Barbara O'Brien

Rate of false conviction of criminal defendants who are sentenced to death

Significance The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States. The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to death. This makes it possible to use data on death row exonerations to estimate the overall rate of false conviction among death sentences. The high rate of exoneration among death-sentenced defendants appears to be driven by the threat of execution, but most death-sentenced defendants are removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.

Examining Jurors: Using Conversation Analysis to Explore the Influence of Race on Prosecutor Speech in North Carolina Capital Jury Selection

Stereotypes about which demographic groups are more or less likely to sentence a defendant to death operate as implicit starting hypotheses in capital cases, informing how attorneys examine jurors during voir dire. This hypotheses-influenced information reinforces the starting stereotypes and potentially exacerbates the influence of the stereotypes themselves on strike decisions. Evidence also suggests that both prosecutors and defense counsel use race as a proxy for bias despite the constitutional prohibition. In these instances, voir dire may serve as a tool to develop race-neutral justifications for the anticipated race-based strikes. In either instance, the voir dire process itself might contribute to the improper influence of race. This study of jury selection for 600 potential jurors across twelve randomly selected North Carolina capital cases uses conversation analysis to look behind the race effects observed in the exercise of peremptory strikes for evidence of ways race influences the process that produces those decisions. We adapted the Roter Interaction Analysis System, a widely used framework for understanding the dynamics of patient–clinician communication during clinical encounters and a framework with well-established reliability and predictive validity, to the legal setting for the first time. Under this rigorous and exacting method of conversation analysis, we assigned one of 46 mutually exclusive codes to every complete thought any speaker expressed. In the analysis presented here, we grouped these codes into mutually exclusive categories of speech based on content and affect. This created a “conversation profile” with four distinct components: education/orientation speech, data gathering speech, relationship building speech, and conflict speech. The findings presented here focus on prosecutors’ conversations with 179 black and white jurors eligible to be dismissed by a state peremptory strike. These findings begin to suggest ways in which the evaluation of fitness for jury service itself is skewed and contributes to racial disparities in jury selection. Prosecutors not only struck potential black jurors at a higher rate, they spoke differently to the black potential jurors they struck, and showed more conflict with black potential jurors overall. Moreover, the racial diversity of the panel of jurors affected the discourse: when the proportion of black potential jurors was bigger, prosecutors engaged in less education and orientation and more data gathering with the black potential jurors. While these findings echo or perhaps restate the overwhelming evidence of racial bias shown by disparate strikes, they provide new insight into ways in which prosecutors may be approaching the decision-making process differently for black and white potential jurors. The results presented here provide an important foundation for future research.