The Executive Summary is here.

“[T]he most fundamental principle of American jurisprudence” is “that an innocent man not be punished for the crimes of another.”[1] Since 1989, 34 states and District of Columbia have been witness to 273 postconviction DNA exonerations. These exonerations represent cases in which the conviction has been indisputably determined to be wrong by continuing advances in the use of DNA science and evidence. They represent tragedy not only for the person whose life is irreparably damaged by incarceration for a crime he did not commit, but also for the victim since each wrongful conviction also represents the failure to convict the true perpetrator. These cases require us to take measures to sustain both the integrity of our convictions and the moral force of our burden of proof. If experience is the name we give our mistakes, these exonerations provide a remarkable opportunity to examine our practices and policies, and correct them to the best of our ability. Pennsylvania is not alone in the matter of tending to conviction integrity. These exonerations challenge long-accepted assumptions in the soundness of certain practices of the criminal justice system both nationwide and in Pennsylvania. They cast a disturbing doubt on the reliability of eyewitness identifications, confessions, and overly aggressive practices within the adversarial legal system.

Senate Resolution No. 381[2] directed the commission “to study the underlying causes of wrongful convictions.” Many scholars, practitioners, law enforcement agencies, and the courts, among others, have examined these cases and advocate for a variety of responses and remedies to the problems revealed by the wrongful convictions. This report attempts to bring the General Assembly’s attention to policies for Pennsylvania that may reduce the likelihood that innocent people will suffer imprisonment for crimes they did not commit while further ensuring that the actual perpetrator of the crime is brought to justice.

The resolution directed “the Joint State Government Commission to establish an advisory committee to study the underlying causes of wrongful convictions so that the advisory committee may develop a consensus on recommendations intended to reduce the possibility that in the future innocent persons will be wrongfully convicted in this Commonwealth.” This resolution directed the advisory committee to:

1)     review cases in which an innocent person was wrongfully convicted and subsequently exonerated;

2)     review any other relevant materials;

3)     identify the most common causes of wrongful convictions;

4)     identify current laws, rules and procedures implicated in each type of causation;

5)     identify potential solutions in the form of legislative, rule or procedural changes or educational opportunities for elimination of each type of causation; and

6)     consider implementation plans, cost implications and the impact of potential solutions on the criminal justice system.

Each subcommittee became aware of laws, rules and procedures from other jurisdictions that address common causes of wrongful convictions.[3] These examples from elsewhere were considered as the subcommittees decided which solutions to recommend for our Commonwealth. The full advisory committee initially convened twice in person and then the subcommittees convened via personal and telephonic conferences. Subcommittees invited individuals with relevant expertise to share their experiences and recommendations. The subcommittees deliberated primarily recommendations that have been and continue to be considered throughout other states. As some of these recommendations receive consideration, they have been adopted in some fashion by more and more jurisdictions.

After all the subcommittees completed their deliberations, their recommendations were shared with the full advisory committee. The full advisory committee was afforded an opportunity to comment on all the proposals regardless of which subcommittee generated the specific proposal. While there was some general consensus on these recommendations, particular interests remain sharply divided on the advisability of implementing these recommendations. Some advisors question that a foundation has been established to recommend any of these proposals and fear that their implementation could create more injustice rather more justice. Conversely, advisors who endorse these recommendations have not been persuaded that a foundation has been established to justify that fear recognizing that good faith, the best intentions and a genuine commitment to justice are not always enough to prevent the injustice of an innocent person being wrongfully convicted. Comments of advisors criticizing the proposals appear in the final appendix.

There was much debate within the advisory committee on the magnitude of the wrongful convictions issue, the scientific basis for the purported causes thereof and the advisability and utility of any proposed remedies. These views reflect the debate both nationally and internationally, and within the scientific and criminal justice communities. Some individuals believe that the 273 wrongful convictions[4] identified by the Innocence Project[5] that have been the result of DNA exonerations are an extremely rare phenomenon. Proponents of the atypical school argue that existent investigative procedures usually work properly and accurately, and that when errors occur, they can already be remedied. They contend that proper and complete cross-examination and discovery can reveal any irregularities with investigative procedures, and that judges and juries are capable of sorting out conflicting evidence. Because there have only been 11 DNA exonerations in Pennsylvania, some do not regard them as a solid foundation for consideration of responsive policies. Of great concern to this group is the possibility that wide-scale “improvements” in investigative procedures that are intended to protect an extremely small set of innocent suspects will result in a failure to convict guilty criminals.

Others view these cases as the “tip of the iceberg.”  Even if the incidence is low, others think that reasonable measures to reduce the likelihood of their occurrence should be considered. They presume that the same or similar errors that led to these DNA exonerations must have occurred in convictions where DNA was not recovered or was not tested or was irrelevant as evidence. They maintain that improvements to investigative procedures can greater protect the innocent without significant loss of correct convictions. They further claim that the existent protections cited by their opponents are insufficient.

[1] Commonwealth v. Conway, 14 A.3d 101, 114 (Pa. Super. Ct. 2011).

[2] Sess of 2006, appendix A, infra p. 229.

[3] Appendices C through I, infra pp. 255-308.

[4] Innocence Project, Know the Cases, http://www.innocenceproject.org/know/ (last visited Aug. 1, 2011).

[5] “[A] national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent further injustice.” Innocence Project, About Us, http://www.innocenceproject.org/Content/What_is_the_Innocence_Project_
How_did_it_get_started.php (last visited Feb. 12, 2011).