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The U.S. criminal legal system rests on the proposition that convicting an innocent person is a greater injustice—and more harmful to society—than allowing a guilty person to go free.  

As a core concept of due process, it supports the presumption of innocence granted to defendants in criminal trials and the burden to prosecutors of proving guilt beyond a reasonable doubt.

The legal establishment has long assumed that the American public also shares that view – and when called as jurors, will weigh evidence and decide whether to convict or acquit in a way that minimizes the risk of a wrongful conviction.

But that assumption is wrong, according to research by Duke Law Professor Brandon L. Garrett, director of the Wilson Center for Science and Justice and author of Defending Due Process: Why Fairness Matters in a Polarized World (Polity, 2025) in collaboration with Gregory Mitchell, a professor at the University of Virginia School of Law.

The findings challenge long-accepted norms of criminal procedure and raise important implications for how due process protections are implemented in criminal trials.

“For far too long, constitutional criminal procedure, evidence law, and trial practice have assumed jurors will impartially test a prosecution’s case,” Garrett and Mitchell write in Error Aversions and Due Process.

“We call into question that assumption and suggest a different path for criminal procedure.”

Reframing a key question to reveal new insights

A foundational premise of due process was articulated in 1765 by English jurist William Blackstone, who wrote in Commentaries on the Laws of England, “[I]t is better that ten guilty persons escape than that one innocent suffer.” The idea entered English law and, subsequently, U.S. common law, and is at the core of due process protections that favor defendants in criminal trials: the presumption of innocence and burden of persuading a jury of proof “beyond a reasonable doubt.”

While judges, attorneys, legal scholars, and even the U.S. Supreme Court accept Blackstone’s principles as a moral and legal cornerstone of criminal procedure, public attitudes on the issue have been based for the past 40 years on answers to a single question in the General Social Survey (GSS), a biannual survey of U.S. residents conducted by the National Opinion Research Center at the University of Chicago.

When asked whether it is worse to convict an innocent person or to let a guilty person go free, 74% of respondents, on average, have said convicting an innocent person is the greater error of justice.

Garrett, Mitchell, and their collaborators framed the question differently, asking a total of more than 12,000 people:

Which of the following errors at trial do you believe causes more harm to society?

• Convicting an innocent person is much more harmful (13%)
• Convicting an innocent person is somewhat more harmful (7%)
• Failing to convict a guilty person is much more harmful (8%)
• Failing to convict an innocent person is somewhat more harmful (9%)
• The two errors are equally bad (63%)

Only 20% of respondents said convicting an innocent person is either “much” or “somewhat” more harmful than falsely acquitting a guilty person. The majority—63%—said both errors are equally bad. And those beliefs aren’t easily categorized by demographics or ideological leanings.

The implications for juries

The researchers found consistent correlations between jurors’ views on false acquittals and false convictions and the rate at which they chose to convict: 

• Jurors more worried about wrongful convictions were consistently less likely to convict, with an average 40.5% conviction rate over four mock juror studies. They were also more skeptical of state’s evidence against the defendant, suggesting a pro-defense bias.
• Jurors more worried about false acquittals were consistently more likely to convict, with an average 61% conviction rate over four mock juror studies. They were also more likely to rate state’s evidence as strong, suggesting a pro-prosecution bias.
• Jurors who believe both errors are equally bad voted to convict at a rate between the two extremes, with an average 48% conviction rate over four mock juror studies.

Garrett and Mitchell suggest juror bias has to do with “legal personality” – a person’s beliefs and attitudes about the rights of victims, the rights of the accused, and civil liberties, and the way they perceive crime and public safety.

Recommended solutions

Garrett says the findings suggest reducing the reliance on burden of proof and presumption of innocence as a bulwark against wrongful convictions. While judges may discuss jurors’ responsibility to adhere to such concepts under due process, those instructions are interpreted subjectively.

“We expect jurors to bring their unique perspectives and values to the jury room, and it is naive to think that judicial instructions can meaningfully alter jurors’ legal personalities,” Garrett and Mitchell write.

Suggestions for reform include:

• Strengthening the cases brought to trial by restricting the admissibility of low-quality evidence such as questionable expert testimony and unreliable eyewitness accounts
• Querying potential jurors on their attitudes toward false convictions and false acquittals during jury selection to identify biases and secure a fair and impartial jury
• Emphasizing the greater harm of convicting an innocent person during closing arguments – and reminding jurors who may be inclined to convict in a close case that falsely convicting an innocent person will still result in a guilty person going free
• Applying special appellate scrutiny to cases that carry a higher risk of wrongful conviction, such as those that rely on a single witness

He notes that while the findings may alarm the legal establishment, they show a level of alignment among the American public on broader issues of criminal justice. The majority of jurors, after all, care equally about controlling crime and treating the accused fairly.

“The public is not well-served by false dichotomies,” Garrett said. “Convicting the wrong person is not just a fairness concern but also a public safety concern. When an innocent person languishes in prison, a guilty person goes free.”