Friday, September 04, 2009

n% of false convictions involved X; therefore ...?

In Benn v. United States the District of Columbia Court of Appeals comes close to embracing the following argument: "X% of false convictions resulted from cases in which eyewitness identification evidence was given; therefore, eyewitness identification should be [limited] [regulated]." See id., 2009 WL 2778266, *6 n. 49 (September 3, 2009) (draft opinion).

Dear Reader, does the following logic hold?:

(i) 100% of false convictions resulted from cases in which judges were involved; therefore, the use of judges in criminal cases should be [abolished] [limited] [regulated].

(ii) A high percentage of false convictions resulted from cases in which defense counsel were involved; therefore, the use of defense counsel in criminal cases should be [abolished] [regulated] [limited].

(iii) 100% of false convictions resulted from cases in which evidence was involved; therefore, the use of evidence in criminal cases should be [abolished] [regulated] [limited].

Can we agree that while it might (or might not) be a good idea to abolish, regulate, or limit the use of eyewitness identifications, judges, defense counsel, or evidence simpliciter in criminal cases, the statistics cited above do nothing to support the proposition that any of the suggested things should be done in any of the the above situations. Isn't that true? (It is.)

Incidentally: constitutional considerations aside, if the above statistics show or suggest that the use of eyewitness identification evidence should be [further] regulated or limited, does this thesis also hold when the eyewitness identification evidence is offered by a criminal defendant? If not, why not?

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Inanities of the sort mentioned above sometimes make me think it's time for me to retire. Is it really necessary to re-learn, re-teach, and re-hash basic principles of evidence to the judiciary? (E.g.: "Children, remember that a brick does not a wall make. And keep in mind that sometimes the cases come out the way they should. Don't we need to know how often that happens? Yes, children....") I grow weary.

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Undoubtedly I would feel differently if I had been convicted of a crime as a result of mistaken eyewitness identification evidence. Therefore?

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This is not to say that there are no things that could be done (at an acceptable price) to improve the accuracy of eyewitness identification evidence and reduce the frequency of false verdicts.

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