Much of what has been written about the role of friction ridge (“fingerprint”) evidence and miscarriages of justice has focused, understandably, on erroneous identifications, cases in which a crime scene print is erroneously attributed to a suspect (or, more rarely, a victim). This Article undertakes a systematic and comprehensive examination of “other” types of error in friction ridge analysis and how they can, and have, contributed to miscarriages of justice. These errors include “missed identifications” and well as “missed exclusions.” The Article begins by systematically laying out a new typology of fingerprint errors, resulting in more than 15 different error types. It then discusses each of the major error types, listing publicly exposed errors of that type if there are any, for a total of more than 40 cases. We illustrate how each error type can deprive a defendant of evidence probative of innocence. The Article then goes on to discuss the scientific literature on friction ridge analysis and the ways in which that literature suggests that these “other” errors may be common, and perhaps even expected, given standard procedures in friction ridge analysis. The final section of the Article discusses the issue of post-conviction database searching of fingerprint (and other forensic) databases, akin to post-conviction searching of DNA databases. We find that convicts’ have a right to post-conviction database searching for forensic evidence other than DNA in only a few states. And yet, post-conviction database searches have exonerated convicts in those states. We argue that there is no persuasive reason that the right to post-conviction DNA testing should not be extended to post-conviction fingerprint (and other forensic) databases searching.

“Conviction Integrity Unit” has become a brand name that has good public relations value for an elected official. But what does it really mean? Is it just a fashion accessory, a flashy but empty appellation intended to convey the idea that the office is extremely serious about correcting wrongful convictions and holding its own members accountable for errors or acts of misconduct, but really is not? Is conviction integrity nothing more than a passing fad, a nebulous slogan without real meaning that is good for propaganda purposes, but will not bring about any serious change in the way business is done in American criminal justice system?

This is a short review of Deborah Tuerkheimer's book, Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice (Oxford University Press 2014).

Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted, by Barry Scheck, Peter Neufeld and Jim Dwyer. Doubleday, 289 pp., $24.95. Barry Scheck and Peter Neufeld have played a key role in developing DNA testing to free wrongly convicted prisoners. They are the founders of the “Innocence Project,” a student clinic at Cardozo Law School at Yeshiva University in New York City, which has worked towards the exposure and overturning of wrongful convictions, mainly through the use of DNA testing. Actual Innocence, co-authored with New York Daily News columnist Jim Dwyer, takes this work forward in an important way. The book presents a very readable and dramatic narrative of 10 of the 37 prisoners, Scheck, Neufeld and the “Innocence Project” have freed from prison and death row across the country. Actual Innocence also poses the question of how these wrongful convictions took place and what this says about the legal system that has convicted, jailed and sentenced to death so many innocent people. Each chapter and story in Actual Innocence describes a horrible human tragedy, oftentimes beginning even before the person is wrongly accused and convicted. As each individual gets caught up in the machinery of the criminal justice system, a human life is changed and forever disrupted. The accused is branded as the perpetrator of a heinous crime; he is convicted, ostracized from society, family and friends, and sentenced to a life of punishment in which the simple truth of innocence is brutally transformed into its opposite. The first wrongful conviction discussed is that of Marion Coakley, a black man born in Beaufort, South Carolina who moved to New York City. He has an IQ in the 70s. He was a day laborer who worked all his life, and he was at a prayer meeting in his neighborhood on the evening of October 13, 1983 when the rape he was charged with took place. Marion Coakley's case was also significant in bringing the two former Legal Aid lawyers, Scheck and Neufeld, back together, paving the way for the founding of the “Innocence Project”, and highlighting an important problem in developing DNA testing as a tool of forensic science. Scheck and Peter Neufeld, who had left the practice of law to write and produce a play, were called in on the Coakley case in 1986 because the New York Legal Aid defense attorney who had defended Coakley did not have adequate time to prepare the case, and lost at trial. The Legal Aid defenders called on Scheck and Neufeld, who had worked with Legal Aid in the 1970s, to appeal Coakley's case. At the time of this case, DNA testing, or the “DNA fingerprint test” as it was known in the 1980s, was just becoming accepted as valid physical evidence in criminal trials. There were problems with all the forms of physical evidence used in criminal proceedings. Fingerprints were unique, but not always available at crime scenes. Hair was introduced as evidence in a courtroom for the first time in Germany in 1861, but proved very unreliable. Blood typing was generally reliable, but not unique, as it only divides the population into type A, B, AB, O, negative and positive, which therefore includes hundreds of millions in each type. Dr. Alec Jeffries was the first to start using what was described as the “DNA fingerprint test” in England in the 1980s. The problem was that it took a great deal of biological material to get results with these tests, called RFLP tests (Restriction Fragment Length Polymorphism). This was the problem in Marion Coakley's case. When Scheck and Neufeld had the biological evidence from the rape tested, they consumed all the evidence in the DNA test and did not get any results. In 1983, however, Kary Mullins, a California biotech lab technician, developed the polymerase chain reaction to replicate and expand any DNA sample, no matter how small. Mullins won the 1993 Nobel Prize in chemistry for this discovery, and forensic DNA testing suddenly became a very powerful investigative tool. Although the problems with “DNA fingerprint testing” closed off that avenue of proof, the newly reunited team of Scheck and Neufeld were able to free Marion Coakley with the assistance of students from the Cardozo criminal law clinic based on evidence of prosecutorial misconduct and markers of the rapist's blood type, which showed up in the semen from the rape and did not match Marion Coakley's blood type. Each chapter in Actual Innocence depicts a different element of the criminal justice system recognized as responsible for wrongful convictions. The first is mistaken identity by an eyewitness or the victim. The authors report that 84 percent of the wrongful convictions exonerated by DNA testing and investigated by the Innocence Project, resulted, completely or in part, from mistaken eyewitness evidence. The authors report on the famous 1902 experiment by Professor Von List in Berlin, in which a classroom disruption was witnessed by all the students in a large seminar. When the students were tested about their memories of the staged incident they had just witnessed their recollections were notoriously inaccurate. The authors cite a comment in the 1932 book, Convicting the Innocent, on the longstanding problem of mistaken identifications by eyewitnesses: “Perhaps the major source of these tragic errors is an identification of the accused by the victim of a crime of violence. This mistake was practically alone responsible for twenty-nine of these [sixty-five] convictions.” Then the authors report how the Supreme Court has systematically dismantled the protections against bias and prosecutorial abuse in the eyewitness identification process, that had

The best way to effectively prevent Brady violations and other forms of prosecutorial misconduct that cause wrongful convictions is nternal regulation of the District Attorney’s office. Civil liability, state or bar disciplinary action, the stigma of appellate reversal, and the threat of criminal prosecution have failed to provide effective deterrence against Brady violations as well as other forms of misconduct. However, the lack of alternatives is not the reason why internal regulation is the most promising way to prevent Brady violations, but rather because prosecutors themselves are in the best position to implement procedures that achieve this goal. Prosecutorial offices, and the criminal justice system as a whole, can learn important lessons from recent reforms adopted by the medical profession to improve safety. Specifically, several organizational principles and practical remedies developed by the groundbreaking National Academies of Science study on improving hospital safety, To Err Is Human, can be readily transferred to the prosecutor’s office. The Pareto principle, a staple of quality assurance theorists, holds that eighty percent of effects result from twenty percent of causes and, therefore, quality management resources should be focused on correcting this twenty percent of causes. Recognizing there is little empirical data on the causes of Brady violations, and in accordance with Pareto’s principle, this Article conducts a “thought experiment” that postulates and then analyzes the top three causes of Brady violations: (1) The Brady material was not in the prosecutor’s file because the police did not provide it in written form to the prosecutor working on the case; (2) The Brady material was in the prosecution’s file, or known to the prosecutor from an oral communication, but the prosecution did not identify it as Brady and, therefore, did not turn it over to the defense; and (3) The prosecutor did not turn over to the defense information that he or she knew or strongly suspected could be Brady material out of fear. What emerges from this analysis of the top three causes are concrete suggestions for setting up a Professional Integrity Program within a prosecutor’s office that can identify, correct, and prevent Brady violations. The Professional Integrity Program features the use of pre-trial and post-indictment checklists and disclosure conferences, the non-punitive tracking of errors and “near misses,” the development of clear office-wide legal definitions of Brady material, the administration of audits and root cause analysis in reversal and harmless error cases, and the creation of simulation exercises for training staff that builds on the lessons learned from “near misses” and audits. A Conviction Integrity Program to investigate plausible postconviction claims of innocence is also proposed that draws upon the ethical principles enunciated in ABA Model Rule of Professional Conduct 3.8. It also draws upon “best practices” for co-operative, non-adversarial post-conviction innocence investigations employed by projects within the Innocence Network with the Dallas District Attorney and other district attorney offices. Finally, a model and organizational chart for the implementation of a Professional and Conviction Integrity Program are presented and discussed.

The US Congress should create an office to study, standardize and certify those who apply science to crime as well as the techniques they use, urge Peter Neufeld and Barry Scheck.

6 When the National Institute of Justice released its training manual on eyewitness evidence in 1999, the agency concluded that there was "not a consensus" to recommend sequential over simultaneous line ups, Eyewitness Evidence: A Guide for Law Enforcement (NIJ, October, 1999), available at http://www.ojp.usdoj.gov/nij/pubs-sum /17824O.htm. Since that time the debate has continued. Although most research on eyewitness identification and most of the reports on wrongful convictions recommend sequential procedures, there is a "dissenting view among some well-respected social scientists that the research has not proceeded far enough to determine under what conditions, if any, a sequential line up is to be preferred to a simultaneous line up," American Bar Association Criminal Justice Section, Ad Hoc Innocence Committee, Achieving Justice: Freeing the Innocent, Convicting the Guilty (Washington, DC: American Bar Association, 2006), 35.

MAJOR LEARNING OBJECTIVES OF THIS COURSE: At the completion of the course, students will be able to do the following: Articulate and explain the causes of wrongful convictions. Identify facts and legal issues indicating the possibility of a wrongful conviction. Develop skills and approaches intended to minimize the likelihood of future wrongful convictions Learn the causes and identify the indicators of false confessions by innocent people. Discuss how ethical violations in the performance of the prosecution and the defense function can lead to wrongful convictions.

In 1932, Professor Edwin M. Borchard wrote in his classic study, Convicting the Innocent, "In an age when social justice has made such marked advances.., it seems strange that so little attention has been given to one of the most flagrant of all publicly imposed wrongs-the plight of the innocent victim of unjust conviction in criminal cases."' In the seven decades since Professor Borchard's observation, the general cause of social justice has surely been advanced as the New Deal of the 1930s and the Great Society programs of the 1960s brought opportunity to previously neglected classes of Americans. Yet over the same period-at least until quite recently-the conviction of innocent individuals has remained a neglected topic among both policymakers and scholars. In the 1990s, the use of advanced DNA testing has freed many wrongfully incarcerated persons.2 As a result, scholars3 and the media4 have

In some abstract, impersonal way, all of us are aware that mistakes are made in our justice system. It is, after all, a human institution, and human beings make mistakes. Even as we read occasional stories about the release of an innocent person, the issues raised by that apparent mistake may remain abstract, without a sense of urgency attached to them. After all, this may have been an isolated error. Or the person may actually have been guilty, but not provably so. If you read this book, the mistakes made in our criminal justice system will no longer be abstract ones. Barry Scheck and Peter Neufeld are lawyers who started their careers in a legal aid office in the Bronx. Although they have long ago left legal aid for other, arguably greater pursuits—Scheck is a law professor and Neufeld is in private practice; they have teamed up to represent big-name clients like O.J. Simpson and to develop national reputations for their understanding of DNA evidence—they retain the zeal of idealistic young lawyers who have just started legal aid work and, as beginners, been given only a single client to represent. The book tracks the work done by Scheck and Neufeld through the Innocence Project, a clinic they co-founded at the Cardozo Law School that uses volunteer law students and attorneys to review cases in which DNA testing might prove a convicted person’s innocence. Their co-author, Jim Dwyer, is a reporter at Newsday who championed—prior to their release—the cases of some of those who had been wrongfully convicted. The majority of the book consists of separate chapters detailing specific cases that illustrate typical ways in which the justice system may go awry and the innocent may be found guilty. The authors present overall data on 62 cases through August 1999 in which convictions were overturned based on DNA evidence. In 52 of 62 cases, there were mistaken eyewitnesses; in one case, there were five eyewitnesses, all of whom were wrong. The authors show how common techniques for police interrogations and lineups can suggestively lead witnesses to identify an innocent person. The also show how other factors—including false confessions, scientific fraud, junk science, poor defense counsel, and unethical prosecutors—have led to conviction of the innocent in specific cases in which DNA evidence has, after-the-fact, conclusively proved the defendant’s innocence. Two aspects of the book give a sense of urgency about reading it. First, it takes you vividly behind the scenes of real-life cases in which innocent men were convicted. We get to share not only the horror of the innocent who is sent to prison; we also get to see, in context, how such a terrible mistake could have occurred. Second, it provides a number of suggestions for improving the system to avoid these results, including a helpful, six-page appendix detailing the authors’ suggested reforms. Perhaps the most intriguing proposal is the establishment of governmental Innocence Commissions at the federal and state levels. The authors appropriately note that government agencies investigate the causes of air crashes for the purpose of figuring out what went wrong so that future accidents can be prevented. Surely the specter of placing innocent people in prison for long terms—or even capital punishment—is worthy of a similar effort. The book is not without flaws. The authors have no doubt good-naturedly poked fun at whichever of them—or the editor—who mistakenly referred to “Brett and Scarlett” as the leading characters from Gone with the Wind. More relevant is the sense that the authors have a consistent pro-defense slant and do not always give fair consideration to opposing views. It is interesting that they suggest that the immunity enjoyed by prosecutors should be ended so that they could be sued for intentional misconduct. They do not, however, suggest any civil remedies against incompetent defense counsel, even as they note that 27 percent of the wrongfully convicted in their study had “subpar or outright incompetent legal help.” When discussing the case of David Shephard, who had spent more than 11 years in prison for a rape he did not commit, the authors note that Shepard was unable to sue the prosecutor, the state, or the victim who had testified that he was the rapist. They ignore any possible claim against the defense counsel, who they have previously told us got so mad at Shephard when he refused to accept the plea bargain she had obtained (under which he would, no doubt, have served many years in prison) that she refused even to prepare him for his testimony in court. There is also a sense that the authors generally accept whatever the wrongfully convicted man has to say about his dealings with attorneys, police and prosecutors as being accurate. Though they carefully attribute statements to the defendant, the stories are certainly told with an air of presumed truth to their statements. Yet there is certainly a chance that some of the police or prosecutorial misconduct was not as bad as reported if some of these recollections by the now-released defendants are exaggerated or wrong. Given the problems dutifully noted with eyewitness recollections, it would perhaps be appropriate to note more clearly that some of these recollections, potentially enhanced by years of wrongful imprisonment, may themselves lack accuracy as well. Despite any limitations the book may have, it powerfully details problems in the system that anyone seriously concerned about justice must, at least, carefully consider. By Actual Innocence: The Justice System Confronts Wrongful Convictions