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					          Toward a Model Act for the
     Prevention and Remedy of Erroneous
  Michael J. Saks, Lauri Constantine, Michelle Dolezal, Jennifer Garcia,
 Carrie Titus, Gary Horton, Tom Leavell, Jonathan Muntz, Londa Rivera,
        Jennifer Stewart, Fredrica Strumpf & Holly VanderHaar 
                              I. INTRODUCTION
   When a person who has been wrongly convicted and imprisoned is later
excluded as the perpetrator by DNA typing, 1 that person is thereby exon-
erated more convincingly than had ever been true of cases of exoneration
in the past.2 While returning innocent individuals to freedom from wrong-
ful imprisonment has unquestionable value, DNA exonerations have cre-
ated the potential for making far more important improvements in our
criminal justice system. Indeed, DNA typing has opened an exceptionally
valuable window through which to view the criminal justice system.
   By analyzing the now-visible cases of wrongful conviction, we can dis-
cover what went wrong in those cases, identify patterns of causes of error
among the cases, and make specific repairs to the investigation and trial
process. In making those repairs, we can prevent erroneous convictions
(not only correct them after the harm has been done), and we can prevent
errors in many kinds of cases (not only those in which the perpetrator’s
DNA has been left at the crime scene). However, the opportunity to take
advantage of the unique view from this window is time-limited. The win-
dow will soon close, and the view it affords will fade. Some of the erro-

       Professor Saks is a member of the faculty at the Arizona State University
College of Law. The other authors are students at the Arizona State University
College of Law and members of the seminar drafting the Model Act. Other me m-
bers of the seminar are S. Michael Levin and Robert Pastor.
      1.   Much of the DNA exoneration work has been done by Barry Scheck and
Peter Neufeld and the numerous “Innocence Projects” (some of them in prosecu-
tors’ offices) that they have inspired. Many of these cases have been described in
      2.   Barry Scheck, Peter Neufeld, and Jim Dwyer are by no means the first to
discuss the problem of wrongful convictions, but DNA typing is the first method
to expose those errors with virtual certainty. Whether the errors brought to light
by lawyers and researchers of the past century were truly errors has always been
debatable. After DNA exonerations, the systematic flaws of the criminal justice
system have risen to the plane of the indisputable.
670                    NEW ENGLAND LAW REVIEW                           [Vol. 35:3

neous convictions that occurred before the advent of DNA typing can now
be re-evaluated with DNA evidence. This has made some of the mistakes
of the past visible. Nonetheless, this unique situation has already started
to disappear. In cases where DNA typing can be performed it will rou-
tinely be performed, and the post-conviction DNA exoneration cases that
today are almost commonplace will disappear. That will be a good thing,
as far as the subset of cases involving biological markers is concerned.
However, the opportunity to see basic flaws in the criminal justice process
will disappear, and the flaws themselves will remain. With the exception
of those excluded by DNA typing, the resulting erroneous convictions,
wrongful incarceration, and the occasional execution of innocent persons
will necessarily continue unabated.
   The most important thing that can be done with the rare and time-
limited view afforded by DNA exonerations is to identify the systemic
flaws in the criminal justice system that produce errors and work to cure
those flaws. By taking advantage now of the fact that defects in the inves-
tigation and trial process have been made temporarily visible, we can
make repairs that will broadly and permanently improve the workings of
the system.
                      II.   SEMINAR GOALS AND PROCESS

   The work described in this article is being performed by a group of Ari-
zona State University law students in a seminar course. Their ultimate
product will be a Model Act embodying a comprehensive set of criminal
justice system reforms. The goal of these reforms is to reduce the proba-
bility of an erroneous conviction, without reducing the probability of a
correct conviction. That is, each reform is calculated to prevent innocent
people from being convicted while preserving the ability of the system to
correctly identify and convict guilty persons.
   The seminar has proceeded through the following steps. During the fall
semester, members of the seminar: (a) researched existing studies and
existing and proposed law related to the criminal justice system’s problem
areas; (b) met to discuss the findings of their research; and (c) debated
policy preferences concerning reforms. These meetings sometimes in-
cluded visits from persons with special knowledge of the topics under
discussion.3 During the spring semester, the seminar: (d) will transform
its selected policies into a draft Model Act, complete with commentary;
(e) circulate the draft Model Act to interested parties around the nation,
and invite their written comments; (f) hold a one-day hearing to which

      3.  Susan Narveson, Director of the Phoenix Police Department’s crime la-
boratory and president-elect of the American Society of Crime Laboratory Direc-
tors and Scott Bales, former Assistant United States Attorney and currently Solic i-
tor General of Arizona.
2001]                     TOWARD A MODEL ACT                                   671

interested persons could testify to the “commission” about the Model Act;
then (g) revise the draft act, in light of the comments received, into final
form; and (h) publish the final version of the Model Act. The Model Act
will then be available to states that wish to adopt all or some of its provi-

   The DNA exoneration cases highlight the leading causes of erroneous
convictions. Through examination of the evidence in cases that ultimately
resulted in DNA exonerations, it is possible to discover what evidence or
other conduct in the original trial was erroneous or otherwise flawed. The
following Table is updated from the data presented in Actual Innocence:
Five Days to Execution and Other Dispatches from the Wrongly Convict-
ed4 and is based on a set of DNA exclusion cases. 5 Some cases involved
two or more erroneous sources. The data suggest that the leading causes
of erroneous convictions are forensic science errors and eyewitness identi-
fication errors, followed by police and prosecutorial misconduct, and fi-
nally a variety of other causes. Accordingly, the aim of the Model Act is
to reduce the likelihood that these shortcomings will vitiate the investiga-
tion, prosecution, and trial of future cases.


  Erroneous Forensic Science                                          53
  Fraudulent, Tainted Evidence                                        25
  Mistaken Eyewitness Identification                                  60
  Police Misconduct                                                   26
  Prosecutorial Misconduct                                            32
  Bad Lawyering                                                       23
  False Confessions                                                   15
  Informants/Snitches                                                 14
  False Witness Testimony                                             14

     4.   See SCHECK ET AL., supra note 1.
     5.   See id. at 263. (The table is entitled “Factors Leading to Wrongful Con-
victions in 62 U.S. Cases.”). See id. The statistics in the table are accurate since
the table was corrected by omitting one line of data which contains some cases
already counted in other lines of the table. See Interview with Peter Neufeld, Co-
Director, The Innocence Project, Cardozo School of Law, in Boston, Mass. (Nov.
14, 2000) (on file with the author).
672                   NEW ENGLAND LAW REVIEW                          [Vol. 35:3


   The following sub-sections summarize the policy preferences adopted
by the seminar members at the midway point in their deliberations. Some
of their details may change by the end of the process of drafting, but they
provide a reliable summary of the major thinking of the seminar about
how to fix what is flawed. The subsections that follow are organized in
the approximate chronological sequence of crime investigation and litiga-
A. Eyewitness Identification Procedures: Interviewing of Witnesses

   Police officers receive little training in how to elicit accurate infor-
mation from witnesses, and are rarely taught the most modern and empiri-
cally tested methods of interviewing.6 Accordingly, the Model Act will
require that police departments provide initial and ongoing training of all
personnel in proper and effective methods of interviewing. This training
would be tailored to an employee’s role in relation to witnesses and to the
circumstances under which the officer encounters witnesses. The training
would be provided in a manner that ensures that the employee has ac-
quired the appropriate skills to deal with such encounters. The Depart-
ment of Justice Guidelines already prescribe that, in interviewing witness-
es, the officer engage in no prompting, ask only open-ended questions,
and that the witness refrain from guessing.
   All interviews related to felony investigations, whether in the field or at
the police station, will be audio or video recorded. The specific method of
recording would depend upon what type of technology is available and
feasible for the purpose of the interview. The recordings would be pre-
served and possibly used later by investigators, prosecution and defense
attorneys and in certain circumstances by judges and jurors as well, to
assist in determining the course of events and the individuals involved in
them. Whether a witness’s recollections are accurate or not is important
to the quality of the investigation that is guided by those statements. To a
greater or lesser extent, the taped statements themselves will indicate the
internal consistency, clarity, and perhaps the validity of a witness’s state-
ments. It would also be helpful to ask witnesses for a statement of certain-
ty about key aspects of their statement, such as their description of the
perpetrator. Such an inquiry would ensure that investigators relying on

     6.   See Gary Wells et al., From the Lab to the Police Station: A Successful
Application of Eyewitness Research, 55 AM. PSYCHOL. 581, 583 (2000) (noting
such common errors as asking closed-ended questions, interrupting witnesses in
mid-narrative, and asking questions in a rigid, predetermined order).
2001]                     TOWARD A MODEL ACT                                 673

the statements would be less likely to focus on weak leads or incorrect
B. Eyewitness Identification Procedures: Lineups and Photospreads

   Procedures for maximizing accurate identifications and minimizing er-
roneous identifications have been extensively empirically tested by cogni-
tive and social psychologists who have studied the eyewitness identifica-
tion process.7 Indeed, these have been more thoroughly and more scientif-
ically studied than any other aspect of the criminal justice process, includ-
ing much of forensic science.8 The role of eyewitness error in DNA exon-
erations prompted the U.S. Department of Justice (DOJ) to create a work-
ing group to develop guidelines based on the findings of eyewitness re-
search in order to reduce the rate of wrongful convictions attributable to
eyewitness errors. Most, but not all, of the major research conclusions
concerning how to construct the most accurate eyewitness identification
procedures have already been incorporated into the Guidelines recently
promulgated by the DOJ.9 The Model Act will embody not only the pro-
visions adopted by the DOJ Guidelines, but all of the procedures found to
be effective.
   In accord with the best available research, photospreads will have a
functional size that includes at least five foils, in addition to the suspect,
and live lineups will have at least four. Each foil will resemble the de-
scription of the perpetrator in all significant respects. Each lineup or
photospread will contain only a single suspect. Lineups or photospreads
will be sequential. That is, instead of presenting all lineup members at
once, they are presented one at a time, and each candidate is then judged
to be or not to be the perpetrator. All of the candidates that have been
selected for the lineup or photospread are shown to the witness, even if the
witness chooses one early in the sequence. 10 The information given to
eyewitnesses as they approach the task has important effects on the accu-
racy of their decisions. As a result, they need to be properly prepared for
the task. Lineups and photospreads will be preceded by giving witnesses

     7.    See, e.g., Gary L. Wells, What Do We Know About Eyewitness Identifi-
cation?, 48 AM. PSYCHOLOGIST 553 (1993).
THE LAW AND SCIENCE OF E XPERT TESTIMONY (1st ed. 1997 & Supp. 2000). A
comparison of the chapter on eyewitness identification with those on the forensic
identification sciences offers a sobering lesson about the research foundations on
which these fields and their experts stand.
     10. The procedures contained in this section are also contained in the De-
partment of Justice Guidelines. See id. at 29-31.
674                   NEW ENGLAND LAW REVIEW                            [Vol. 35:3

instructions which explain that previous advice or instruction should be
disregarded, that the perpetrator may or may not be in the lineup, that ex-
cluding the innocent is as important as including the guilty, and that if the
perpetrator is not in the lineup the investigation will continue in an effort
to find the actual perpetrator.11
   Furthermore, information given to eyewitnesses after they make their
selections from lineups and photospreads has important effects on their
beliefs about and later testimony regarding the identification they have
made. Regardless of whom the witness chooses, a statement of certainty
will be taken immediately following the choice and without any feedback
being given to the witness. The statement of certainty is to be given in the
witness’s own words, and will be audio or video recorded, or written by
and signed by the witness. Thus, the witness will receive no information
about suspects (or the responses or reports of other witnesses) before any
identification procedure, and minimal feedback afterwards. 12 Although
there will be no prohibition on informing witnesses, especially victims,
about the progress of an investigation, the commentary to the Model Act
will advise that good practice dictates that prospective trial witnesses be
contaminated by such information as little as possible.
   The law enforcement officer conducting the lineup or photospread will
be blind as to who the suspect is or, in the alternative, the identification
procedure shall be videotaped. Blind administration ensures that the of-
ficer does not inadvertently give cues to the witness as to which member
of the lineup is the suspect, and in turn that the selection of a suspect is
entirely the choice of the witness. If properly conducted blind, there is no
need for videotaping because cues cannot be given to the witness. If not
conducted blind, the procedure needs to be videotaped so that there is a
chance to evaluate whether improper cues were given.
   Show-ups will not be specifically regulated, but the commentary will
summarize the problems of show-ups, and suggest that where multiple
witnesses are available, they should not all be contaminated by being
asked to participate in a show-up. At trial, witnesses who are to be asked
to identify or to exclude the defendant as the perpetrator will be seques-
tered from each other.

C. Interrogation of Suspects

   Presently, much of the training regarding how to conduct an interroga-
tion is aimed at eliciting confessions from suspects, and some of that pro-

     11. The procedures contained       in this section are essentially the same as
those contained in the Department of   Justice Guidelines. See id. at 31-33.
     12. The procedures contained       in this section are essentially the same as
those contained in the Department of   Justice Guidelines. See id. at 33-37.
2001]                     TOWARD A MODEL ACT                                   675

cess involves chicanery of one sort or another. 13 The Model Act will not
prohibit any of these interrogation procedures, which have become stand-
ard for most law enforcement agencies. However, it will require videotap-
ing of all interviews or interrogations in their entirety of potential or estab-
lished suspects. The recordings will be automatically time-and-date
stamped. Furthermore, the video recording may prevent the most coercive
methods from even being used.14 Equally important, because anything
done during the interrogation will be accessible to lawyers and judges, the
videotape will ensure that the voluntariness and validity of the interroga-
tion and any resulting confession can be assessed. The admissibility of
any confession would be subject to a test of its reliability or validity. Up-
on motion contesting the admissibility of a confession, or upon the court’s
own motion, the burden falls on the proponent of admission to prove that
the confession is reliable. Commentary will explain that this provision is
in addition to the existing constitutional requirement of voluntariness. In
making the decision concerning admissibility of a confession, the court
will have the duty to carefully consider whether the confession is internal-
ly consistent, whether the questioners fed information to the suspect either
by using leading questions or otherwise, and whether the statements are
corroborated by independent evidence, taking into account the totality of
the circumstances.
   Given the reliability test of admissibility and the importance of the vid-
eotape in evaluating that reliability, the absence, for any reason, of a vide-
otape creates extreme difficulties for the judge called upon to evaluate
admissibility. Consequently, for interrogations that take place in a police
station, the absence of a substantially complete videotape will render that
confession inadmissible.15 Confessions made “on the street” in the after-
math of a crime and which have been audio taped according to the guide-
lines discussed above (which require automatic taping of all felony inves-
tigations), will be admissible despite the lack of a complete video record-
ing. Nonetheless, when technology permits, and recording becomes suffi-
ciently easy and inexpensive, the “on the street” rule can be amended to
require the same completeness as the “in the police station” rules.

CONFESSIONS (3d ed. 1986) (Chapter six entitled “Tactics and Techniques for the
Interrogation of Suspects Whose Guilt Seems Definite or Reasonably Certain –
The Nine Steps to Effectiveness,” is especially important.); ROBERT F. ROYAL &
      14. These coercive methods include physical abuse, threats of harm, threats
to implicate innocent relatives, or other unlawful threats or promises.
      15. Several state supreme courts have made electronic recording of interro-
gations a precondition for admissibility. See, e.g., Stephan v. State, 711 P.2d 1156
(Alaska 1985); State v. Scales, 518 N.W.2d 587 (Minn. 1994).
676                    NEW ENGLAND LAW REVIEW                             [Vol. 35:3

   Since enforcement of any set of specific rules regarding the humane
treatment of suspects will be difficult or impossible, and because our con-
cern is coercion of innocent suspects, members of the seminar believe that
prevention of the worst coercive treatment will be best accomplished by
the requirement of videotaping the entire interrogation.16 At the same
time, requiring videotaped interrogations will also protect the police, since
a videotape can provide evidence to defend against claims of brutality and
other unlawful conduct.
   Similar to the training requirements for the interviewing of witnesses,
requirements will be established for the training of those who interrogate
suspects. Moreover, given the limited reliable research that exists regard-
ing what are in fact effective and non-coercive techniques for interrogat-
ing suspects, a provision of the statute will mandate that the state support
valid empirical research on these questions. The findings of all such re-
search must be incorporated into subsequent training.

D. Forensic Science

   Table One suggests that forensic science may surpass eyewitness error
as the leading cause of erroneous convictions. A growing body of litera-
ture documents a tendency of crime laboratory personnel not only to im-
properly and unethically view themselves as advocates for one party to
litigation, but to go to such lengths as to fudge and fabricate their “scien-
tific” test results.17 A second, and perhaps even more surprising develop-

      16. After Miranda v. Arizona, 384 U.S. 436 (1966), if Miranda warnings
have been given, the circumstances in which a court will find that a suspect co n-
fessed involuntarily are rare. Cases where claims of involuntariness were denied
include McCall v. Dutton, 863 F.2d 454 (6th Cir. 1988) (wounded suspect interro-
gated with drawn weapons); United States v. Kelley, 953 F.2d 562 (9th Cir. 1992)
(handcuffed suspect confessed while suffering from heroin withdrawal); Sumpter
v. Nix, 863 F.2d 563 (8th Cir. 1988) (low-I.Q. suspect with psychological prob-
lems interrogated for more than seven hours); and Moore v. Dugger, 856 F.2d 129
(11th Cir. 1988) (low I.Q. suspect had not had food or sleep for 25 hours at the
time he confessed).
      17. See, e.g., Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal
Cases: The Need for Independent Crime Laboratories, 4 VA. J. SOC. POL’ Y & L.
439 (1997) (detailing a lengthy set of fraudulent forensic science; noting esp ecial-
ly the extensive fraud committed by Fred Zain, Dr. Ralph Erdmann, and Dr.
POLICE 114 (1984) (finding that of the laboratories studied, on average fewer than
10% of lab reports dissociated a suspect from the crime); Andre A. Moenssens,
Novel Scientific Evidence in Criminal Cases: Some Words of Caution, 84 J. C RIM.
L. & CRIMINOLOGY 1, 17 (1993) (explaining that “[a]ll [forensic science] experts
are tempted, many times during their careers, to report positive results when their
inquiries come up inconclusive, or indeed to report a negative result as p ositive.”).
2001]                     TOWARD A MODEL ACT                                        677

ment, is the growing realization that some forensic sciences have scientific
foundations that are infirm to the point of being nonexistent.18 Remarka-
bly little data has been gathered supporting the claims made in the many
fields of forensic individualization science. This has become apparent as
challenges have been brought, mostly in the federal courts, under Daubert
v. Merrell Dow Pharmaceuticals, Inc.19 and Kumho Tire Company, Ltd. v.
Carmichael,20 and the proponents of some of these fields have been unable
to meet the rule’s new requirement of validity. 21 When traditional forensic


    [MAU Chief James] Corby reviewed approximately 200 cases and found
    many serious flaws in Rudolph’s [former senior explosives residue e x-
    aminer in the FBI laboratory] work. . . . Corby noted that Rudolph had
    failed to follow his own explosives residue protocol, had formed co n-
    clusions and prepared dictation without a basis, had failed to run stand-
    ards or confirmatory tests, had offered opinions to fit the case scenario
    or findings of other units whether or not supported by his own analyses,
    had failed to label charts properly, and, where data [was] present in the
    file, had sometimes made technical errors.

Id. at 41.
      18. See, e.g., United States v. Hines, 55 F. Supp. 2d 62 (D. Mass. 1999)
(handwriting); United States v. Fujii, No. 00 CR17, slip op. at 3-4 (N.D. Ill. 2000)
(handwriting); United States v. Mitchell, Crim No. 96-407-1 (E.D. Pa. 2000) (fin-
gerprints); Williamson v. Reynold, 904 F. Supp. 1529, 1557-58 (E.D. Okla. 1995)
(hair); People v. Linscott, 566 N.E.2d 1355 (Ill. 1991) (hair); Simon Cole , The
10, No. 8, Nov., 2000, at 54. See generally, Michael J. Saks, Merlin and Solomon:
Lessons from the Law’s Formative Encounters with Forensic Identification Sci-
ence, 49 HASTINGS L.J. 1069 (1998); DAVID FAIGMAN ET AL., supra note 8 (dis-
cussing forensic identification science in chapters 15-26). See also NATIONAL
EXAMINATION VALIDATION STUDIES, Mar., 2000. It is important to note that:

    The uniqueness of friction ridge patterns, be they fingerprints,
    palmprints, or bare footprints, has long been accepted by the scientific
    community and by the courts. The reason for this widespread a c-
    ceptance perhaps lies in the fact that fingerprints were first introduced
    at a time in our history when society was less demanding of proof and
    more trusting of authority. As a result of widespread recent challenges
    that friction ridge identification, as well as other forms of personal ide n-
    tification evidence, lack a proven scientific foundation, efforts have
    been ongoing to supply today’s demands of validation and verification
    that is . . . required by . . . Daubert v. Merrell Dow Pharmaceuticals.

Andre Moenssens, Validating Friction Ridge Examination Techniques Proposals
Solicited (visited March 23, 2001) <
     19. 509 U.S. 579 (1993).
     20. 526 U.S. 137 (1999).
     21. Or “evidentiary reliability,” as the Daubert Court preferred to call it.
678                   NEW ENGLAND LAW REVIEW                         [Vol. 35:3

identification sciences and their inferential methodologies are compared to
DNA typing, the shortcomings of the traditional forensic individualization
“sciences” become apparent.22 The goal of crime laboratory reform is to
ensure that forensic science contributes to determining the truth in a given
matter using sound scientific methods. To achieve that goal, the organiza-
tional structure of forensic laboratories needs to be redesigned and their
culture needs to be reoriented.
   Under the Model Act, laboratories will be uncoupled from police de-
partments and replaced with independent laboratories. Management and
control of the labs will be placed in the hands of real scientists with real
scientific training, whose first loyalty is to performing reliable scientific
work. These independent labs will be funded by the state, and their budg-
ets will be separate from those of police and prosecution agencies. Fur-
thermore, these laboratories will be managed by scientists rather than po-
lice officials and administered as independent agencies under an authority
(the Forensic Laboratory Commission) separate from and independent of
police or prosecution agencies. Also, records and staff will be equally
available and responsive to both prosecution and defense lawyers, con-
sistent with the laboratories’ independent status.23
   A Forensic Laboratory Commission will be created that has general su-
pervisory, policy-making, and rule-making authority for the state’s foren-
sic laboratory system. The Commission will be composed of a majority of
scientists who are not forensic scientists, but come primarily from indus-
try, academia, medical settings, and other government laboratories. The
other members will represent a balance among prosecution, defense, and
the judiciary. Its powers will include setting standards for hiring, work-
load, resources, and quality control methods including rules for certifica-
tion of examiners, accreditation of labs, blind proficiency testing, external
scientific audits of the lab’s work, etc. The results of quality control test-
ing will be on file with the Commission and available as public records.
   The Forensic Laboratory Commission will also ensure that the state’s
labs develop and follow protocols that have been properly validated. Spe-
cialties that cannot provide adequately validated protocols may be reduced
to an investigatory role, which can be used to produce investigative leads,
but not be offered as proof at trial. 24 The Commission will represent the
state’s forensic laboratories to the legislature for all purposes, including

Daubert, 509 U.S. at 590-91.
     22. Michael J. Saks & Jonathan J. Koehler, What DNA “Fingerprinting”
Can Teach the Law About the Rest of Forensic Science, 13 CARDOZO L. REV. 361,
361 (1991).
     23. This is intended to solve existing problems of discovery and defense
counsel’s need for forensic science consultation and other assistance.
     24. For example, the FBI has already reduced “voiceprint” identification to
such a role. See FAIGMAN, supra note 8, Vol. II, at 194.
2001]                         TOWARD A MODEL ACT                                   679

budgetary matters. Furthermore, misbehavior by laboratory personnel
such as fudging, falsification, fabrication, perjury, etc. will be subject to
administrative penalties within a framework established by the Commis-
sion. Where necessary and appropriate, criminal charges may be brought
against such employees for obstruction of justice, perjury, and the like.
Finally, the Model Act might adopt the provisions of the new Federal
Rules of Evidence 702, which essentially codifies Daubert, and governs
the admission of expert evidence at trial.25

E. Indigent Legal Representation

   In many states, legal representation of the indigent is characterized by
inadequacy: too few lawyers for the caseload, insufficient skill, and inade-
quate resources. A recent study of judicial review of death penalty cases
found that thirty-seven percent of the reversals of convictions were due to
inadequate assistance of counsel.26
   Under the Model Act to the extent possible, indigent legal representa-
tion will be accomplished through the establishment of a centralized,
statewide, public defender system. The public defender organization will
be empowered to organize itself into subunits for effective and efficient
functioning. This may be done by geographic units, by trial and appellate
units, or specialized subject matter areas. In circumstances where a prob-
lem of geographic remoteness, seasonal fluctuations in caseloads, or con-
flicts of interest exist, the statewide public defender is authorized to hire
temporary assistant public defenders or to contract with private attorneys,
who must meet the same training and experience standards as permanent
assistant public defenders.27 Furthermore, the office of the public defend-

      25.    The recently revised FED. R. EVID. 702, states:

            If scientific, technical, or other specialized knowledge will assist
            the trier of fact to understand the evidence or to determine a fact
            in issue, a witness qualified as an expert by knowledge, skill, ex-
            perience, training, or education, may testify thereto in the form
            of an opinion or otherwise, if (1) the testimony is sufficiently
            based upon reliable facts or data, (2) the testimony is the product
            of reliable principles and methods, and (3) the witness has ap-
            plied the principles and methods reliably to the facts of the case.

      26. See James S. Liebman et al., Capital Attrition: Error Rates in Capital
Cases, 1973-1995, 78 TEX. L. REV. 1839, 1850 (2000).
      27. To deal with the special problem of conflicts of interest, two quite dif-
ferent approaches might be considered. Kentucky law maintains th at attorneys
from separate jurisdictional offices of the same statewide public defender agency
are sufficient to avoid the conflict. See People v. Wilkins, 268 N.E.2d 756 (1971);
RULES OF PROFESSIONAL CONDUCT Rule 1.10, paragraph 3 of Commentary; KBA
680                   NEW ENGLAND LAW REVIEW                            [Vol. 35:3

er must adhere to certain minimum standards, including caseload limita-
tions.28 It will have resources commensurate with those of the govern-
ment, such as support staff, investigators, and experts. 29
   A permanent commission at the state level will oversee the state public
defender’s office. This commission will be within the judicial branch, and
will determine what type of system should exist in each county. 30 The
commission will develop the necessary standards for providing effective
representation for all systems within the state, including required qualifi-
cations and performance standards and checks. Its responsibilities would
include representing the public defender’s office to the legislature on all
matters, including budgetary issues. Among its powers will be the author-
ity to release funds that have been encumbered to support public defender

F. Prosecutorial Misconduct

   The problem of prosecutorial misconduct in erroneous convictions con-
sists largely of either the suppression of exculpatory evidence or the
presentation of false evidence – either of which might be done inadvert-
ently or deliberately. Since most cases of prosecutorial misconduct are
not further investigated, instead of imposing mandatory sanctions to pun-
ish offenders after the misconduct has occurred, the Model Act will man-
date an “open file” discovery policy. The general rule would be that all
evidence, and other relevant information, which is in the possession or
control of the government is to be shared with the defense. While several
states (among them Florida and New Hampshire 31) already impose broad
criminal discovery obligations on prosecutors, these rules often make dis-

LAWYERS, § 203 (d)(iv)). Colorado, by contrast, has established an alternate d e-
fense counsel, which provides legal representation in cases where the state public
defender has a conflict of interest. A nine-member commission appointed by the
Supreme Court of Colorado appoints and discharges those who serve as alternative
defense counsel. COLO. REV. STAT. § 21-2-101(1) (2000).
      28. They might choose to follow the caseload maximums recommended by
the ABA: “400 misdemeanors per attorney per year, or 200 juvenile cases per
attorney per year, or 200 mental commitment cases per attorney per year, or 25
appeals per attorney per year.” THE ABA STANDARDS FOR CRIMINAL JUSTICE § 5-
5.3 Commentary (3d ed. 1992).
      29. The necessity for experts depends upon the nature of the crime laborat o-
ries that exist in a state. Where crime laboratories are independent and equally
available to prosecutors and defenders, there will be much less need for additional
expert support services.
      30. See Terry Brooks, Efforts Increase to Improve State Systems, 15 C RIM .
JUST. 59, 59 (2000).
      31. See N.H. R. S UPER . C T. 98; FLA. R. C RIM . P. 3.220.
2001]                      TOWARD A MODEL ACT                            681

tinctions between evidence that is to be disclosed and that which may be
withheld. The Model Act will eliminate these distinctions, making it un-
necessary to define what evidence the government is required to disclose.
Generally, all evidence must be disclosed. However, the Model Act’s
open file policy will exclude attorney work product, which remains non-
discoverable under the usual rules of criminal procedure.32
   Notwithstanding the general open file policy, any party that believes
special circumstances exist that should preclude mandatory disclosure
may seek a protective order from the court. These circumstances may
include, but are not limited to, an unacceptable risk of harm to a witness or
an ongoing investigation with multiple defendants when not all arrests
have been made. Whenever the court grants such a protective order, it
will also issue an order ensuring that the defense has appropriate oppor-
tunity to gather any exculpatory evidence that may exist. The court and
parties must find a satisfactory way to meet the legitimate goals of the
protective order while not defeating the purposes of mandatory disclosure.
When violations of the open file discovery policy occur, substantial penal-
ties will be available against the offending persons, regardless of whether
the evidence withheld had or would have had any effect on the outcome of
the underlying case. However, these penalties will not include overturn-
ing the verdict and ordering a new trial unless the prosecutorial miscon-
duct is determined to have caused actual prejudice.

G. Post-Conviction Procedures

   The emphasis on finality in existing law has meant that even the most
convincing evidence of innocence simply could not be considered by the
courts of many jurisdictions post-conviction. While there is good reason
not to permit endless appeals on hair-splitting legal issues, the law needs
to make room for inventions that can radically alter the factual conclu-
sions of a case. Accordingly, the Model Act will contain a provision for
the filing of a petition alleging “actual innocence,” to be filed with the
state’s intermediate court of appeals. If merited, the court will have the
power to set aside the conviction and order a new trial. These petitions
may be filed without limit as to time and without limit as to the number of
such petitions. They must specify new evidence or new analyses of old
evidence, which would substantially support a claim of actual innocence.
The action permitted under this provision is limited to factual evidence
bearing on claims of actual innocence; there is no requirement to show
any constitutional violation. Moreover, the filing of these petitions would
not impair any other substantive or procedural rights that may be availa-

    32.   See, e.g., FED. R. CRIM. P. 16(a)(2).
682                    NEW ENGLAND LAW REVIEW                           [Vol. 35:3

   Since this rule may, at least initially, create a surplus of filings, courts
will be authorized to engage in a two-stage review process. This process
will allow a judge to review a petition and decide whether it ought to be
dismissed summarily or whether further proceedings should be scheduled
to more thoroughly consider the facts alleged in the petition. The goal is
to achieve a balance between the value of finality and the societal and
individual interest in freeing an innocent person from wrongful punish-
ment. In addition, the Model Act will contain rules requiring the preserva-
tion of evidence for a period of time that would allow DNA – or other
innovations that might be developed long after conviction – to be em-

H. Post-Release Rights

   Under the Model Act, when a judicial order vacating a conviction on
grounds of actual innocence is issued, a claim for compensation may be
initiated by the wrongly convicted person or by the court on its own mo-
tion, at any time within two years following the order vacating the convic-
tion.33 These damages will be supplemental to tort and civil rights actions
that may be available. Compensation is to be granted if the claimant es-
tablishes innocence by clear and convincing evidence. This high standard
helps to ensure that compensation is awarded only to the actually inno-
cent, and not to persons released only on technical legal grounds. The
elements of damages shall include general damages (pain, suffering, loss
of enjoyment of life, etc.) taking into account the length and conditions of
the unjust confinement; lost earnings and vocational services; costs of
rehabilitation or counseling needed to assist reintegration into society and
taking into account family circumstances; and attorneys’ fees. No puni-
tive (exemplary) damages will be available under the Model Act. 34 There
is no cap on these damages, but the court may order structured payments
rather than one lump sum payment. These damages shall be available
even if the state was without fault.35 Furthermore, the court may issue an
order completely expunging the wrongly convicted person’s criminal jus-
tice system records that came into being as a result of the wrongful con-

      33. See generally Adele Bernhard, When Justice Fails: Indemnification for
Unjust Conviction, 6 U. CHI. L. SCH. ROUNDTABLE 73 (1999). Many of the ideas
in this section are drawn from the work of Adele Bernhard.
      34. Exemplary damages would be available under 42 U.S.C.A. § 1983
      35. For example, if the erroneous conviction were entirely the fault of a
perjurious witness. In such an instance, the state will have no right of subrogation
against the perjurious witness, but can prosecute that witness criminally.
2001]                  TOWARD A MODEL ACT                             683

I. Sanctions for Violations

  The Model Act will contain a schedule of penalties for violation of its
provisions. These will range from letters of reprimand to fines and im-
prisonment. These penalties are intended to promote compliance with the
Act’s provisions. However, the only way to achieve the benefits sought
by the Model Act will be for its provisions to be taken seriously and that
will only occur if they have teeth.

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