By: Alexis DiCarlo ’24
My name is Alexis DiCarlo and I received the 2022 Professor Virginia A. Leary Memorial Fellowship, which allowed me to work at the Innocence Project of Florida for the summer, concentrating on post-conviction work. First and foremost, I would like to sincerely thank Professor Leary and her family for their generous donation; I am thrilled to have been able to do public interest work this summer, which may not have been possible without this fellowship. Since I decided I wanted to attend law school, I knew working in public interest would be my path, and I’ve always had a desire to work in post-conviction and represent indigent incarcerated folks.
The Innocence Project of Florida holds weekly teaching sessions for the interns on topics including contributors to wrongful convictions, DNA testing, biological evidence, and conviction review units. A large part of working in post-convictions is understanding why people are wrongfully incarcerated in the first place. According to data collected by the National Registry of Exonerations, the five largest contributors to wrongful convictions are (1) mistaken witness identification, (2) perjury or false accusation, (3) false confession, (4) false or misleading forensic evidence, and (5) official misconduct. The chart below illustrates the frequency with which each factor contributed to false convictions.
The two factors that I found the most interesting are mistaken witness identification and false confessions. Both seem at first to be unquestionable, but are very often inaccurate or unreliable.
Mistaken witness identification
When eyewitness testimony is a large part of the case against a defendant, false convictions can result if their memory is subject to influence and distortion. Therefore, it is essential to study the ways that memory can be affected. There are two categories of factors that can affect the accuracy of a witness’ testimony: estimator variables and system variables. Both affect the formation of memories, which is called encoding, and the recall of memory, which is called retrieval.
Estimator variables are characteristics of the environment, things outside of the control of the witness or the criminal justice system. They influence the way a witness sees an event and can vastly change the way they remember it. Examples include lighting, distance, how long the exposure to the event was, distractions (e.g. fear), impairment (e.g. intoxication), and race (we are better at encoding facial features of someone of our same race). System variables influence a witness’ retrieval of a memory and ARE within the control of the criminal justice system. Examples include lineups, photo arrays, and interview prompts.
System variables can be designed and controlled by the law enforcement agencies and should be deliberately crafted to achieve the most accurate, non-distorted memory retrieval possible. The best eyewitness identification process will be double blind (both the witness and administrator do not know who the suspect is), be presented with a neutral instruction, be composed of faces similar to another and to the description, be presented to one witness with no co-witness information, and be completed without feedback from the presenter. Even a “good job” or an “are you sure” comment can sway a witness and influence their answer when being presented a lineup. Photo lineups should also end with a confidence rating (“I am 90% sure that is the person who robbed me.”) and the process should be recorded.
It is shocking and unfortunate how many people are imprisoned solely on victim or witness identification. There are obviously so many factors that can contribute to a person’s mistaken identification, even if they are genuinely trying to identify the actual perpetrator and there is no malintent or extenuating circumstances (which isn’t always the case).
In addition to the issue of memory-based testimony, false confessions are also an incredibly important contributor to address. Unfortunately, there is a widespread misunderstanding that a confession is the be-all-end-all of evidence; case closed. That is far from the truth. There are three general types of false confessions: (1) Voluntary: One comes forward independent of law enforcement for things like notoriety or fame. (2) Coerced-complaint: One confesses to get out of an uncomfortable situation, with the belief that it will all get sorted out later. (3) Coerced-internalized: One confesses because they have truly come to believe in their own guilt. This can happen in a situation where a law enforcement lied to a subject, leading them to believe they were responsible for an act. It is important to understand that a confession should not close a case There are policies that can reduce the likelihood of errors, such as recording interrogations, limiting time of interrogations, asking open-ended questions instead of leading ones, and allowing all juveniles to be supervised by a guardian.
The most important idea that has been reinforced to me this summer is to approach the criminal legal system and incarcerated people with empathy. There are so many factors that can contribute to someone becoming incarcerated, many out of one’s control. This summer, my approach to cases has been to look at them holistically and with an open mind, because after all, incarcerated people are human beings with value and lives and families and are worthy of empathy and humanity, whether they are innocent or not.
Name: Alexis DiCarlo ‘24
Name of Fellowship: Professor Virginia A. Leary Memorial Fellowship
Placement: Innocence Project of Florida
Location: Tallahassee, NY
One important lesson I have learned from this fellowship: “To approach the criminal legal system and incarcerated people with empathy…because after all, incarcerated people are human beings with value, lives and families. They are worthy of empathy and humanity.”