it substantially furthered his long term goal to empirically study prosecutorial decision making.
North Carolina Superior Court Judge Carl Fox, a former district attorney, called the discussion “beneficial and extremely informative and helpful.” Having recently been one of three judges to find error caused a North Carolina man to spend 24 years in prison for a crime he did not commit, Fox said he hoped conference presentations could be condensed and shared in other forums of judges, public defenders and prosecutors. “When there is error, it tends to have some pretty damaging effects,” he said. “The discussions [at the conference] were very, very eye-opening. So I think there’s a lot to be gathered from sharing that information with others.”
The prosecutors also found it highly worthwhile and appreciated the overall tenor of the discussion, said Ben David.
“I think everyone was very pleased with the fact that even in an adversarial system, we agreed on the need to eliminate errors to the greatest extent possible.” Taking a scientific approach to decision making ensured the discussion was both enlightening and objective, he added, offering, by way of examples, discussions on race and justice, led by UCLA psychologist Phillip Goff and on “dehumanization,” led by Duke psychologist and neuroscientist Harris. “They confirmed that most errors are not due to intentional conduct,” David said. “They may arise from putting people into certain categories based on untested assumptions that prove to be wrong. We discussed how that can influence decision making, whether it’s at the time of arrest or later in the process ─ through prosecution or sentencing. And if we can recognize that those blind spots exist in all of us ─ not just in white police officers, say, but in African American defense attorneys ─ we can start to understand how justice can be more fairly applied in all situations.”
Like the researchers in attendance, David hopes the dialogue will be ongoing; to that end, he announced at the conference that the N.C. Conference of District Attorneys had secured a $20,000 grant from the Governor’s Crime Commission to facilitate a follow-up event.
“The prosecutors are all in,” he said. Like Vidmar, David pointed to the importance of cementing relationships that took root in a gathering of prosecutors, defense counsel, law enforcement officials, and jurists engaged in frank discussion with the common goal of improving the justice system.
“One of the most important things that can come from this is not just information sharing ─ and that’s critical ─ but the relationships of trust that can be formed,” he said, noting that conversations continued after the conference ended. “That begins, hopefully, forming friendships that will survive an event and start a process.”
“Accuracy and Error” ─ Relevant papers:
Ben David, “Community-Based Prosecution in North Carolina: An Inside-Out Approach to Public Service at the Courthouse, On the Street, and in the Classroom,” 47 Wake Forest L. Rev. 373 (2012)
Nita A. Farahany and James E. Coleman Jr., “Genetics, Neuroscience, and Criminal Responsibility,” in The Impact of Behavioral Sciences on Criminal Law, Nita A. Farahany, (Oxford University Press, 2012).
Phillip Atiba Goff and Kimberly Barsamian Kahn, “Racial Bias in Policing: Why We Know Less Than We Should,” 6 Social Issues and Policy Review, 177 (2012)
Lasana T. Harris and Susan T. Fiske, “Social neuroscience evidence for dehumanised perception,” 20 European Review of Social Psychology, 192 (2009)
Richard A. Leo and Deborah Davis, “From false confession to wrongful conviction: Seven psychological processes,” 38 The Journal of Psychiatry & Law, Spring-Summer 2010
Neil Vidmar, James E. Coleman Jr., and Theresa A. Newman, “Rethinking Reliance on Eyewitness Confidence,” 94 Judicature, 16 (July-August 2010)
Gary L. Wells and Dean S. Quinlivan, “Suggestive Eyewitness Identification Procedures and the Supreme Court’s Reliability Test in Light of Eyewitness Science: 30 Years Later,” 33 Law Hum. Behav., 1 (2009)
Alafair S. Burke., “Prosecutorial Agnosticism,” 8 Ohio St. J. Crim. L. 79 (2010-2011)