Mandatory Justice - The Death Penalty Revisited, The Constitution Project, 2005

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Mandatory Justice - The Death Penalty Revisited, The Constitution Project, 2005

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MANDATORY JUSTICE:
The DEATH PENALTY
REVISITED

An Initiative of The Constitution Project

Copyright © by the Constitution Project. All rights reserved. No part may be reproduced, stored in a retrieval system,
or transmitted, in any form, or by means, electronic, mechanical, photocopying, recording, or otherwise, without the
prior permission of the Constitution Project.
For information about this report, or any other work of the Constitution Project, please visit our website at
www.constitutionproject.org or e-mail us at info@constitutionproject.org.

CONSTITUTION PROJECT STAFF
Emily Casteel
Program Assistant

Pedro G. Ribeiro
Communications Coordinator

Sharon Bradford Franklin
Senior Counsel

Virginia E. Sloan
President and Founder
Director, Death Penalty and Right to
Counsel Initiatives
Co-Director, Sentencing Initiative

Kathryn A. Monroe
Director, Courts Initiative
Co-Director, Sentencing Initiative
Joseph N. Onek
Senior Counsel and Director, Liberty
and Security Initiative

Raymond A. Warren
Executive Director

The Constitution Project, based in Washington, D.C., develops bipartisan solutions to
contemporary constitutional and governance issues by combining high-level scholarship
and public education.
We are grateful to the Butler Family Foundation, New Prospect Foundation, Arca
Foundation, Justice Project, and Open Society Institute for their support for our Death
Penalty Initiative over the years.

TABLE OF CONTENTS

Preface............................................................................................................................. vii
How to Read Mandatory Justice: The Death Penalty Revisited ......................................xv
Summary of Recommendations ................................................................................. xvii
Black Letter Recommendations ................................................................................. xxiii
Members of the Death Penalty Initiative ................................................................ xxxvii
Chapter I: Ensuring Effective Counsel .............................................................................1
Chapter II: Reserving Capital Punishment for the Most Heinous Offenses
and Most Culpable Offenders ..........................................................................................9
Chapter III: Expanding and Explaining Life Without Parole (LWOP) ........................29

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Chapter IV: Safeguarding Racial Fairness ......................................................................35
Chapter V: Ensuring Systems for Proportionality Review ............................................39
Chapter VI: Protecting Against Wrongful Convictions and Sentences ........................43
Chapter VII: Duty of Judge and Role of Jury ................................................................85
Chapter VIII: Role of Prosecutors ..................................................................................95
Appendix .......................................................................................................................111
Endnotes ........................................................................................................................117

PREFACE
In 2000, the Constitution Project created a blue-ribbon committee to guide its new
Death Penalty Initiative. The Committee’s members were supporters and opponents of
the death penalty. They were Democrats and Republicans, conservatives and liberals.
Collectively, they had experience with nearly every facet of the criminal justice system,
as judges, prosecutors, policymakers, victim advocates, defense lawyers, journalists, and
scholars. What originally motivated these individuals, and what continues to do so, is their
profound concern that, in recent years and around the country, procedural safeguards and
other assurances of fundamental fairness in the administration of capital punishment
have been revealed to be deeply ﬂawed. Their commitment was to an effort to overcome
the political and philosophical divisions that have long plagued this country’s debate over
the death penalty.
In 2001, the Committee released Mandatory Justice: Eighteen Reforms to the Death Penalty,
which contains the consensus recommendations of this remarkable, and remarkably
diverse, group. Since then, courts and state legislatures around the country have instituted
changes that, for the most part, improve the accuracy of their capital punishment systems.
Many of these changes have had bipartisan support. It appears that the divisions between
“liberals” and “conservatives,” and between death penalty proponents and opponents,
are disappearing. This is surely because, no matter what their political perspectives or
views about capital punishment itself, all Americans share a common interest in justice
for victims of crimes and for those accused of those crimes.
Ultimately, however, committee members’ own experiences continue to support their
conclusion that the current system is a disservice to those most closely connected with it.
Delays and mistakes prevent victims from experiencing ﬁnality, and unjustly accused or
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convicted individuals lose years of their lives. Equally as important, when we convict the
innocent, the actual perpetrators remain at large, and in some cases continue to inﬂict
immeasurable harm on others. A second trial if the perpetrator is apprehended means that
victims and their families must endure additional suffering. This country’s commitment
to protecting the interests of all of these individuals and to a secure society mandates
urgent, dramatic, and system-wide changes.
Committee members, many of whom have worked within the system, well know of the
conscientious, diligent, and often heroic efforts of those who are judges, prosecutors,
defense lawyers, and law enforcement ofﬁcers, and who must often serve under the
most demanding of circumstances. They know that it is extraordinarily difﬁcult, if not
impossible, for these public servants to carry out their responsibilities and that, as a result,
those the system is designed to protect instead frequently feel victimized by it.
When it released Mandatory Justice in 2001, the Committee predicted that additional
experience, study, and reﬂection might require further recommendations. The new
recommendations contained in Mandatory Justice: The Death Penalty Revisited demonstrate
the prescience of that statement. These new recommendations fall into three categories.
First are recommendations that address changes in the law since Mandatory Justice
was issued in 2001. Second are those that address new areas that committee members
identiﬁed as contributing to errors and injustices. And third are those recommendations
that remain unchanged because, unfortunately, the problems they were meant to address
continue to afﬂict our system, engendering the grave injustices that have diminished
conﬁdence in it.
In 2000 and 2002, Columbia University legal and social science scholars released a landmark
two-part report, entitled “A Broken System: Error Rates in Capital Cases 1973-1995,” that
galvanized nationwide public debate with its ﬁndings that federal courts overturned twothirds of state capital convictions and sentences for serious constitutional errors, and
that these errors were primarily due to egregiously inadequate defense lawyering and
prosecutorial misconduct. The report examined capital cases before the 1996 enactment
of the Anti-Terrorism and Effective Death Penalty Act, which dramatically reduced the
federal courts’ ability to review these cases.
The Committee’s conclusions in the original Mandatory Justice were consistent with the
Columbia University study’s ﬁndings. Since Mandatory Justice was released, innocent
people have continued to be exonerated and released from death row. According to the
Death Penalty Information Center, 119 innocent people around the country have been
freed from death row since the 1970’s, 28 of them from 2001 to the present. Poor people
accused of capital crimes are still represented by lawyers who are intoxicated, sleep during
trial, and, no matter how well-meaning, lack the knowledge, skills and resources to defend
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a capital case. Individuals with compelling claims of innocence are still confronted with
obstacles to the testing of DNA and other potentially exculpatory evidence, and they
continue to face procedural barriers to presenting exculpatory evidence to any court. It
is still the law that if a lawyer fails to raise an issue in the state courts, a federal court is
except in the rarest of circumstances prevented from ruling on it, no matter how valid it
may be.
Ironically, as these new recommendations are being sent to press, Congress is considering
the Streamlined Procedures Act (SPA), which would create even more barriers to redress
by stripping the federal courts of their jurisdiction to hear the vast majority of habeas
corpus petitions in state capital and non-capital cases. The SPA makes an exception for
cases of “actual innocence,” but many experts have expressed serious concerns about the
proposal, arguing that it would in fact preclude valid claims from wrongly convicted and
sentenced individuals and that the exception would not provide sufﬁcient protection.
The exonerations of people in prison and on death row have taught Americans a hard
lesson — that our criminal justice system is fallible, and that courts may convict the
wrong person. Public opinion is shifting as a result. Death sentences in all states that
allow capital punishment have dropped by 54 percent and executions by 40 percent
since 1999.
Many Americans believe that as the technology advances, DNA will act as a “fail-safe”
mechanism because it exists in most, if not all, criminal cases. This belief is, however,
based on a fundamental misunderstanding. In the vast majority of criminal cases, there is
no biological evidence to test. Even if such evidence does exist, in some cases it is destroyed
after trial; thus it is unavailable for examination through ever-more sophisticated
techniques. DNA is not, and never will be, the “fail-safe” that the public desires.
With the release of Mandatory Justice in 2001, members of the Committee joined with a
myriad of other individuals and groups expressing their concerns about the death penalty
and working tirelessly for change. Mandatory Justice has been distributed widely, by both
the Constitution Project and allied organizations. State legislators considering reforms to
their death penalty systems have relied on its recommendations, and committee members
have spoken out on a host of issues related to capital punishment in the media, speeches,
and articles in a variety of publications.
As the examples set forth below demonstrate, committee members were committed
to the Constitution Project’s mission of using the recommendations as a basis for
practical efforts, in a variety of forums, to educate policymakers, the courts, the
media, and the public.

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•

The Committee’s co-chairs testiﬁed before Congress on three occasions in support
of provisions in the Innocence Protection Act aimed at improving the quality of
counsel in capital cases and to make DNA testing more readily available. The cochairs and members also testiﬁed before a variety of state legislatures and other
policy-making bodies. Most recently, co-chair Gerald Kogan testiﬁed before the
New York State legislature in opposition to a bill to reinstate the death penalty
that lacked sufﬁcient safeguards. In a written statement, member Scott Turow also
urged rejection of the bill. He also sent copies of his book, Ultimate Punishment:
A Lawyer’s Reﬂections on Dealing with the Death Penalty, along with a personal
letter, to key legislators. Member Paula Kurland testiﬁed before the Texas state
legislature in support of allowing juries to consider the option of life without
possibility of parole. All of these efforts were successful.

•

Members William S. Sessions and John Gibbons joined Illinois Death Penalty
Commission co-chair Thomas Sullivan and Timothy Lewis, a member of the
Constitution Project’s Right to Counsel Initiative blue-ribbon committee, in two
inﬂuential amicus curiae briefs before the Supreme Court. In Banks v. Cockrell,
these former federal judges and prosecutors urged the Court to hear Mr. Banks’
case, and in a dramatic act, the Court stopped Mr. Banks’ execution 10 minutes
before it was to occur and agreed to consider his appeal. The same group then
argued in a second brief that his conviction and death sentence were tainted by
prosecutorial withholding of critical exculpatory evidence. Ultimately, in Banks v.
Dretke, the Court ordered that the sentence be vacated and that the lower court
review his conviction. The Committee and its members submitted amicus briefs
in a host of other landmark cases, such as Wiggins v. Smith, in which the Supreme
Court ordered a new sentencing hearing based on the failure of the defense lawyer to
present mitigating evidence at sentencing, Miller-El v. Cockrell, in which the Court
ordered a new hearing on a claim of racial bias, Miller-El v. Dretke, in which the
Court granted Mr. Miller-El’s habeas petition because of that racial bias, and Roper
v. Simmons, in which the Court struck down the juvenile death penalty.

•

Several committee members serve on the Honorary Board of the Mid-Atlantic
Innocence Project, and on the Advisory Board for the Innocence Commission for
Virginia (ICVA), which is a joint project of the Constitution Project, the Mid-Atlantic
Innocence Project, and the Accuracy Project at George Mason University. While
Mandatory Justice presents a broad nationwide view, it does not examine speciﬁc
cases and speciﬁc state practices. By contrast, the ICVA examined 11 acknowledged
cases of wrongful conviction in Virginia in making recommendations for reforms.
The experience of the Constitution Project and its committee members lent
considerable expertise to the ICVA’s work.

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The Committee’s efforts, and those of a host of other organizations and individuals across
the country, have had dramatic results. In the states, Democrats and Republicans alike
have addressed systemic inaccuracies and injustices. Most prominently, in April 2002,
the Illinois Commission on Capital Punishment released a comprehensive report and
85 recommendations for reform. The Commission was appointed by the then-governor,
Republican George Ryan, after he found that the state had cleared more death row inmates
than it had executed. He imposed a moratorium on the state’s use of capital punishment
while awaiting the report. The Illinois Legislature has passed several reform measures,
but current Governor Rod Blagojevich, a Democrat, has refused to lift the moratorium,
declaring that the system is far from “ﬁxed.” In New Jersey, where the Supreme Court
ordered state corrections ofﬁcials to change the way lethal injections are administered,
Acting Democratic Governor Richard Codey has called on the state legislature to pass
a moratorium against executions. There have been commissions to study the death
penalty in 14 states, and others are considering proposals for a moratorium and a variety
of reforms. As noted above, Texas — one of only two states refusing to allow jurors to
consider a sentence of life without possibility of parole instead of the death penalty — has
just given them that option.
Death penalty statutes in New York and Kansas were ruled unconstitutional by those states’
high courts in 2004. In New York, the Democratic controlled State Assembly defeated an
attempt to reinstate the law. Many legislators who had voted for the death penalty when it
became law just 10 years ago opposed its reinstatement because of the risk of error.
At the same time, however, there are efforts to create or expand death penalty laws. In
Massachusetts, which has no death penalty, Republican Governor Mitt Romney has
proposed a statute, based on the recommendations of a task force of forensic and legal
experts, that would replace the traditional “reasonable doubt” standard for conviction
with a “no doubt” standard. Prospects for the legislation are uncertain, largely because of
doubts that this standard could be met.
It is remarkable, given their extraordinarily busy schedules, that committee members
have given so much of their time, experience, and effort to this work and it was inevitable
that some would be unable to continue. Thus Kurt Schmoke, Timothy Lynch, Mario
Cuomo, Rosalyn Carter, Sam Millsap, LeRoy Riddick, and Vin Weber left the Committee
at various points over the past few years. Committee members Charles Ruff and Ann
Landers passed away. Our original reporters, Duke Law Professor Robert Mosteller and
DePaul Law Professor Susan Bandes, who so ably drafted the original recommendations
and guided the Committee to consensus, were no longer able to put aside other demands
on their time. They, along with George Washington University Law Professor Stephen
Saltzburg and Dr. William J. Bowers, of the College of Criminal Justice at Northeastern

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University, no longer serve as reporters. The Constitution Project is grateful for the
enormous contributions made by the Committee’s former members and reporters, and
for their continued willingness to speak out and provide more informal advice.
At the same time, we are fortunate that other equally inﬂuential and expert individuals
have joined the Committee. Scott Turow, the best-selling author and member of Governor
Ryan’s Commission; Charles Blackmar, the former chief justice of the Missouri Supreme
Court; and Frank Stokes, a retired FBI Special Agent, have made noteworthy contributions
to the Committee’s work. Mr. Turow’s book about his experience with the death penalty,
Ultimate Punishment: A Lawyer’s Reﬂections on Dealing with the Death Penalty, is a riveting
and pragmatic reﬂection on the inequities in the imposition of capital punishment, the
“condemning of the innocent or the undeserving,” and the reluctance of policymakers
and the public to support essential reforms.
Our new reporters, Andrew Taslitz and Margaret Paris, professors of law at Howard
University and The University of Oregon, respectively, carried on seamlessly and with
great authority and expertise. We have received ﬁrst-rate guidance from others as well.
Dr. Richard Bonnie, Professor of Law and of Psychiatric Medicine, and Director of the
Institute of Law, Psychiatry and Public Policy, at the University of Virginia, advised
the Committee on its new recommendations on mental illness and implementation
of the Supreme Court’s decision in Atkins v. Virginia, which prohibits the execution
of individuals with mental retardation. We consulted with our colleagues at the
Innocence Project at Cardozo School of Law, who blazed the DNA trail, on our new
recommendations on that subject. The Constitution Project’s wonderful interns, Sophia
Smith-Savedoff and Jennifer Reid, have deftly managed the ﬁnal editing process, to
which Adam Ortiz, a Soros Fellow, also contributed.
Despite the shifting membership, the Committee’s mission has not changed, and it deserves
restatement here. Committee members believe that individuals who commit violent crimes
deserve swift and certain punishment. Some of the members of the Committee believe
that the range of punishment may include death; others do not. But they all agree that no
one should be denied basic constitutional protections, including a competent lawyer, a fair
trial, and full judicial review of the conviction and sentence. The denial of such protections
heightens the danger of wrongful conviction and sentence.
In 2003, Governor Ryan commuted to life the sentences of all of Illinois’ death row inmates,
except for four who received outright pardons. Explaining this dramatic action, he said
“Our capital system is haunted by the demon of error: error in determining guilt and
error in determining who among the guilty deserves to die.” Because of his actions, and
the efforts of the Constitution Project’s committee members and countless others, there
has been a profound transformation in our nation’s understanding of the inaccuracies and
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injustices that haunt our capital punishment system and the corresponding risk of wrongful
convictions and executions. The recommendations that follow reﬂect the Committee’s belief
that, despite this deeper public understanding and the progress that has been made, this risk
remains all too real and much more remains urgently to be done.
Virginia E. Sloan
President and Founder
The Constitution Project
July 2005

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HOW TO READ
MANDATORY JUSTICE:
THE DEATH PENALTY REVISITED
For ease of transition, the updated recommendations are incorporated into the text
of the original Mandatory Justice. In many cases, the original recommendations
are as relevant as when they were ﬁrst issued. In others, changes in the law mean
that the recommendations are no longer needed. Thus, for example, the original
recommendation in Chapter II that the execution of individuals with mental retardation
and of juveniles be prohibited has been included as new Recommendation 4, but its
original commentary has been deleted and additional recommendations addressing new
limits on death penalty eligibility have been added. In all other chapters, the original
language has been maintained and Editors’ Notes highlight updates in the law or certain
other relevant information. Recommendations and commentary that are new in this
publication are designated by the words “2005 Update” following each mention of the
new recommendation.
All recommendations continue to be addressed to those who occupy critical roles in the
capital punishment system, including the defense attorney, the prosecutor, the jury, the
trial judge, and the reviewing courts. As in the Committee’s original recommendations,
the new recommendations are intended to create safeguards against the endemic tendency
of decision makers in the criminal justice system to “pass the buck.” They emphasize that
each, individually, has the responsibility to ensure, to the best of his or her ability, that
justice is done.

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SUMMARY OF
RECOMMENDATIONS
CHAPTER I: ENSURING EFFECTIVE COUNSEL
1.

Every jurisdiction that imposes capital punishment should create an independent
authority to screen, appoint, train, and supervise lawyers to represent defendants
charged with a capital crime. It should set minimum standards for these lawyers’
performance. An existing public defender system may comply if it implements the
proper standards and procedures.

Capital defense lawyers should be adequately compensated, and the defense should
be provided with adequate funding for experts and investigators.

The current Supreme Court standard for effective assistance of counsel (Strickland
v. Washington) is poorly suited to capital cases. It should be replaced in such cases
by a standard requiring professional competence in death penalty representation.

CHAPTER II: RESERVING CAPITAL PUNISHMENT FOR THE MOST
HEINOUS OFFENSES AND MOST CULPABLE OFFENDERS
4-7. There should be only ﬁve factors rendering a murderer eligible for capital
punishment. Jurisdictions should exclude from death eligibility those cases in which
eligibility is based solely upon felony murder and should not use felony murder as
an aggravating circumstance. Individuals with severe mental disorders should not
be eligible for the death penalty, and states should establish reliable procedures to
determine the issue of mental retardation. (2005 Update.)
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CHAPTER III: EXPANDING AND EXPLAINING LIFE WITHOUT
PAROLE (LWOP)
8.

Life without the possibility of parole should be a sentencing option in all death
penalty cases in every jurisdiction that imposes capital punishment.

The judge should inform the jury in a capital sentencing proceeding about all
statutorily authorized sentencing options, including the true length of a sentence of
life without parole. This is commonly known as “truth in sentencing.”

CHAPTER IV: SAFEGUARDING RACIAL FAIRNESS
10.

All jurisdictions that impose the death penalty should create mechanisms to help
ensure that the death penalty is not imposed in a racially discriminatory manner.

CHAPTER V: ENSURING SYSTEMS FOR PROPORTIONALITY
REVIEW
11.

Every state should adopt procedures for ensuring that death sentences are meted out
in a proportionate manner to make sure that the death penalty is being administered
in a rational, non-arbitrary, and even-handed fashion, to provide a check on broad
prosecutorial discretion, and to prevent discrimination from playing a role in the
capital decision-making process.

CHAPTER VI: PROTECTING AGAINST WRONGFUL CONVICTIONS
AND SENTENCES
EXCULPATORY AND NEWLY DISCOVERED EVIDENCE; CREDIBLE CLAIMS OF INNOCENCE

12.

Legislation should provide that, notwithstanding any procedural bars or time
limitations, exculpatory DNA evidence may be presented at a hearing to determine
whether a conviction or death sentence was wrongful, and if so, that any erroneous
conviction or sentence be vacated.

13.

Where the results of post-conviction DNA testing exclude the defendant or are
inconsistent with the prosecution’s theory, prosecutors should promptly consent
to vacate the conviction, and should not retry (or threaten to retry) the defendant
unless convinced that compelling evidence remains of the defendant’s guilt beyond
a reasonable doubt. (2005 Update.)

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14.

All jurisdictions that impose capital punishment should ensure adequate
mechanisms for introducing newly discovered evidence that would more likely
than not produce a different outcome at trial or that would undermine conﬁdence
that the sentence is reliable, even though the defense would otherwise be prevented
from introducing the evidence because of procedural barriers.

15.

Capital defendants who establish a credible claim of innocence should have access
to post-conviction relief, even after all avenues for relief have been exhausted and
regardless of whether there is any other legal bar to the claim of factual error.
(2005 Update.)

LEARNING FROM WRONGFUL CONVICTIONS AND SENTENCES AND AVOIDING FUTURE
WRONGFUL CONVICTIONS AND SENTENCES

16.

All jurisdictions should (a) review capital cases in which defendants were
exonerated to identify the causes of the error and to correct systemic ﬂaws; (b)
adequately fund Capital Case Innocence Projects; (c) establish a Capital Case
Early Warning Coordinating Council to identify systemic ﬂaws in an effort to
avert mistaken convictions before they happen; and d) fund efforts to increase
sensitivity to innocence issues in capital cases among students, the police, judges,
and the American public. (2005 Update.)

DNA EVIDENCE

17.

DNA evidence should be preserved and it should be tested and introduced in cases
where it may help to establish that an execution would be unjust.

18.

Government ofﬁcials should promptly and readily consent to DNA testing on
biological evidence from criminal investigations that remains in their custody.
The state should also make evidence available for DNA testing in cases in which
defendants convicted of capital crimes have already been executed and post-mortem
DNA testing may be probative of guilt or innocence. (2005 Update.)

19.

If the government fails to submit DNA proﬁles from the defendant’s or a related
case to DNA databanks, the defendant should have the right to petition a court for,
and that court should have the power to issue, an order that the government submit
the proﬁles to those databanks. (2005 Update.)

FORENSIC LABORATORIES

20.

The testimony of a prosecution forensic examiner not associated with an accredited
forensics laboratory should be excluded from evidence. (2005 Update.)

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21.

Laboratories should be accredited only when they meet stringent scientiﬁc standards.
(2005 Update.)

22.

Forensics laboratories should audit all death penalty cases when there is reason to
believe that an examiner engaged in forensic fraud or an egregious act of forensic
negligence in any case (whether capital or not) during the examiner’s professional
career. (2005 Update.)

VIDEOTAPING AND RECORDING OF CUSTODIAL INTERROGATIONS

23.

Custodial interrogations of a suspect in a homicide case should be videotaped or
digitally video recorded whenever practicable. Recordings should include the entire
custodial interrogation process. Where videotaping or digital video recording
is impracticable, an alternative uniform method, such as audiotaping, should be
established. Where no recording is practicable, any statements made by the homicide
suspect should later be repeated to the suspect and his or her comments recorded.
Only a substantial violation of these rules requires suppression at trial of a resulting
statement. (2005 Update.)

CHAPTER VII: DUTY OF JUDGE AND ROLE OF JURY
24.

Appellate courts reviewing capital convictions for sufﬁciency of the evidence should
reverse if a reasonable jury could not have found guilt beyond a reasonable doubt.
(2005 Update.)

25.

If a jury imposes a life sentence, the judge in the case should not be allowed to
“override” the jury’s recommendation and replace it with a sentence of death.

26.

The judge in a death penalty trial should instruct the jury that if any juror has
lingering doubt about the defendant’s guilt, that doubt may be considered as a
“mitigating” circumstance that weighs against a death sentence.

27.

The judge in a death penalty trial must ensure that each juror understands his or
her individual obligation to consider mitigating factors in deciding whether a death
sentence is appropriate under the circumstances.

CHAPTER VIII: ROLE OF PROSECUTORS
28.

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investigative agencies. Even if a jurisdiction does not adopt open-ﬁle discovery, it
is especially critical in capital cases that the defense be given all favorable evidence
(Brady material), and that the jurisdiction create systems to gather and review all
potentially favorable information from law enforcement and investigative agencies.
29.

Prosecutors should establish internal guidelines on seeking the death penalty
in cases that are built exclusively on types of evidence (stranger eyewitness
identiﬁcations and statements of informants and co-defendants) particularly
subject to human error.

30.

Prosecutors should engage in a period of reﬂection and consultation before any
decision to seek the death penalty is made or announced. (2005 Update.)

31.

All capital jurisdictions should establish a Charging Review Committee to review
prosecutorial charging decisions in death eligible cases. Prosecutors in death eligible
cases should be required to submit proposed capital and non-capital charges to
the committee. The committee should be required to issue binding approvals or
disapprovals of proposed capital charges, with an accompanying explanation. Each
jurisdiction should forbid prosecutors from ﬁling a capital charge without the
committee’s approval. (2005 Update.)

32.

Foreign nationals who were not afforded rights to consular notiﬁcation and access
under the Vienna Convention on Consular Relations (VCCR) should not be eligible
for the death penalty. The chief law enforcement ofﬁcer for each state with capital
punishment and for the federal government should ensure full compliance with the
VCCR. An independent authority should report regularly to the chief executive or
legislature about compliance with the VCCR. (2005 Update.)

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BLACK LETTER
RECOMMENDATIONS
CHAPTER I: ENSURING EFFECTIVE COUNSEL
1.

Each State Should Create Independent Appointing Authorities.
Each state should create or maintain a central, independent appointing authority
whose role is to “recruit, select, train, monitor, support, and assist” attorneys
who represent capital clients.1 The authority should be composed of attorneys
knowledgeable about criminal defense in capital cases, and who will operate
independent of conﬂicts of interest with judges, prosecutors, or any other parties.
This authority should adopt and enforce a set of minimum standards for appointed
counsel at all stages of capital cases, including state or federal post-conviction and
certiorari. An existing statewide public defender ofﬁce or other assigned counsel
program should meet the deﬁnition of a central appointing authority, providing it
implements the proper standards and procedures.

Each Jurisdiction Should Provide Competent and Adequately Compensated
Counsel at All Stages of Capital Litigation and Provide Adequate Funding for
Expert and Investigative Services.
Every capital defendant should be provided with qualiﬁed and adequately
compensated attorneys at every stage of the capital proceeding, including state
and federal post-conviction and certiorari. Each jurisdiction should adopt a
stringent and uniform set of qualiﬁcations for capital defense at each stage of the
proceedings. Capital attorneys should be guaranteed adequate compensation for
their services, at a level that reﬂects the “extraordinary responsibilities of counsel
in death penalty litigation.”2 Such compensation should be set according to actual
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time and service performed, and should be sufﬁcient to ensure that an attorney
meeting his or her professional responsibility to provide competent representation
will receive compensation adequate for reasonable overhead; reasonable litigation
expenses; reasonable expenses for expert, investigative, support, and other services;
and a reasonable return.
3.

The Strickland v. Washington Standard for Effective Assistance of Counsel at
Capital Sentencing Should be Replaced.
Every state that permits the death penalty should adopt a more demanding standard
to replace the current test for effective assistance of counsel in the capital sentencing
context. Counsel should be required to perform at the level of an attorney reasonably
skilled in the specialized practice of capital representation, be zealously committed
to the capital case, and possess adequate time and resources to prepare.3 Once a
defendant has demonstrated that his or her counsel fell below the minimum standard
of professional competence in death penalty litigation, the burden should shift to the
state to demonstrate that the outcome of the sentencing hearing was not affected by
the attorney’s incompetence. Moreover, there should be a strong presumption in favor
of the attorney’s obligation to offer at least some mitigating evidence.

CHAPTER II: RESERVING CAPITAL PUNISHMENT FOR THE MOST
HEINOUS OFFENSES AND MOST CULPABLE OFFENDERS
4.

Individuals with Mental Retardation, Those Who Were Under 18 at the Time of
the Offense, and Those Convicted of Felony Murder Should Be Excluded from
Death Penalty Eligibility.
Jurisdictions should exclude from eligibility for the death penalty those cases
involving persons with mental retardation, persons under the age of eighteen at
the time of the crimes for which they are convicted, and those convicted of felony
murder who did not kill, intend to kill, or intend that a killing occur should be
excluded from eligibility for capital punishment.

Death Penalty Eligibility Should be Limited to Five Factors:

•
•
•

The murder of a peace ofﬁcer killed in the performance of his or her ofﬁcial
duties when done to prevent or retaliate for that performance.
The murder of any person (including but not limited to inmates, staff, and
visitors) occurring at a correctional facility.
The murder of two or more persons regardless of whether the deaths occurred as
the result of the same act or of several related or unrelated acts, as long as either
(a) the deaths were the result of an intent to kill more than one person, or (b) the

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•

defendant knew the act or acts would cause death or create a strong probability of
death or great bodily harm to the murdered individuals or others.
The intentional murder of a person involving the inﬂiction of torture. In this
context, torture means the intentional and depraved inﬂiction of extreme
physical pain for a prolonged period of time prior to the victim’s death; and
depraved means that the defendant relished the inﬂiction of extreme physical
pain upon the victim, evidencing debasement or perversion, or that the defendant
evidenced a sense of pleasure in the inﬂiction of extreme physical pain.
The murder by a person who is under investigation for, or who has been
charged with or has been convicted of, a crime that would be a felony, or the
murder of anyone involved in the investigation, prosecution, or defense of that
crime, including, but not limited to, witnesses, jurors, judges, prosecutors, and
investigators. (2005 Update.)

Felony Murder Should be Excluded as the Basis for Death Penalty Eligibility.
The ﬁve eligibility factors in Recommendation 5, which are intended to be an
exhaustive list of the only factors that may render a murderer eligible for capital
punishment, do not include felony murder as a basis for imposing the death penalty.
To ensure that the death penalty is reserved for the most culpable offenders and
to make the imposition of the death penalty more proportional, jurisdictions that
nevertheless choose to go beyond these ﬁve eligibility factors should still exclude from
death eligibility those cases in which eligibility is based solely upon felony murder.
Any jurisdiction that chooses to retain felony murder as a death penalty eligibility
criterion should not permit using felony murder as an aggravating circumstance.
(2005 Update.)

Persons with Severe Mental Disorders Should be Excluded from Death Penalty
Eligibility.
Persons with severe mental disorders whose capacity to appreciate the nature,
consequences or wrongfulness of their conduct, to exercise rational judgment in
relation to the conduct, or to conform their conduct to the requirements of law
was signiﬁcantly impaired at the time of the offense should be excluded from death
eligibility. (2005 Update.)

CHAPTER III: EXPANDING AND EXPLAINING LIFE WITHOUT PAROLE
(LWOP)
8.

Each Jurisdiction Should Ensure the Availability of a Life Sentence without Parole.
In all capital cases, the sentencer should be provided with the option of a life sentence
without the possibility of parole.

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9.

The Court Should Explain the Meaning of a Life Sentence without Parole (Truth
in Sentencing).
At the sentencing phase of any capital case in which the jury has a role in determining
the sentence imposed on the defendant, the court should inform the jury of the
minimum length of time those convicted of murder must serve before being eligible
for parole. However, the trial court should not make statements or give instructions
suggesting that the jury’s verdict will or may be reviewed or reconsidered by anyone
else, or that any sentence it imposes will or may be overturned or commuted.

CHAPTER IV: SAFEGUARDING RACIAL FAIRNESS
10.

Each Jurisdiction Should Implement Comprehensive Programs to Safeguard
Racial Fairness.
Each jurisdiction should undertake a comprehensive program to help ensure that
racial discrimination plays no role in its capital punishment system, and to thereby
enhance public conﬁdence in the system. Because these issues are so complex and
difﬁcult, two approaches are appropriate. One very important component —
perhaps the most important — is the rigorous gathering of data on the operation of
the capital punishment system and the role of race in it. A second component is to
bring members of all races into every level of the decision-making process.

CHAPTER V: ENSURING SYSTEMS FOR PROPORTIONALITY REVIEW
11.

Each State Should Implement Procedures to Ensure Proportionate Death Sentences.
In order to (a) ensure that the death penalty is being administered in a rational, nonarbitrary, and even-handed manner, (b) provide a check on broad prosecutorial
discretion, and (c) prevent discrimination from playing a role in the capital
decision-making process, every state should adopt procedures for ensuring that
death sentences are meted out in a proportionate manner.

CHAPTER VI: PROTECTING AGAINST WRONGFUL CONVICTIONS
AND SENTENCES
EXCULPATORY DNA EVIDENCE AND NEWLY DISCOVERED EVIDENCE; CREDIBLE CLAIMS
OF INNOCENCE

12.

The Presentation of Exculpatory DNA Evidence Should Be Allowed Notwithstanding Procedural Bars.
If exculpatory evidence is produced by DNA testing, notwithstanding other
procedural bars or time limitations, legislation should provide that the evidence
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may be presented at a hearing to determine whether the conviction or sentence was
wrongful. If the conviction or sentence is shown to be erroneous, the legislation
should require that the conviction or sentence be vacated.
13.

Prosecutors Should Consent to Vacating a Conviction and/or a Sentence When
DNA Testing Excludes the Defendant or When the Result is Inconsistent with the
Government’s Prosecution Theory.
Where post-conviction DNA testing is performed and excludes the defendant,
or otherwise yields a result that is inconsistent with the theory under which he
or she was prosecuted, convicted, or sentenced, prosecutors should promptly
and readily consent to vacate the conviction and/or sentence. In such cases,
prosecutors should neither threaten to retry nor commence retrial proceedings
against the defendant, unless, notwithstanding the exculpatory DNA test
results, there remains highly credible evidence of the defendant’s guilt beyond a
reasonable doubt. (2005 Update.)

14.

Procedural Barriers to the Introduction of Newly Discovered Exculpatory
Evidence Should Be Lifted.
State and federal courts should ensure that every capital defendant is provided
an adequate mechanism for introducing newly discovered evidence that would
otherwise be procedurally barred, where it would more likely than not produce a
different outcome at trial, or where it would undermine conﬁdence in the reliability
of the sentence.

15.

Post-Conviction Review in Cases of Credible Claims of Innocence Should
Be Provided.
Post-conviction relief should be available to review, and correct causes of error
in, the cases of all capital defendants who establish a credible claim of innocence,
even after all traditional appellate and post-conviction avenues for relief have been
exhausted and regardless of whether there is any other legal bar to the claim of
factual error. (2005 Update.)

LEARNING FROM WRONGFUL CONVICTIONS AND SENTENCES AND AVOIDING FUTURE
WRONGFUL CONVICTIONS AND SENTENCES

16.

Procedures for Systemic Review of Exonerations and for Avoiding Future Errors
Should Be Established.

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•
•
•

Jurisdictions should adequately fund the creation (where they do not exist) and
operation of Capital Case Innocence Projects.
Each jurisdiction should establish a Capital Case Early Warning Coordinating
Council to identify on an ongoing basis systemic ﬂaws that, once corrected,
should help in an effort to avert mistaken convictions before they happen.
Jurisdictions should also adequately fund efforts to increase sensitivity to
innocence issues in capital cases in high schools, colleges, law schools, police
academies, judicial training programs, and among the broader American public.
(2005 Update.)

DNA EVIDENCE

17.

The Government Should Preserve and Use DNA Evidence to Establish
Innocence or Avoid an Unjust Execution.
In cases where the defendant has been sentenced to death, states and the federal
government should enact legislation that requires the preservation and permits the
testing of biological materials not previously subjected to effective DNA testing,
where such preservation or testing may produce evidence favorable to the defendant
and relevant to the claim that he or she was wrongfully convicted or sentenced.
These laws should provide that biological materials must be generally preserved
and that, as to convicted defendants, existing biological materials must be preserved
until defendants can be notiﬁed and provided an opportunity to request testing
under the jurisdiction’s DNA testing requirements. These laws should provide for
the use of public funds to conduct the testing and to appoint counsel where the
convicted defendant is indigent.

18.

The Government Should Consent to Preserve, Inspect, and Test Biological Evidence.
All government ofﬁcials should promptly and readily consent to preservation, inspection,
and testing of biological evidence in their custody that is reasonably likely to aid in
identifying the true perpetrator(s) of a criminal offense. Such consent should be freely
given, without requiring the individual seeking DNA testing to engage in protracted
litigation, in the pre-trial, trial, and post-conviction phases of criminal proceedings. This
obligation should also extend to cases in which capital defendants have been executed,
given the public’s strong and continued interest in ensuring the accuracy of the criminal
justice system, and the lack of any interest by the state in barring DNA testing once a
death sentence has been meted out. (2005 Update.)

19.

The Government Should Be Required to Submit DNA Proﬁles to DNA Databanks
in Certain Cases.
If law enforcement agencies fail to submit to a state or federal DNA databank (a)
unidentiﬁed DNA proﬁles obtained from evidence in a defendant’s case, and/or
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(b) unidentiﬁed DNA proﬁles from cases that reasonably appear to be related to
the offense for which another defendant was convicted, the defendant should have
the right to petition a court for, and the court shall have the right to issue, an order
requiring the state to submit such proﬁles to state and federal DNA databanks for
comparison purposes. (2005 Update.)
FORENSIC LABORATORIES

20.

The Testimony of Forensic Examiners Not Associated with Accredited
Laboratories Should Be Excluded.
Testimony from a forensic examiner offered by the prosecution in capital cases
should be excluded from evidence when the examiner is not associated with an
accredited forensic laboratory. (2005 Update.)

21.

Accreditation of Laboratories Should Be Limited.
Accreditation should be permitted only for laboratories that:
employ certiﬁed technicians;
do not release results based on insufﬁciently validated techniques;
articulate and enforce written standard protocols; and
require examiner proﬁciency testing in the particular technique in question.
(2005 Update.)

•
•
•
•
22.

Forensic Laboratories Should Be Audited in Cases of Egregious Negligence
or Fraud.
Every forensic laboratory should have in place a procedure for triggering an audit
of all death penalty cases handled by any of its examiners when there is reason to
believe that the examiner has engaged in an egregious act of forensic negligence or
in any act of forensic fraud in any case (whether capital or not) that he or she has
handled during his or her professional career. (2005 Update.)

VIDEOTAPING AND RECORDING OF CUSTODIAL INTERROGATIONS

23.

Interrogations of Homicide Suspects Should Be Videotaped or Digitally Recorded
Whenever Practicable.

•
•
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•
•
•
•

•
•

Where videotaping or digital video recording is impracticable, some alternative
uniform method for accurately recording the entire custodial interrogation
process, such as by audio taping, should be established.
Police investigators should carry audiotape recorders for use when conducting
custodial interrogations of suspects in homicide cases outside the police station
or in other locations where video recording is impracticable, and all such
interviews should be audio taped.
Where neither visual nor audio recording is practicable, any statements made
by the homicide suspect should at a later time be repeated to the suspect on
videotape or by digital video recording and his or her comments recorded.
Whenever only an audio recording is made, the state should bear the burden of
proving by a preponderance of the evidence, at any pre-trial hearing or at trial,
that videotaping or digital video recording of the entire custodial interrogation
process was impracticable; if there has not even been an audio recording made,
the state should further bear the burden of proving by a preponderance of the
evidence that audio recording or some other uniform method of complete and
accurate recording was impracticable.
Video or audio recording of the entire custodial interrogation process should
not require the suspect’s permission.
Only a substantial violation of these rules should require suppression of a
resulting suspect statement at trial. Any violation of these rules should be
presumed substantial unless the state proves the opposite by a preponderance
of the evidence. A violation in all cases should be deemed substantial if one or
more of the following paragraphs is applicable:
4 The violation was gross, willful, and prejudicial to the accused. A violation
should be deemed willful regardless of the good faith of the individual
ofﬁcer if it appears to be part of the practice of the law enforcement agency
or was authorized by a high authority within it. A violation should also be
deemed willful if it was caused by a police department’s failure adequately to
train its ofﬁcers and other relevant personnel or by its failure adequately to
provide ofﬁcers and other relevant personnel with properly maintained and
adequate equipment to comply with this rule.
4 The violation was of a kind likely to lead accused persons to misunderstand
their position or legal rights and to have inﬂuenced the accused’s decision
to make the statement, such as where the accused person waives his or her
right to videotaping because police contributed to the person’s belief that an
untaped oral statement could not be used at trial.
4 The violation created a signiﬁcant risk that an incriminating statement may
have been untrue, such as may happen where the secrecy of the interrogation
process encourages police to use interrogation methods that create a
signiﬁcant risk of false confessions in a department with a proven record of
using such ﬂawed methods.
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•

In determining whether a violation not covered by the previous conditions is
substantial, the court should consider all the circumstances including:
4 the extent of deviation from lawful conduct, for example, by videotaping
only a small portion of the interrogation process (major deviation) versus
videotaping most, but not all, of the process (minor deviation);
4 the extent to which the violation was willful;
4 the extent to which exclusion would tend to prevent violations of this
recommendation;
4 whether there is a generally effective system of administrative or other
sanctions that makes it less important that exclusion be used to deter such
violations in the future;
4 the extent to which the violation prejudiced the defendant’s ability to
support a motion to exclude a confession, or to defend him or herself in
the proceeding in which the statement is sought to be offered in evidence
against the defendant; and
4 whether the violation made it particularly difﬁcult to prove the use of
coercive investigation techniques where adequate alternative forms of
corroborating evidence are unavailable and a defendant has made out a
prima facie case of coercion.
Whenever there is a failure for any reason to videotape, record or audiotape any
portion of, or all of, the custodial interrogation process, and the statement was
not otherwise suppressed, a defendant should be entitled, upon request, to a
cautionary jury instruction, appropriately tailored to the individual case, noting
that failure; permitting the jury to give it such weight as the jury feels that it
deserves; and further permitting the jury to use it as the basis for ﬁnding that
the statement was either not made or was made involuntarily. (2005 Update.)

CHAPTER VII: DUTY OF JUDGE AND ROLE OF JURY
24.

Courts Should Apply a More Stringent Standard for Appellate Review of
Evidentiary Sufﬁciency.
The current standard for appellate review of evidentiary sufﬁciency in criminal cases is
inappropriate in capital cases. It should be replaced with a standard requiring reversal if a
reasonable jury could not have found guilt beyond a reasonable doubt. (2005 Update.)

25.

Judges Should be Prohibited from Overriding a Jury’s Recommendation of a Life
Sentence to Impose a Sentence of Death.
Judicial override for a jury’s recommendation of life imprisonment to impose a
sentence of death should be prohibited. Where a court determines that a death
sentence would be disproportionate, where it believes doubt remains as to the
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guilt of one sentenced to death, or where the interests of justice require it, the
trial court should be granted authority to impose a life sentence despite the jury’s
recommendation of death.
26.

Trial Judges Should Instruct Juries on Lingering (Residual) Doubt.
The trial judge, in each case in which he or she deems such an instruction appropriate,
should instruct the jury, at the conclusion of the sentencing phase of a capital case
and before the jury retires to deliberate, as follows: “If you have any lingering doubt
as to the defendant’s guilt of the crime or any element of the crime, even though that
doubt did not rise to the level of a reasonable doubt when you found the defendant
guilty, you may consider that doubt as a mitigating circumstance weighing against a
death sentence for the defendant.”

27.

Judges Should Ensure That Capital Sentencing Juries Understand Their
Obligations to Consider Mitigating Factors.

•

Every judge presiding at a capital sentencing hearing has an afﬁrmative
obligation to ensure that the jury fully and accurately understands the nature
of its duty. The judge must clearly communicate to the jury that it retains the
ultimate moral decision making power over whether the defendant lives or
dies, and must also communicate that (a) mitigating factors do not need to be
found by all members of the jury in order to be considered in the individual
juror’s sentencing decision; and (b) mitigating circumstance need to be proved
only to the satisfaction of the individual juror, and not beyond a reasonable
doubt, to be considered in the juror’s sentencing decision. In light of empirical
evidence documenting serious juror confusion about the nature of the jury’s
obligation, judges must ensure that jurors understand, for example, that this
decision rests in the jury’s hands, that it is not a mechanical decision to be
discharged by a numerical tally of aggravating and mitigating factors, that it
requires the jury to consider the defendant’s mitigating evidence, and that it
permits the jury to decline to sentence the defendant to death even if sufﬁcient
aggravating factors exist.
The judge’s obligation to ensure that jurors understand the scope of their
moral authority and duty is afﬁrmative in nature. Judges should not consider it
discharged simply because they have given standard jury instructions. If judges
have reason to think such instructions may be misleading, they should instruct
the jury in more accessible and less ambiguous language. In addition, if the jury
asks for clariﬁcation on these difﬁcult and crucial issues, judges should offer
clariﬁcation and not simply direct the jury to reread the instructions.

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CHAPTER VIII: ROLE OF PROSECUTORS
28.

Prosecutors Should Provide Expanded Discovery and Ensure that Exculpatory
Information is Provided to the Defense.

•
•

•

29.

Because of the paramount interest in avoiding the execution of an innocent
person, special discovery provisions should be established to govern death
penalty cases. These provisions should provide for discovery from the
prosecution that is as full and complete as possible, consistent with the
requirements of public safety.
Full “open-ﬁle” discovery should be required in capital cases. However, discovery
of the prosecutor’s ﬁles means nothing if the relevant information is not
contained in those ﬁles. Thus, to make discovery effective in death penalty cases,
the prosecution must obtain all relevant information from all agencies involved
in investigating the case or analyzing evidence. Disclosure should be withheld
only when the prosecution clearly demonstrates that restrictions are required to
protect witnesses’ safety, or shows similarly substantial threats to public safety.
If a jurisdiction fails to adopt full open-ﬁle discovery for its capital cases, it
must ensure that it provides all exculpatory (Brady) evidence to the defense.
In order to ensure compliance with this obligation, the prosecution should be
required to certify that (a) it has requested that all investigative agencies involved
in the investigation of the case and examination of evidence deliver to it all
documents, information, and materials relevant to the case and that the agencies
have indicated their compliance; (b) a named prosecutor or prosecutors have
inspected all these materials to determine if they contain any evidence favorable
to the defense as to either guilt or sentencing; and (c) all arguably favorable
information has been either provided to the defense or submitted to the trial
judge for in camera review to determine whether such evidence meets the Brady
standards of helpfulness to the defense and materiality to outcome. When willful
violations of Brady duties are found, meaningful sanctions should be imposed.

Prosecutors Should Establish Internal Prosecutorial Guidelines or Protocols on
Seeking the Death Penalty Where Questionable Evidence Increases the Likelihood
That the Innocent Will Be Executed.
Because eyewitness identiﬁcations by strangers are fallible, co-defendants are prone
to lie and blame other participants in order to reduce their own guilt or sentence,
and jailhouse informants frequently have the opportunity and the clear motivation
to fabricate evidence to beneﬁt their status at the expense of justice, prosecutors
should establish guidelines limiting reliance on such questionable evidence in death
penalty cases. The guidelines should put that penalty off limits where the guilt of the
defendant or the likelihood of receiving a capital sentence depends upon these types
of evidence and where independent corroborating evidence is unavailable.
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30.

There Should be a Mandatory Period of Consultation Before Prosecutors Decide
Whether to Commence a Death Penalty Prosecution.
Before the decision to prosecute a case capitally is announced or commenced, a
speciﬁed time period should be set aside during which the prosecution is to examine
the propriety of seeking the death penalty and to consult with appropriate ofﬁcials
and parties.

31.

Jurisdictions Should Require a Mandatory Review of Prosecutorial Charging
Decisions in Death Eligible Cases.

•
•

32.

To ensure fairness in the application of the death penalty, each jurisdiction should
establish a Charging Review Committee responsible for reviewing prosecutorial
charging decisions in death eligible cases. The committee should be composed
of elected prosecutors and retired judges.
The following procedures should be implemented with respect to each
jurisdiction’s Charging Review Committee:
4 Prosecutors in all cases involving alleged death eligible conduct should be
required to submit proposed charges, capital or non-capital, to the Charging
Review Committee, accompanied by written statements explaining their
charging rationales.
4 The committee should be required to review these proposed charges and
supporting statements of rationale, and to respond with appropriate
comments and/or recommendations.
4 In addition, in the subcategory of death eligible cases in which the prosecution
proposes capital charges, the committee should be required to issue binding
approvals or disapprovals of those capital charges and should expressly state
its reasons for its decisions.
4 Each jurisdiction should expressly forbid prosecutors from ﬁling capital charges
without the approval of its Charging Review Committee. (2005 Update.)

The Vienna Convention on Consular Relations Should Be Enforced.

•
•
•
•

Every capital defendant who is a foreign national should be ineligible for the
death penalty if not provided with consular rights under the Vienna Convention
on Consular Relations (VCCR).
Each entity with authority to impose or carry out the death penalty should
impose on its attorney general (or another central law enforcement ofﬁcer) the
duty of ensuring full compliance with the VCCR.
This duty should include training law enforcement actors about consular rights
and monitoring adherence to those rights.
An independent authority, such as an inspector general, should report
regularly about compliance to the entity’s chief executive or legislative body.
(2005 Update.)
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MEMBERS OF THE
DEATH PENALTY INITIATIVE*
Co-Chairs
The Honorable Charles F. Baird, former Judge, Texas Court of Criminal Appeals
The Honorable Gerald Kogan, former Chief Justice, Supreme Court of the State of
Florida; former Chief Prosecutor, Homicide and Capital Crimes Division, Dade
County, Florida
Beth A. Wilkinson, Esq., Prosecutor, Oklahoma City bombing case

Members
The Reverend James E. Andrews, Stated Clerk of the General Assembly (retired),
Presbyterian Church (United States of America)
The Honorable Harry Barnes, Jr., former United States Ambassador to Romania, India,
and Chile
The Honorable Charles B. Blackmar, former Chief Justice, Supreme Court of Missouri
William G. Broaddus, Esq., former Attorney General, Commonwealth of Virginia
David I. Bruck, Esq., Clinical Professor of Law and Director, Virginia Capital Case
Clearinghouse, Washington and Lee University School of Law
The Honorable Robert J. Burns, retired Judge, Jefferson Parish, Louisiana
Rosalynn Carter, Vice Chair of The Carter Center**
W. J. Michael Cody, Esq., former Attorney General, State of Tennessee
The Honorable Mario M. Cuomo, former Governor, State of New York*** †
The Honorable John J. Gibbons, Partner, Gibbons, Del Deo, Dolan, Grifﬁnger &
Vecchione; former Chief Judge, United States Court of Appeals for the Third Circuit
Thomas A. Gottschalk, Esq., Executive Vice President and General Counsel, General
Motors Corporation
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Charles A. Gruber, Chief of Police, South Barrington Police Department; Past President,
International Association of Chiefs of Police; Past President, Illinois Association of
Chiefs of Police
Cardinal William H. Keeler, Archbishop of Baltimore
Paula M. Kurland, Victim Advocate; Founding Member, Bridges to Life (a victimoffender program in Texas); Mother of murder victim
David Lawrence, Jr., President, The Early Childhood Initiative Foundation; former
Publisher, Miami Herald and Detroit Free Press
Timothy Lynch, Director, Project on Criminal Justice, Cato Institute**
The Honorable Abner J. Mikva, Visiting Professor of Law, University of Chicago
Law School; former Member of Congress (D-IL); former Chief Judge, United
States Court of Appeals for the D.C. Circuit; White House Counsel, Clinton
administration
Sam D. Millsap, Jr., former district attorney Bexar County, San Antonio, Texas**
The Honorable Sheila M. Murphy, Executive Director, Illinois Death Penalty Education
Project; former Presiding Judge, Sixth District, State of Illinois
LeRoy Riddick, M.D., Forensic Pathologist ***
Chase Riveland, former Secretary, Department of Corrections, State of Washington
Laurie O. Robinson, Director of Science in Criminology Program and Senior
Fellow, Program on Crime Policy, Department of Criminology, University of
Pennsylvania; former Assistant Attorney General, Ofﬁce of Justice Programs,
United States Department of Justice, Clinton administration
The Honorable Kurt L. Schmoke, Dean, Howard University Law School; former Mayor,
City of Baltimore, Maryland; former State’s Attorney for the City of Baltimore,
Maryland **
The Honorable William S. Sessions, Director, Federal Bureau of Investigation, Reagan
and G.H.W. Bush administrations; former Chief Judge, United States District
Court for the Western District of Texas
G. Elaine Smith, Esq., Past President, American Baptist Churches (United States of
America)
B. Frank Stokes, Special Agent, Federal Bureau of Investigation, Retired; Private
Investigator
Jennifer Thompson, Spokesperson, Center on Wrongful Convictions
Scott Turow, Author and Partner, Sonnenschein Nath & Rosenthal
John W. Whitehead, President, The Rutherford Institute
Rabbi Eric H. Yofﬁe, President, Union for Reform Judaism

Reporters for Mandatory Justice: The Death Penalty Revisited
Professor Margaret Paris, University of Oregon School of Law
Professor Andrew E. Taslitz, Howard University School of Law
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Reporters for Mandatory Justice: Eighteen Reforms to the Death
Penalty
Professor Susan Bandes, DePaul University College of Law, Chicago, Illinois
Professor Robert P. Mosteller, Duke University School of Law, Durham, North Carolina
Professor Stephen Saltzburg, The George Washington University Law School,
Washington, D.C.

Social Science Consultant for Mandatory Justice: Eighteen
Reforms to the Death Penalty
William J. Bowers, Ph.D., College of Criminal Justice, Northeastern University, Boston,
Massachusetts

Editors
Jennifer Reid, Sophia Smith-Savedoff, Virginia E. Sloan

*
**
***
†

Afﬁliations listed for purposes of identiﬁcation only.
Member from 1999-2004.
Member from 1999-2002.
Did not review Mandatory Justice: Eighteen Reforms to the Death Penalty, 2001.

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CHAPTER I:
ENSURING EFFECTIVE COUNSEL
SUMMARY
1.

Capital defense lawyers should be adequately compensated, and the defense should
be provided with adequate funding for experts and investigators.

Overview to Chapter I

The lack of adequate counsel to represent capital defendants is likely the gravest of the
problems that render the death penalty, as currently administered, arbitrary, unfair, and
fraught with serious error — including the real possibility of executing an innocent person.
A defendant tried without adequate counsel is far more likely to be charged with and
convicted of a capital crime and to receive a death sentence. Indeed, as capital litigator and
Yale law professor Stephen Bright has observed, the quality of capital defense counsel seems
to be the most important factor in predicting who is sentenced to die — far more important
than the nature of the crime or the character of the accused.1

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The lack of adequate counsel is a one-two punch. Substandard counsel is more likely not
only to result in a client’s receiving a death sentence, but also to create an inadequate trial
record through failure to investigate and failure to preserve objections. The attorney’s
errors, unless they meet the problematic standards of Strickland v. Washington, 466 U.S.
668 (1984) (discussed below) not only adversely affect the client at trial and sentencing,
but also vastly reduce the scope of appellate review, decreasing the possibility that errors
will be corrected later. Furthermore, because there is no constitutional right to counsel
after the ﬁrst state appeal, even in capital cases, some states do not appoint counsel for
post-conviction or habeas corpus review, further insulating trial errors from correction.
Death penalty litigation is a highly specialized, legally complex ﬁeld, a “mineﬁeld for the
unwary,” in the words of the ABA Criminal Justice Section.2 Adequate preparation requires
not only a grasp of rapidly changing substantive and procedural doctrine, but also laborintensive and time-consuming factual investigation. Capital attorneys, from the trial stage
through post-conviction review, should be well-trained, experienced, and adequately
compensated, and should have sufﬁcient time and resources to perform competently
when representing clients who are facing the possibility of execution. Instead, study after
study documents a national crisis in the quality of counsel in death penalty cases and calls
for reform — with little success.
Some states (for example, Alabama, Mississippi, and Texas) have no public defender
system, and no central appointing authority to screen and monitor appointed counsel.
Many states assign only a single lawyer to represent a capital defendant; do not require
any level of experience or expertise; do not provide or require training; do not screen
out lawyers with serious disciplinary records; fail to monitor performance of counsel;
inadequately compensate counsel; and refuse to provide funds for crucial investigators,
experts, and other essential resources. Unsurprisingly, few attorneys are willing to take on
capital cases, and those who do are often “thoroughly incapable of mounting an effective
defense during either the guilt or punishment
phases of the capital case.”3
EDITOR’S NOTE
Alabama and Mississippi still have
no public defender system. Texas
has now created a Task Force on
Indigent Defense, although no
statewide public defender system
yet exists and the state’s standards
for indigent defense do not comply
with the ABA’s recommendations
governing appointed counsel.

Nevertheless, courts have found that the vast
majority of this attorney incompetence does not
fall below the lax standards for effective counsel
under Strickland, which requires the defendant
to show both that counsel’s performance was
deﬁcient and that the deﬁcient performance
undermined the reliability of the conviction
or sentence. Therefore, the client continues to
pay for the attorney’s errors, sometimes with
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his or her life. The state, the families of victims, and society as a whole pay the price
as well. Litigation becomes increasingly protracted, complicated, and costly, putting
legitimate convictions at risk, subjecting the victims’ families to continuing uncertainty,
and depriving society of the knowledge that the real perpetrator is behind bars. In short,
the likelihood of error precludes the assurance that the outcome is fair or reliable.
Our recommendations seek to improve this state of affairs in three overlapping ways. First,
we recommend the creation of central, independent authorities to appoint, monitor, train,
and screen capital attorneys, and otherwise ensure the quality of capital representation — at
all stages of litigation. Second, we recommend that each jurisdiction adopt standards for the
appointment of counsel by these authorities, and, additionally, that each jurisdiction adopt
standards ensuring adequate compensation of such counsel, as well as adequate funding for
expert and investigative services. Third, we recommend that the current standard of review
for ineffective assistance be replaced, in capital sentencing, with a more stringent standard
better keyed to the particular requisites of capital representation.

RECOMMENDATION 1: Each State Should Create Independent
Appointing Authorities.
Each state should create or maintain a central, independent appointing authority
whose role is to “recruit, select, train, monitor, support, and assist” attorneys
who represent capital clients.4 The authority should be composed of attorneys
knowledgeable about criminal defense in capital cases, and who will operate
independent of conﬂicts of interest with judges, prosecutors, or any other parties.
This authority should adopt and enforce a set of minimum standards for appointed
counsel at all stages of capital cases, including state or federal post-conviction and
certiorari. An existing statewide public defender ofﬁce or other assigned counsel
program should meet the deﬁnition of a central appointing authority, providing it
implements the proper standards and procedures.

COMMENTARY
This recommendation, similar to recommendations made by the ABA, the National Legal
Aid Defender Association (NLADA), and other groups, is based on the recognition that
each jurisdiction needs a formal, centralized, and reasoned process for ensuring that
every capital defendant receives competent counsel. Without such a process, as numerous
studies have shown, competent representation becomes more a matter of luck than a
constitutional guarantee.
The recommendation provides two approaches to achieving this centralization. In jurisdictions
with a public defender system or other centralized appointing authority, that authority may be
fully adequate, either currently or by adding steps to ensure proper monitoring, training, and
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other assistance. Such training and assistance
should be available to all capital defense
attorneys in the jurisdiction. In jurisdictions
with no public defender system in place,
the recommendation calls for establishing a
central appointing authority. It provides some
ﬂexibility in determining who appoints or sits
on the central appointing authority. However,
the independence of the authority and its
freedom from judicial or prosecutorial conﬂicts
are crucial to ensure that its members can act
without partisanship and in a manner consistent
with the highest professional standards.

EDITOR’S NOTE
Key actors on the national and state
levels have recently recognized the
acute problems with counsel in capital
cases. The Innocence Protection
Act, which encourages states to
enhance training and resources for
capital defense lawyers and provides
for increased DNA testing, became
law in October 2004 as part of the
Justice for All Act. President George
W. Bush, in his 2005 State of the
Union address, declared that capital
cases must be handled more carefully
and that more resources should be
directed to correcting the problem of
inadequate defense lawyers.

Some of the recommendation’s language
is identical to that of the 1990 ABA recommendations, but the ABA recommendations
have been widely ignored. Instead, many
states award capital cases by contract or
appointment, employing explicit or implicit
incentives to these attorneys to keep their
costs low and their hours on the case few. The
attorneys may be chosen based on friendship
with the judge, a desire not to “rock the
boat,” their willingness to work cheaply, their
presence in the halls of the courthouse, or
other factors poorly correlated with zealous
or even competent representation. Many
of them have little knowledge of capital
litigation or even criminal law in general.
Many of them have little experience or skill in
the courtroom. A disproportionate number
of them have records of disciplinary action,
and even disbarment.5 Even the best of these
lawyers are placed in a situation in which
most incentives are skewed toward doing a
cursory job, or even losing — especially in
high proﬁle cases. Establishing independent
appointing authorities to alleviate many
of these problems is a crucial and central
recommendation of this Committee.

In a dramatic statement in his May
2005 State of the Judiciary Address
to the Joint Session of the Louisiana
House and Senate, that state’s
Supreme Court’s Chief Justice, Pascal
F. Calogero, Jr., spoke about his
court’s recent ﬁnding that the state’s
present indigent defense system
is “terribly ﬂawed.” He urged the
legislature to remedy the situation,
saying that until it makes adequate
funds available, “upon motion of the
defendants [in capital cases], the trial
judge may halt the prosecution . . . until
adequate funds become available to
provide for these indigent defendants’
constitutionally protected right to
counsel.” Justice Calogero concluded
that the “opinion does not unfairly put
the courts in the position of siding with
the defense [but] . . . simply recognized
the fact that the courts, as guardians
of a fair and equitable process, must
not let the state take a person’s liberty
without due process.”

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RECOMMENDATION 2: Each Jurisdiction Should Provide Competent
and Adequately Compensated Counsel at All Stages of Capital
Litigation and Provide Adequate Funding for Expert and Investigative
Services.
Every capital defendant should be provided with qualiﬁed and adequately compensated
attorneys at every stage of the capital proceeding, including state and federal postconviction and certiorari. Each jurisdiction should adopt a stringent and uniform set
of qualiﬁcations for capital defense at each stage of the proceedings. Capital attorneys
should be guaranteed adequate compensation for their services, at a level that reﬂects the
“extraordinary responsibilities inherent in death penalty litigation.”6 Such compensation
should be set according to actual time and service performed, and should be sufﬁcient
to ensure that an attorney meeting his or her professional responsibility to provide
competent representation will receive compensation adequate for reasonable overhead,
reasonable litigation expenses, reasonable expenses for expert, investigative, support,
and other services; and a reasonable return.

COMMENTARY
Qualiﬁcations of Counsel

Providing qualiﬁed counsel is perhaps the most important safeguard against the wrongful
conviction, sentencing, and execution of capital defendants. It is also a safeguard far too
often ignored. All jurisdictions should adopt minimum standards for the provision of an
adequate capital defense at every level of litigation. The most crucial stage of any capital
case is trial. Qualiﬁed counsel at this stage would add immeasurably to the effort to keep
the trial “the main event” in the capital process, and to streamline the post-trial appellate
and post-conviction procedures. But even with improved representation at trial, the need
for quality legal representation at post-trial stages will continue to be great, given the
unacceptability of error, the rapid changes in the substantive law, and the possibilities of
newly discovered evidence at later stages.
The standards for qualiﬁed counsel will vary according to the requisites of the particular
stage of proceedings. There is some ﬂexibility as to which minimum standards a jurisdiction
ought to adopt. However, we suggest that minimum standards should, at the least, require
two attorneys on each capital case. We recommend that jurisdictions adopt the ABA or
NLADA standards for appointment of counsel in capital cases. At the trial level, these
include, among other requirements, that (a) the lead attorney have at least ﬁve years of
criminal litigation experience, as well as experience as lead or co-counsel in at least one
capital case; (b) co-counsel have at least three years of criminal litigation experience; (c)
each counsel have signiﬁcant experience in jury trials of serious felony cases; (d) each
attorney have had recent training in death penalty litigation; and (e) each attorney
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have demonstrated commitment and proﬁciency. Similar standards should be met at
the appellate and post-conviction stages, although at these stages the type of relevant
prior experience will vary. The important thing is that, at all stages, a set of stringent and
uniform minimum standards should be adopted, implemented, and enforced.
Compensation of Counsel

A major cause of inadequacy of capital representation is the lack of adequate compensation
for those taking on demanding, time-consuming cases, which, if done correctly, demand
thousands of hours of preparation time. Douglas Vick estimates that a capital case may
take from 500 to 1,200 hours at the trial level alone, and an additional 700 to 1,000
hours for direct appeal of a death sentence, with hundreds of additional hours required
at each successive stage.7 Assuming an hourly wage of $100, he estimates that the cost
of attorney time in a typical capital case, excluding any additional services, would be
about $190,000. Many jurisdictions impose shockingly low maximum hourly rates or
arbitrary fee caps for capital defense.8 Even the most dedicated lawyer will ﬁnd it difﬁcult
to spend the time needed on a capital case under these conditions. As the NLADA notes,
these are “conﬁscatory rates” that impermissibly interfere with the Sixth Amendment
right to counsel.9 Moreover, courts often will not make funds available for reasonable
expert, investigative, support, or other expenses. Factual investigation, including witness
interviews, document review, and forensic (for example, DNA, blood, or ballistics)
testing, is a crucial component of adequate preparation for both trial and sentencing in
capital cases. In addition, the defense’s frequent inability to hire experts on central issues
in a case, such as forensics or psychological background, is another major obstacle to the
fairness of the proceedings, particularly in light of far greater prosecutorial access to such
resources. Attorneys should not be forced to choose whether to spend a severely limited
pool of funds on their own fees or on experts and investigators.
Each jurisdiction should develop standards that avoid arbitrary ceilings or ﬂat payment
rates, and instead take into consideration the number of hours expended plus the effort,
efﬁciency, and skill of capital counsel.10 The hourly rate should reﬂect the extraordinary
responsibilities and commitment required of counsel in death penalty cases.11 Failure to
provide adequate funding and resources is a failure of the system that forces even the
most committed attorneys to provide inadequate assistance. Its consequences should
fall not on the capital defendant, but on the government. One model for imposing such
consequences is that proposed by the ABA: Where the capital defendant was not provided
with qualiﬁed and adequately compensated counsel, several procedural barriers to review
should be held inapplicable.

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RECOMMENDATION 3: The Strickland v. Washington Standard
for Effective Assistance of Counsel at Capital Sentencing Should
be Replaced.
Every state that permits the death penalty should adopt a more demanding standard
to replace the current test for effective assistance of counsel in the capital sentencing
context. Counsel should be required to perform at the level of an attorney reasonably
skilled in the specialized practice of capital representation, be zealously committed
to the capital case, and possess adequate time and resources to prepare.12 Once a
defendant has demonstrated that his or her counsel fell below the minimum standard
of professional competence in death penalty litigation, the burden should shift to the
state to demonstrate that the outcome of the sentencing hearing was not affected by
the attorney’s incompetence. Moreover, there should be a strong presumption in favor
of the attorney’s obligation to offer at least some mitigating evidence.

COMMENTARY
The adoption of a more stringent standard can be accomplished by each state, either
legislatively or judicially, so long as the state court relies on state rather than federal law.13
The current Supreme Court standard for effective assistance of counsel, Strickland v.
Washington, permits “effective but fatal counsel” and requires the defendant to show both
that counsel’s performance was deﬁcient and that the deﬁcient performance undermined
the reliability of the conviction or sentence.14 Randall Coyne and Lyn Entzeroth observe:
Myriad cases in which defendants have actually been executed conﬁrm that
Strickland’s minimal standard for attorney competence in capital cases is a woeful
failure. Demonstrable errors by counsel, though falling short of ineffective
assistance, repeatedly have been shown to have had fatal consequences.15
Strickland is a poorly conceived standard in all criminal cases. It is particularly unfortunate
in capital cases for two reasons. First, the standard is inadequate simply because the
consequences of attorney error at trial are so great in a capital case, and the opportunities
for error so vast. Second, the standard, inadequate as it has been in measuring the
competence of attorneys at trial, has proven especially poorly suited for measuring
competence in the punishment phase of a capital trial. Moreover, the requirement that
the capital defendant prove not only the ineffectiveness of counsel, but also that it caused
the defendant prejudice, is extremely hard to satisfy when the question is whether he or
she would have received a different sentence had counsel done a better job. Given the
unpredictability of a jury’s decision whether to exercise mercy in light of a particular
set of facts, and given the fact that the attorney’s very failure to investigate deprives
the defendant of crucial information, the standard rarely can be met. The harshness of

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Strickland’s prejudice prong means that capital defendants whose counsel was ineffective
even under Strickland’s stringent ineffectiveness prong will nevertheless be executed unless
they can meet the onerous standard of demonstrating a reasonable probability that, if
not for attorney incompetence, they would not have been sentenced to death. Instead of
perpetuating this unfair standard, we should shift the burden to the state. After a ﬁnding
of attorney ineffectiveness, if the state cannot show that the defendant would have been
sentenced to death even with competent counsel, the sentence ought to be reversed and
the defendant re-sentenced.
In case after case, attorneys who failed to present
any mitigation evidence at all, or who have
EDITOR’S NOTE
presented a bare minimum of such evidence,
In Rompilla v. Beard,E1 and Wiggins
were found to have satisﬁed Strickland.16 Yet
v. Smith,E2 the Supreme Court
mitigation evidence is an absolutely essential
overturned two death sentences
part of the punishment phase.17 As capital
because the defense lawyers failed
litigation expert Welsh White has observed,
to investigate and present mitigating
“the failure to present mitigation evidence is a
evidence at sentencing.
virtual invitation to impose the death penalty.”18
The proper development of mitigating evidence
involves a complete construction of the defendant’s social history, including all signiﬁcant
relationships and events. This duty cannot be satisﬁed merely by interviewing the
defendant. Moreover, the utility of offering mitigation evidence cannot be determined
in advance of a thorough investigation. Indeed, White asserts that every capital attorney
he interviewed agreed that “developing the defendant’s social history will always lead to
some mitigating evidence that can be effectively presented at the penalty phase.”19 There
may be the rare case in which an attorney makes an informed decision not to put on any
mitigation evidence, but such a scenario is highly unlikely. Therefore, there should be a
strong presumption in favor of the attorney’s duty to put on some mitigation evidence.

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CHAPTER II:
RESERVING CAPITAL
PUNISHMENT FOR THE MOST
HEINOUS OFFENSES AND MOST
CULPABLE OFFENDERS
SUMMARY
There should be only ﬁve factors rendering a murderer eligible for capital punishment.
Jurisdictions should exclude from death eligibility those cases in which eligibility is
based solely upon felony murder and should not use felony murder as an aggravating
circumstance. Individuals with severe mental disorders should not be eligible for the
death penalty, and states should establish reliable procedures to determine the issue of
mental retardation. (2005 Update.)
To reduce the unacceptably high risk of wrongful execution in certain categories of cases, to
ensure that the death penalty is reserved for the most culpable offenders, and to effectuate
the deterrent and retributive purposes of the death penalty, jurisdictions should limit the
cases eligible for capital punishment, as set forth in Recommendations 5, 6, and 7 below.

RECOMMENDATION 4: Individuals with Mental Retardation, Those
Who Were Under 18 at the Time of the Offense, and Those Convicted of
Felony Murder Should be Excluded from Death Penalty Eligibility.
Jurisdictions should exclude from eligibility for the death penalty those cases
involving persons with mental retardation, persons under the age of eighteen at the
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time of the crimes for which they are convicted, and those convicted of felony murder
who did not kill, intend to kill, or intend that a killing occur.

RECOMMENDATION 5: Death Penalty Eligibility Should be Limited to
Five Factors.

•
•
•

•

The murder of a peace ofﬁcer killed in the performance of his or her ofﬁcial duties
when done to prevent or retaliate for that performance.
The murder of any person (including, but not limited to, inmates, staff, and
visitors) occurring at a correctional facility.
The murder of two or more persons regardless of whether the deaths occurred as
the result of the same act or of several related or unrelated acts, as long as (a) the
deaths were the result of either an intent to kill more than one person, or (b) the
defendant knew the act or acts would cause death or create a strong probability
of death or great bodily harm to the
murdered individuals or others.
EDITOR’S NOTE
The intentional murder of a person
In its original recommendations (now
involving the inﬂiction of torture.
Recommendation 4), the Committee
In this context, torture means the
urged that the death penalty for
intentional and depraved inﬂiction of
juveniles and individuals with mental
extreme physical pain for a prolonged
retardation be prohibited. In 2002,
period of time prior to the victim’s
in Atkins v. Virginia, the United States
death; depraved means that the
Supreme Court barred the death
defendant relished the inﬂiction of
penalty for individuals with mental
extreme physical pain upon the victim,
retardation. In 2005, in Roper v.
evidencing debasement or perversion,
Simmons, it did so for juveniles.
or that the defendant evidenced a sense
Updated recommendations and
of pleasure in the inﬂiction of extreme
accompanying commentary, set
physical pain.
forth below, now address the
The murder by a person who is under
procedures
jurisdictions
should
investigation for, or who has been
establish to adjudicate cases of
charged with or has been convicted
mental retardation, the exclusion
of, a crime that would be a felony; or
of individuals with severe mental
the murder of anyone involved in the
disorders from death eligibility, and a
broader felony murder exclusion. The
investigation, prosecution, or defense of
original commentary may be found at
that crime, including, but not limited to,
www.constitutionproject.org.
witnesses, jurors, judges, prosecutors,
and investigators. (2005 Update.)

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COMMENTARY
Overview to Recommendation 5: The Constitutional Requirement and Function of Aggravating
Circumstances

Current United States Supreme Court case law provides that no statute may
constitutionally mandate imposition of the death penalty for all ﬁrst-degree or similar
murderers.1 Rather, the jury must make an individualized, case-by-case determination
of whether a particular defendant is “death-worthy.”2 However, the jury’s discretion
must be guided by reasonably clear criteria.3 The jury must consider both the nature
and circumstances of the crime and the character and background of the offender,4
and there must be some rational criteria for separating the death-worthy from all other
ﬁrst-degree murderers.5
Typically, the presence of “aggravating circumstances” guides the jury’s decision and
limits the pool of convicted murders eligible for death.6 Most commonly, as ﬁrst
articulated in the American Law Institute’s Model Penal Code, jurors must ﬁnd the
existence of at least one statutory aggravating factor to render an offender death eligible.7
Some jurisdictions permit jurors to consider non-statutory aggravators as well — those
circumstances of the crime and of the offender’s character that, though not listed as
aggravators in any statute, are nevertheless logically relevant to identifying the “worst
of the worst” murderers.8
All jurisdictions must, however, permit jurors to weigh aggravating against “mitigating”
circumstances in deciding who among the death eligible is also death-worthy, thus meriting
execution.9 The United States Supreme Court has held that jurors must have largely free
reign to consider as a mitigator “any aspect of a defendant’s character or record and any
of the circumstances of the offense that the defendant proffers as a basis for a sentence
less than death.”10 Statutes typically allow defendants to offer evidence about mitigating
circumstances set forth in a statute and any unlisted, non-statutory mitigators relevant
to the defendant’s character or record or to the case circumstances.11 Although some
jurisdictions in theory depart from identifying aggravating and mitigating circumstances,
in fact the approach of those jurisdictions is the functional equivalent of the aggravating/
mitigating circumstances approach.12 This Committee, in Recommendation 26 of this
Report, has also recommended that the jury be instructed in appropriate cases that it may
consider as a mitigating circumstance any “lingering doubt” about the defendant’s guilt,
even if that doubt does not rise to the level of a reasonable doubt.
Aggravating circumstances must therefore serve to “narrow the class of persons eligible
for the death penalty and [to] reasonably justify the imposition of a more severe sentence
on the defendant compared to others found guilty of murder.”13 The latter means that the
purpose of punishment is rationally promoted by the choice to impose death.14

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Overall, aggravating circumstances should be designed to give meaningful guidance to
juries.15 The Committee agrees with Justice Brennan’s dissent in Lowenfeld v. Phelps,16 in
which he complained that the Court had in practice departed from that goal:
Narrowing the class of death eligible offenders is not “an end in itself ” any
more than aggravating circumstances are. Rather, as our cases have emphasized
consistently, the narrowing requirement is meant to channel the discretion of
the sentencer. It forces the capital sentencing jury to approach its task in a
structured, step-by-step way, ﬁrst determining whether all the circumstances
justify its imposition. The only conceivable reason for making narrowing
a constitutional requirement is its function in structuring sentencing
deliberations. By permitting the removal of the narrowing function from the
sentencing process altogether, the Court reduces it to a mechanical formality
entirely unrelated to the choice between life and death.17
The Trend Toward Increasingly Ineffective Eligibility Criteria

The Supreme Court’s 1972 decision in Furman v. Georgia invalidated the death penalty as
arbitrary and capricious as it was then practiced in the United States. In response, many
states moved to create a list of aggravators that narrowed the death eligible pool in a
modest and rational way.18 Aggravators in a particular jurisdiction were usually relatively
few in number. Most aggravators were drawn from the Model Penal Code, “having the
imprimatur of the elite of the bar and of academic circles” and aiming at least to “sound
lawlike” — a “list of rules and procedures,” articulating relatively objective circumstances,
such as that the defendant simultaneously committed another murder.19
Legislatures seemed to take the narrowing mandates of the Supreme Court seriously.20
Those aggravators “not aimed primarily at establishing legal respectability” often reﬂected
a primary concern with preserving “the integrity of the public function of the states against
violence aimed at disrupting them,” for example, by killing police ofﬁcers or corrections
employees.21 The most problematic of the post-Furman aggravators, however, used
sweeping language, such as that a killing be “heinous, atrocious, and cruel,” an ambiguous
phrase that is “nothing less than an invitation for the jury to unleash its private feelings
about the crime or criminal . . . .”22 But achieving legal clarity and respectability and
protecting the institutions of law enforcement was the ﬁrst priority.23
Since the Lowenfeld decision in 1988, however, the Court has shown a willingness to
validate a wider range of aggravating factors so long as they display a modicum of clarity.24
Although the Court has occasionally found such clarity lacking, it has, for example, upheld
Idaho’s use of the aggravating circumstance of exhibiting “utter disregard for human life”
where the Idaho courts had “narrowly” construed the statute’s application as limited to
“cold-blooded, pitiless slayers.”25
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Although the Court still maintains that each statutory aggravating circumstance must
provide a “principled basis” for distinguishing those meriting capital punishment from
those who do not, in practice the “Court has never held an aggravating circumstance to
be invalid on the substantive ground that it failed to select ‘the worst criminals or the
criminals who commit the worst crimes.’”26 Empirical studies reveal that 80-90 percent
of the defendants who were eligible for death before Furman temporarily invalidated the
death penalty would still be eligible for capital punishment today.27 Some states, such as
California and Illinois,28 have had as many as 20 aggravating circumstances, leading the
Illinois Commission on Capital Punishment (appointed by former Governor George Ryan)
to observe that “[s]ome have suggested that due to the large number of eligibility factors,
nearly every ﬁrst-degree murder in Illinois could be eligible for the death penalty under one
theory or another.”29 The result has been what some commentators call the “deregulation
of death.”30 Furthermore, in such an era, the Court mandates no serious limitations on
how a jury is to weigh aggravators against mitigators.31 Explained one commentator, “The
aggravators that the legislature writes may be the door into the inner house of death but,
after Lowenfeld, they do not proscribe what goes on inside.”32 This gap must be closed by a
narrow and principled approach to selecting aggravating circumstances.
A Principled Basis for Selecting Aggravating Circumstances

The era of deregulation has simply failed to achieve the goal originally articulated by the
Court of narrowing death eligibility in a principled manner. The pre-Lowenfeld era did
a better job than does the current regime. However, that regime had its own ﬂaws, most
notably that many of the aggravators focused on harms, other than the killing itself, that
were not necessarily the deliberate choice of the offender or were only impliedly related
to the offender’s character, and that too frequently stressed “behavioral facts over mental
facts.”33 The effect was that the law often failed to distinguish those “who deliberately
do harm and those who fall into it.”34 Thus, killing an additional person or inﬂicting
suffering beyond that necessary for the killing, even where neither outcome was desired,
might establish death eligibility.35
This focus on harm and behavior divorced from perversity of mental state reﬂects the
aspiration for more objective criteria but cuts sentencing off from its roots in a morality
that grades evil based on desire.36 As Oliver Wendell Holmes explained, even a dog knows
the difference between being tripped over and being kicked.37 Moreover, most premeditated
crimes occur between people who know each other, so a shift away from desire is biased
toward stranger crimes.38 Since African Americans are disproportionately involved in
stranger crimes, this potentially worsens the disproportionate racial application of the
death penalty.39
The original kinds of aggravators also reﬂected a shift from previous concerns with
individualized justice and rehabilitation to a new regime. Aggravators now focused
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not on individuals, but rather on categories of offenders (for example, imprisoned
convicts who kill). They focused not on reintegrating offenders into the community
but rather on managing efﬁciently the risks created by presumed classes of permanent
criminals, and not on community priorities like reducing the general level of crime but
rather on making the criminal justice system a processor of offenders.40 Because a list
of aggravators for jurors to consider seemed more abstract, jurors arguably were more
inclined to distance themselves from the moral choice of enormous import with which
they were faced.41
Rather than stemming only from sound penological policy, such as a broad and traditional
sense of the public good, political imperatives appear to be reﬂected in the new generation
of aggravators after Lowenfeld. We have seen legislators add aggravating circumstances
to address the most high-proﬁle risk of the day, such as a rise in car-jackings, drive-by
shootings, and gang-related activities.42 These are all, of course, reprehensible crimes, but
legislatures have made them into aggravators without any evidence that injury rates were
higher than for other crimes of violence or that these crimes were more widespread than
other serious offenses.43 Nor were there ﬁndings that adding these aggravators would
improve public safety.44 The worst of these crimes were in most cases already death eligible
under other criteria, likely making these new criteria over-inclusive.45
An additional concern with this new generation of aggravators is that these crimes are
often associated with the inner-city poor and fear of a random and violent death at their
hands.46 As one commentator explains:
Like the ﬁrst generation of felony murder aggravators, the new generation is
likely to encourage juries to accept the association between crimes and deathwarranting dangerousness or depravity without independent moral judgment.
But the new ones may be even more effective in this regard. Robbery and
kidnapping are already easy to stretch around the facts of quite ordinary
homicides. Aggravating factors for drive-by shootings, assault weapons, or
gang activity target crimes that are really media hybrids of traditional serious
crimes and certain stereotyped features, usually linked to minority populations.
Lacking an objective foundation, they are likely to be even more plastic. For
example, at a time when “gang” is widely used to deﬁne social life among the
inner-city minority youth population, an aggravator for homicide in a gang
activity context will be easy to apply to minority defendants.47
Yet another concern is aggravators that appear to be symbolic recognition of the worth
of various, often politically powerful, groups. In Louisiana, for example, aggravators
include murders done during “satanic rituals,” apparently because of religious groups’
fear of growing Satanism.48 Elsewhere, emergency medical technicians, the elderly, the
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young, probation ofﬁcers, pregnant women, school teachers, and cattle brand inspectors
have been added to lists of aggravators.49 While the Committee does not comment on
the relative merits of adding any of these groups, it is clear that these expansions depart
from the original narrow purpose of aggravators to limit capital punishment to the worst
crimes and worst offenders. They also increase the number of death eligible crimes far
beyond what is warranted for an effective capital punishment system.
The ﬂaws in the ﬁrst wave of aggravating circumstance legislation and the later experience
under “death deregulation” suggest a set of principles that should guide reform in this area:

•
•
•
•
•
•

There should be fewer aggravating circumstances than is currently the case, and
they should partly be drawn from the best features of the ﬁrst wave of post-Furman
death eligibility legislation;
Persons with a demonstrated capacity to murder again should be incapacitated to
protect public safety;
Aggravators must be as clear as possible to guide and structure jury decision-making;
Aggravators that protect the justice system’s performance are justiﬁed to enable
law enforcement personnel to do their jobs effectively and to validate the public’s
respect for the law;
In addition to the above circumstances, only the fewest, most heinous and shocking
ﬁrst-degree murders, for which any lesser response would minimize the magnitude
of the offense, should be considered aggravators; and
Aggravators should seek to avoid racial or class bias.

These criteria implicate public safety and reinforce the most central of public norms, as
opposed to protecting against private pain or enforcing deterrence. There is little support
for the view that the death penalty deters crime, and this Committee is unconvinced by
the few, ﬂawed studies to the contrary.50 This Committee concludes that these principles
support the ﬁve eligibility criteria set forth in this recommendation.
The Recommended Limits on Eligibility for Capital Punishment

•
•

Murders of Peace Ofﬁcers
Murders of Any Person at a Correctional Institution

Police and other peace ofﬁcers are at the forefront of criminal investigation and law
enforcement. Their jobs are also dangerous ones. To do their jobs well, they must be
assured that society greatly values their safety. Equally as important is the public harm
when violence is directed at ofﬁcers of the law. Assaults on such ofﬁcers are assaults on
the eyes and ears of the justice system. The highest expression of moral condemnation is
needed where the authority of the law is so directly challenged.

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Correctional ofﬁcers are also exposed daily to danger as they enforce the law, especially
because inmates are both a dangerous and a vulnerable population. In the view of some
commentators, for those violent inmates already serving lengthy prison terms or a life
sentence who pose a risk to other inmates, the death penalty may be the only viable
punishment. At the same time, however, the difﬁculty of reliably proving guilt in many
prison murder cases may make many of them appropriate cases for the “lingering doubt”
instruction discussed in Recommendation 26 of this report.51

•

Multiple Murders

A multiple murderer has by deﬁnition inﬂicted a greater social harm than has someone
who has murdered one person in the same kind of incident. Although the loss to society
from any unlawful killing is great, the death of many — as, for example, in the Oklahoma
City bombing52 — surely merits special condemnation. There are, of course, a wide range
of murders between the loss of a single victim and the killing of masses of people. This
Committee concludes that the death of two or more victims is a sufﬁciently greater evil
than the death of one individual, and that a jury should have the option, given other casespeciﬁc circumstances, to consider capital punishment.
A repeat ﬁrst-degree murderer’s new killing raises similar concerns, and also supports a belief
that he or she will kill again. Society’s future safety thus weighs heavily in the balance.
However, this death eligibility factor is tightly linked to traditional justiﬁcations for
heightened criminal responsibility. It is not enough that multiple victims die. The
defendant must have desired that result, or have known that he or she would cause death
or create a strong probability of death or great bodily harm to more than one individual.
This embrace of a serious mental state requirement maintains the link between the
potential imposition of the death penalty and the goal of limiting it to the worst crimes
and offenders.

•

Murders Involving Torture

Moral evil is undeserved harm done by one person against another, such as a ﬂeeing
felon’s knowingly running down a child who might delay the felon’s escape.53 “Evil” is
not necessarily a religious concept but also routinely plays a role in secular justiﬁcations
for criminal responsibility.54 It is a term that captures the ordinary person’s outrage when
grave wrongs are done. It need not mean that a person is entirely, irredeemably evil;
the term can condemn the nature of his or her acts or character aspects that are most
reprehensible. Evil comes in different forms and degrees and, in a complex world, actions
and persons are often likely to embody aspects of both good and evil.55 But there is an

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extreme kind of evil — one perhaps misleadingly called “pure evil”— that demarcates the
zone of gravest wrongdoing.56
If capital punishment is truly to be reserved for the worst of the worst, we can offer society
signiﬁcant conﬁdence that it is achieving that goal by limiting death eligibility as much as
possible to cases involving pure evil. Executing someone for any lesser offense undermines
this notion of evil. Ordinarily, only the truly horriﬁc killing should merit death. In this
way, we can promote the rational grading of moral responsibility required to avoid the
arbitrary and capricious imposition of death.
Pure evil means deriving pleasure from another’s pain.57 The purely evil killer is a sadist
for whom pain is more than a special and total kind of domination. Severe pain can cause
the sufferer to prefer death to life.58 Even when this is not so, pain lessens life’s value.
The sadist therefore succeeds in inverting the victim’s deepest values. This is a profound
and heady power over another.59 It debases another human being completely, affronts
the very value of life itself, and fundamentally challenges the idea of equal respect for all
human beings that is the cornerstone of American constitutionalism.60 Nor, as deﬁned
by this Committee, is “torture” a vague term, for it requires inﬂiction of extreme physical
pain, and doing so for a prolonged period of time while relishing the victim’s suffering or
taking pleasure in the victim’s debasement. This sort of extreme, unusual conduct is not
beyond a jury’s ability to identify.

•

Murders That Affect the Judicial System

This eligibility factor is justiﬁed by concerns analogous to those involved in murdering
a peace ofﬁcer. Efforts to obstruct the operation of the criminal justice system threaten
the system’s security and legitimacy and merit the strongest of responses. The Illinois
Commission, in embracing a similar aggravator, explained this point concisely:
The intention of the recommendation is . . . [that of] making a murder
of anyone connected with the system, whether as a witness, juror, judge,
prosecutor, defense attorney or investigator, eligible for the death penalty.
This adjustment reﬂects an analysis of the eligibility factors from other
states and advances the goal of insuring the integrity of the judicial system.
Murders which seek to obstruct justice or impede the investigation or
prosecution of a crime affect the underlying integrity of the system in a
serious way. As important, for a defendant or suspect facing the prospect of
a prison term for much or all of his life, a death sentence will often represent
the only signiﬁcant enhancement in punishment beyond that which the
offender already faces.61

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RECOMMENDATION 6: Felony Murder Should be Excluded as the
Basis for Death Penalty Eligibility.
The ﬁve eligibility factors in Recommendation 5, which are intended to be an
exhaustive list of the only factors that may render a murderer eligible for capital
punishment, do not include felony murder as a basis for imposing the death penalty.
To ensure that the death penalty is reserved for the most culpable offenders and
to make the imposition of the death penalty more proportional, jurisdictions that
nevertheless choose to go beyond these ﬁve eligibility factors should still exclude from
death eligibility those cases in which eligibility is based solely upon felony murder.
Any jurisdiction that chooses to retain felony murder as a death penalty eligibility
criterion should not permit using felony murder as an aggravating circumstance.
(2005 Update.)

COMMENTARY
Felony Murder as an Eligibility Factor

This commentary has focused largely on explaining why the Committee chose to include
the ﬁve eligibility criteria noted above and only those criteria. The widespread use of the
felony murder doctrine in capital cases, and the special risks that the doctrine creates for
achieving a fair system of capital punishment, however, require a separate discussion of why
the Committee chose to exclude felony murder as an eligibility factor. Moreover, the ﬂaws
in that doctrine require a special caution against its use as an eligibility criterion for capital
murder in any jurisdictions that might, despite the recommendations in this Report, choose
to have more than the ﬁve eligibility criteria that this Committee recommends.
Used as a means of establishing guilt on a murder charge, the felony murder doctrine relieves
the prosecution of its burden of proving that the defendant had a culpable mental state
with respect to death. Rephrased, felony murder is a strict liability doctrine. Although the
state must prove that the defendant had the mental state required for the underlying felony,
no culpable mental state as to death — no showing of an intentional, reckless, or even
negligent killing — is required. Using a felony murder theory, the prosecution may achieve
a murder conviction if it establishes only (a) that a death occurred and (b) that the death
occurred during the course of a felony in which the defendant participated. Although some
jurisdictions impose some additional technical limitations that somewhat limit the felony
murder rule’s application, the doctrine remains one of strict liability primarily requiring
proof of only these two elements. In many jurisdictions, these elements eliminate even the
necessity of the prosecution’s proving that the defendant caused the death.
The felony murder theory has been much criticized because it circumvents mens rea (state
of mind) and causation requirements. Nevertheless, it remains an extensively used method
for obtaining murder convictions. According to a recent article, it has been abolished by
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statute or judicial decision in only three states and remains in force in the others.62 This
Committee takes no position on the wisdom of retaining the felony murder rule as one
means for obtaining a murder conviction.
However, the Committee does condemn using the strict liability felony murder doctrine
as an eligibility criterion for the death penalty. The death penalty must be reserved for the
“worst of the worst,” the most culpable of offenders, such as cold-blooded executioners
or multiple murderers. As discussed above, limiting the death penalty better promotes the
purpose of proportional punishment while reducing the risks of error.
Death penalty eligibility criteria must thus narrow the range of ﬁrst-degree murder
convictions that are potentially subject to the death penalty. The felony murder rule
undermines this goal. As one commentator explains:
The felony murder rule disregards the normal rules of criminal culpability
and provides homicide liability equally for both the deliberate rapist/killer
and the robber whose victim dies of a heart attack, as well as for the robber’s
accomplice who is absent from the scene of the crime.63
Indeed, in some jurisdictions, the felony murder rule can make the defendant guilty of
murder when a law enforcement ofﬁcer or victim mistakenly kills a third person or an
accomplice during the felony, or even when the defendant, while ﬂeeing the felony, is
involved in a trafﬁc accident that results in death. The rule applies even when the felon
extracts a promise from a co-felon to hurt no one, but the co-felon shoots the victim
anyway. The rule equates the felon for whom a killing was unforeseeable with the coldblooded murderer.64
Scott Turow, a member of this Committee and of the Illinois Commission on Capital
Punishment, likewise explains the irrationality of using the felony murder rule as a death
penalty eligibility criterion:
[O]ne of the original eligibility factors, felony-murder, has ballooned . . . .
Prosecutors love felony-murder eligibility. For one thing, it provides an avenue
to a capital sentence for a violent criminal with a long record whose crime
might not otherwise qualify. It allows prosecutors to sentence defendants,
rather than offenses. Beyond that, felony-murder is often easier to prove than
other qualiﬁcation factors. The evidence that a defendant was committing an
armed robbery is far more clear-cut than whether he was attempting to torture
his victim with a pistol-whipping. Thus, a full 60 percent of the prisoners on
Illinois’ death row had arrived there thanks to felony-murder eligibility, albeit
often in the company of more particular criteria.
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Yet felony-murder always struck me as a logical mess. Why should a murder in
the course of a rape be death-eligible, if the same defendant could rape a woman
one day and murder her for laughs the next without facing death? Does timing
really make the crime any graver? More important, felony-murder by its nature
aims at crimes that started out with another purpose. Aren’t long-contemplated
murders more aggravated than murders committed on impulse . . . ?65
Although there is wide jurisdictional variation concerning the elements of the
felony murder doctrine, its scope, and when it may serve as a death penalty
eligibility criterion, at its core the doctrine remains one of strict liability that
sweeps its net too widely. One study found that felony murder indictments were
40 percent of all ﬁrst-degree (potentially death eligible) murder indictments
nationwide.66 According to this study, “[t]he case of felony murderers is
[therefore] just too large to serve as a way to limit meaningfully the reach of
the death penalty.”67
Moreover, the application of the felony murder rule in capital cases likely has a racially
disparate impact. In a study of Dade County, Florida, for example, although three-quarters
of all ﬁrst-degree murder indictments were intra-racial, 45 percent of felony murders were
inter-racial, almost all involving white victims and black defendants.68 Eighty-four percent
of all Dade County’s indictments against black defendants for murdering whites were under
the felony murder rule.69 Similar results have been obtained in other statistical studies, and
some studies go further, demonstrating that a “black defendant who killed a white victim
during a felony is the defendant most likely to receive the death penalty.”70
The felony murder rule also promotes other irrational results. Someone who purposely
kills in anger, but has not committed an additional, underlying felony, might not face
the death penalty, while another who had no intention whatsoever to kill but does so
accidentally during a felony, may nevertheless face death. Yet the former killing is surely
more egregious than the latter.
The United States Supreme Court has held that the death penalty may constitutionally
be imposed on felony murderers so long as two caveats are met: (a) the defendant was
a major participant in the felony and (b) the defendant manifested at least “reckless
indifference to human life.”71 However, this case-by-case analysis permits execution
based on vague, highly subjective judgments about culpability, again creating a danger
of overbroad, random, arbitrary, and capricious application of the death penalty. The
large and ever-growing number of felonies that may be the predicate for a felony murder
prosecution punishable by death creates a “statutory breadth [that] vests prosecutors
with great discretion about whether to seek the death penalty, and experience seems to
teach that uncabined discretion, exercised by . . . [many] different State’s Attorneys will
inevitably lead to unfair results.”72
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For reasons like these, this Committee originally recommended excluding from death
eligibility “those convicted of felony murder who did not kill, intend to kill, or intend
that a killing occur.” Upon reﬂection, however, the Committee concludes that even this
limitation is insufﬁcient. It is likely, according to leading commentators, that most felony
murderers do intentionally kill.73 A pickpocket might, in fear and panic, kill a resisting
victim in the heat of passion — a reprehensible killing but one traditionally deemed
second-degree murder (absent the felony murder rule) and thus not death eligible.
The panicked killing is simply not as culpable as the cold-blooded, premeditated kind.
Moreover, under the Committee’s original recommendation, even certain unintentional
killers — such as those who are extremely reckless toward life while committing a felony
— may be death eligible because they, and not an accomplice, performed the act causing
death — that is, “committed the killing” themselves. Yet such recklessness on its own
(apart from the felony murder rule) is likewise traditionally understood as insufﬁciently
culpable to merit death. The Illinois Commission made a similar point:
Under this eligibility factor [killing “in the course of ” a felony], all that is
required for death eligibility is that the defendant personally participate (or
be legally accountable for) conduct which he knows will cause death or which
he should know will cause death, and that the activity is committed in the
course of one of the enumerated felonies. This means that a defendant who
robs a store, and who commits a single murder during the course of a robbery,
can be sentenced to death even if it is a ﬁrst offense and there is no substantial
criminal record. While such a defendant should be subject to a serious
punishment for the taking of a life, this type of offense differs substantially
from a situation where the defendant has killed multiple times. Although
making judgments which differentiate between murders may be difﬁcult, it
must be done to insure that the capital sentencing process sufﬁciently narrows
the class of those eligible for the death penalty.74
Some killings during a felony may properly be death eligible, but other eligibility criteria
are more likely to winnow the deserving wheat from the undeserving chaff than does the
blunt instrument of the felony murder doctrine. The Committee’s earlier recommendation
— a recommendation that might fairly be read as rejecting death eligibility only for
certain types of felony murders — is thus too narrow in its scope. The Committee’s more
broadly stated commentary to its original recommendation more accurately captures the
Committee’s current position condemning all felony murder convictions as the sole basis
for death eligibility:
[The felony murder rule] does not provide reliable guidance for the
constitutionally mandated effort to reserve the death penalty for the most
heinous crimes . . . . Such guidance is best provided by a categorical rule
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excluding [all] felony murder defendants from eligibility for capital punishment
[on that ground alone]. Anything less than categorical exclusion provides too
great an opportunity for the unconstitutionally overbroad, random, arbitrary,
and capricious application of the death penalty.75
Felony Murder as an Aggravating Factor (the “Double Bump-Up”)

The Committee recognizes that some jurisdictions may be reluctant to impose a
categorical bar on death eligibility based solely upon felony murder. Such reluctance
might stem from a concern that categorical rules can fail adequately to anticipate unusual
cases, a hesitancy to change traditional procedures too abruptly, or the simple limitations
of practical politics. The Committee believes that such concerns are unwarranted. The
unusual felony murder killing that merits a death sentence would necessarily be one
where another eligibility criterion is available. Strict liability standing alone — the core of
the felony murder rule — never justiﬁes a death sentence. Moreover, “traditions” that are
blatantly unfair or reﬂect outmoded thinking about the purposes of punishment should
not survive. A longstanding wrong is a wrong nonetheless. Finally, research suggests that
community members who understand the vices and inefﬁciencies of the felony murder
rule in this context will accept death eligibility limitations so that only the truly guilty,
who are also the most heinous of offenders, are punished.76
Yet, should some jurisdictions disagree with this position, it is important to acknowledge
that there is an alternative option that would still signiﬁcantly improve current law. Not
everyone who is death eligible must be sentenced to death. To the contrary, most states
understand their constitutional mandate, as expressed in United States Supreme Court
decisions, as specifying for the fact ﬁnder, whether a jury or the court, what aggravating
circumstances (at least one of which must be present) make the death eligible also deathworthy.77 Even then, the fact ﬁnder must decide whether mitigating circumstances,
primarily the personal characteristics and history of the offender, warrant leniency, even
in the face of the aggravating factors.78 As one commentator has noted, “death eligibility
is a relatively coarse-grained analysis designed to ﬁlter out the least heinous cases.”79
Death eligibility therefore means only that “a death sentence is a permissible option” if
death-worthiness is found.80 But only if “the sentencer, after hearing all aggravating and
mitigating evidence, imposes a death sentence, [has] the defendant...been found deathworthy.”81 The unforeseen escalation of a felony into a killing is one central example of
when death eligibility should not fairly mean a death sentence.82 Many jurisdictions,
however, use felony murder both as an eligibility criterion and as an aggravating factor.
In effect, the felony murder doctrine provides a “double bump-up” — ﬁrst, bumping
a non-death eligible case up to the level of death eligibility, and second, bumping up a
death eligible case to one for which a death sentence may actually be imposed. The jury
is not required to sentence a felony murderer to death, but it may choose to do so.

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The double bump-up’s conﬂating of death eligibility and death aggravation undermines
the constitutional goal of limiting imposition of the death penalty to a narrow class of
the most culpable offenders. No other death eligibility criterion automatically authorizes
death imposition. Eligibility gets a felon past the death house door, but the switch
should not be pulled without proof of an independent aggravating factor. Imposing on
a strict liability doctrine — felony murder — the weight of both death eligibility and an
aggravating circumstance is to ask it to carry a burden of establishing extreme culpability
that it cannot and should not bear.

RECOMMENDATION 7: Persons with Severe Mental Disorders
Should be Excluded from Death Penalty Eligibility. Jurisdictions
Should Establish Procedures to Determine Mental Retardation.
Persons with severe mental disorders whose capacity to appreciate the nature,
consequences, or wrongfulness of their conduct; to exercise rational judgment in
relation to the conduct; or to conform their conduct to the requirements of law;
was signiﬁcantly impaired at the time of the offense should be excluded from death
eligibility. (2005 Update.)

COMMENTARY
Persons with Mental Retardation

In Atkins v. Virginia, the Supreme Court found sufﬁcient evidence of a national consensus
against the execution of persons with mental retardation to justify a categorical rule
prohibiting such executions.83 Approximately two and one-half percent of the U.S.
population has mental retardation, and there is no evidence that persons with mental
retardation commit crimes more frequently than do those in the general population.
Yet these individuals are believed to make up a substantial minority of those on death
row.84 Since the death penalty was reinstated in 1976, an estimated thirty-ﬁve people
with mental retardation have been executed in the United States.85 The Supreme Court
having now held that such executions violate the Eighth Amendment’s Cruel and Unusual
Punishments Clause, it remains for every jurisdiction that employs the death penalty to
ensure that no person with mental retardation will be mistakenly subjected to it.
The death penalty is meant to be reserved for the most morally culpable offenders.
Culpability is deﬁned as personal responsibility or moral guilt. The overwhelming
number of persons with mental retardation do not fall into the “most morally culpable”
category, due to their impairment. Persons with mental retardation suffer from substantial
disabilities affecting moral reasoning, cognitive functioning, control of impulsivity, and
understanding of the basic relationship between cause and effect. These disabilities severely
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of a death sentence. These concerns are not likely to be given due consideration by juries in
mitigation for a variety of reasons, including inadequate representation, lack of resources
for expert testimony on the effects of mental retardation, jury fear of dangerousness, and
jury misunderstanding of the true meaning of a life sentence.
The risk of executing defendants with mental retardation who do not possess the required
level of moral culpability is especially high when the evidence of mental retardation is
commingled with evidence of aggravating circumstances, and is only one factor taken
into account in reaching a discretionary sentencing judgment. In light of these and other
concerns, the Supreme Court has concluded that state statutes must exclude all defendants
with mental retardation from eligibility for the death penalty to help ensure that all who
are sentenced to death deserve such a sentence.86
Although Atkins bars death sentences for people with mental retardation, the Supreme
Court declined to deﬁne mental retardation or to specify the procedures (e.g., the burden
of proof) required for making these determinations. State statutes vary signiﬁcantly in
both respects. It is imperative that the states establish procedures that can assure a reliable
adjudication on the issue of mental retardation, and the best way to do that is to require
a pretrial determination by the judge.87
Persons with Severe Mental Disorders

As noted above, the U.S. Supreme Court’s decision in Atkins v. Virginia reﬂects a concern
that the ordinary process of capital adjudication does not prevent persons with severely
diminished responsibility due to mental retardation from being sentenced to death and
thereby being punished in a manner grossly disproportionate to their culpability.88 Capital
sentencing practice now presents an unacceptable risk of executing defendants with
mental retardation who lack a morally sufﬁcient level of culpability to deserve the ultimate
punishment. The remedy adopted by the Supreme Court in Atkins was to preclude death
sentences for defendants diagnosed with mental retardation. This categorical remedy
was based on the judgment that virtually all defendants with mental retardation lack the
morally requisite capacities for capital punishment.
A systematic risk of disproportionate punishment also arises in cases involving defendants
with severe mental illness. Even though defendants with mental illness are entitled to
introduce mental health evidence in mitigation of sentence, commentators on capital
sentencing have often observed that juries tend to devalue undisputed and strong evidence
of diminished responsibility in the face of strong evidence in aggravation.89 Indeed, such
evidence is often a double-edged sword, tending to show both impaired capacity as well
as future dangerousness.90
As the Supreme Court observed in Zant v. Stephens, treating evidence of mental illness as
an aggravating factor would violate the due process clause:
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[In this case, Georgia did not attach] the “aggravating” label to . . . conduct
that actually should militate in favor of a lesser penalty, such as perhaps the
defendant’s mental illness. [citation omitted91] If the aggravating circumstance
at issue in this case had been invalid for reasons such as these, due process of
law would require that the jury’s decision to impose death be set aside.92
Similarly, one of the problems with the Texas capital sentencing statute that has been
before the Court repeatedly is that juries were instructed for three decades to consider the
aggravating force of the evidence (in proving future dangerousness) without being told to
consider its potentially mitigating weight.93
Strong evidence of diminished responsibility due to mental illness should preclude a death
sentence and should not be weighed against evidence in aggravation. The core rationale for
precluding death sentences for defendants with mental retardation is equally applicable
to defendants with severe mental illness. However, the purely diagnostic exclusion utilized
in Atkins is not a plausible approach in dealing with mental illness. Even among persons
with major mental disorders, such as schizophrenia, symptoms vary widely in severity, as
does the impact of the disorder on the person’s behavior. Thus, a mere diagnosis of a major
mental disorder does not identify a narrow class of cases in which a death sentence would
virtually always be disproportionate to the offenders’ culpability. Instead, the category
must be further narrowed to include only those defendants whose severe mental disorders
are characterized by signiﬁcant impairments of responsibility-related capacities.
The task of deﬁning criteria of diminished responsibility must start with the criteria for the
insanity defense — the goal is to specify a degree of impairment that signiﬁcantly reduces
responsibility even though it does not foreclose conviction and punishment. At a minimum,
the existence of psychotic symptoms at the time of the offense (i.e., delusions, hallucinations,
or other signiﬁcant impairments of the defendant’s perception or understanding of reality or
capacity for rational judgment) should preclude a death sentence because any offender who
was so grossly disturbed lacked the requisite level of responsibility, even if the precise criteria
required for a ﬁnding of legal insanity were not met. Beyond the clear-cut cases of psychotic
symptoms, the most widely accepted formula for deﬁning diminished responsibility is
found in the capital sentencing provisions in the Model Penal Code. Section 210.6(4)(g)
includes among mitigating circumstances the following:
At the time of the murder, the capacity of the defendant to appreciate the criminality
[wrongfulness] of his conduct or to conform his conduct to the requirements of
law was impaired as a result of mental disease or defect or intoxication.
This provision, which appears in the capital sentencing laws of a great majority of death
penalty states, was designed to identify conditions of strong mitigation that should
be balanced against aggravating circumstances. Because the task at hand is to identify
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an exclusionary criterion, the best approach is to tighten and narrow the Model Penal
Code language to require a signiﬁcant impairment of responsibility-related capacities
resulting from severe mental disorder. Impairments associated with other disorders or
with intoxication should not be given preclusive force, although they should continue to
be taken into account in determining the suitability of a death sentence.
The proposed exclusionary provision can be accompanied by a sentence making it explicit
that the class of eligible disorders does not include disorders manifested primarily by repeated
criminal conduct or the acute effects of voluntary intoxication. It would then read:
Defendants shall not be executed or sentenced to death if, at the time of the
offense, they had a severe mental disorder or disability that signiﬁcantly
impaired their capacity to appreciate the nature, consequences, or wrongfulness
of their conduct, to exercise rational judgment in relation to the conduct, or
to conform their conduct to the requirements of law. A disorder manifested
primarily by repeated criminal conduct or attributable solely to the acute
effects of voluntary use of alcohol or other drugs does not, standing alone,
constitute a mental disorder or disability for purposes of this provision.94
Conclusion to Chapter II

The death penalty for individuals and cases outside the categories described above creates
an unacceptably high likelihood of singling out those who do not deserve this most serious
and ﬁnal punishment. At the same time, allowing executions in these cases does little to
advance the goals of capital punishment.
As the Supreme Court has repeatedly emphasized since it permitted the reinstatement of
capital punishment in Gregg v. Georgia, statutory schemes regulating the death penalty,
in order to be constitutional, must guide the states so that the penalty is not meted out
in an arbitrary and capricious manner, and so that it is reserved for the most heinous
and serious crimes. The Committee’s recommended limits on death penalty eligibility
are necessary because the usual approach, which permits the jury to consider defendants’
arguments in mitigation, fails to adequately address the serious risks, for certain categories
of defendants, of error and arbitrary and capricious results.
Because these risks cannot be adequately addressed once these defendants are charged
with a capital crime, guidance must come, in the ﬁrst instance, in the form of statutory
rules meaningfully narrowing the class of death eligible offenders. For persons with
mental retardation or severe mental disorders, as with those who were juveniles at the time
the crimes were committed, the integrity of the system is threatened by the defendants’
difﬁculties in navigating the system and assisting in their own defense. Moreover, asking
the jury to weigh the concerns set forth above against the severity of the defendant’s crime
and other factors does not sufﬁciently address the problem of arbitrariness.
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The Committee’s list of eligibility factors is short, offers structured guidelines to a
jury, and avoids the ambiguities and doctrines (such as felony murder, as discussed
above) most likely to reﬂect racial bias or worsen racial disparities. We recommend
that legislators limit aggravators entirely to this list of factors to avoid the “signiﬁcant
burdens upon the criminal justice system” that have resulted “as prosecutors and courts
[have] struggle[d] to fairly apply the ever evolving list of factors making a defendant
eligible for the death penalty. The resulting capital prosecutions have over-taxed the
resources of the criminal justice system. More important, the current system reﬂects a
degree of arbitrariness”95 and disproportion in who gets prosecuted for capital murder.
As a consequence, the system suffers from otherwise avoidable inaccuracy, multiple
appeals, and delays. Such a system works for no one — not the public, not the victims
and their families, and not the defendants.
The members of this Committee hope that by eliminating the felony murder rule as a
death eligibility criterion, excluding those with severe mental disorders from death
eligibility, and adopting only the ﬁve eligibility factors set forth above, jurisdictions will
restore a sense of rationality to the capital punishment system.
To the extent that the Committee’s recommended limits on death penalty eligibility have
not already been addressed by the Supreme Court, they are best addressed in advance,
by statute. These recommendations are not intended to bar imposition of any sentence
except death, and they contemplate that every state will offer the sentencing option of life
imprisonment without parole.

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CHAPTER III:
EXPANDING AND EXPLAINING
LIFE WITHOUT PAROLE (LWOP)
SUMMARY
8.

Life without the possibility of parole should be a sentencing option in all death
penalty cases in every jurisdiction that imposes capital punishment.

RECOMMENDATION 8: Ensure the Availability of a Life Sentence
without Parole.
In all capital cases, the sentencer should be provided with the option of a life sentence
without the possibility of parole.

COMMENTARY
At sentencing in a capital case, whether the sentence is to be determined by the jury or the
court, the option of a sentence of life in prison without the possibility of parole (LWOP)
should be available. Although a minority of jurisdictions permit the court to decide the
sentence, this recommendation will focus on the jury as the sentencing authority. The
points made should be generally applicable to judicial sentencing, although the empirical
research has involved jurors.

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Many legislatures have recognized the merits of providing this appropriate sentencing
option. Over the last decade, most jurisdictions have authorized a sentence of LWOP in
capital cases. Indeed, today only three of the thirty-eight states that authorize the death
penalty fail to provide the LWOP option. It should be available in all states and for all
offenses for which a death sentence may be imposed.
Because it acts on behalf of the community
and makes the difﬁcult judgment about the
appropriate sentence to satisfy the goals of
retribution, incapacitation, and deterrence,
the jury should have the LWOP option
available. Without that option, a sentence of
death by the jury may be the consequence
of a “false and forced choice” that is both an
irrational and an erroneous response to its
judgment about what justice demands and
what constitutes an appropriate sentence
in the case. The jury’s reasoned judgment
may be that death is not appropriate, but,
absent the LWOP option, it may be the best
of several bad alternatives.1

EDITOR’S NOTE
Since 2001, when Mandatory Justice
was ﬁrst published, the number of
states that authorize the death penalty
and do not provide the LWOP option
has dropped to one — only New Mexico
continues to impose the death penalty
without the LWOP option.E1
Texas has just enacted a bill that gives
juries in death penalty cases the option of
sentencing a defendant to life without the
possibility of parole. The bill prohibits the
option of life with parole.E2

Empirical evidence demonstrates that the absence of the LWOP option produces
pernicious results because juries fear that the availability of parole will subvert any
non-death sentence they recommend. In the absence of the LWOP option, a desire to
incapacitate the defendant can result in a death sentence to protect society from future
potential dangerousness upon release, particularly for youthful defendants, even though
LWOP would have better ﬁt the jury’s reasoned judgment as to the correct sentence in
the case. Indeed, when incapacitation is the jury’s goal, not having the option of LWOP
pushes the jury into a decision to sentence the defendant to death by default because the
sentence that the jury ﬁnds appropriate cannot be imposed.
While the impact of the absence of LWOP is less stark when retribution is the issue,
jurors’ judgments about appropriate retribution may also require imprisonment for the
perpetrator’s entire life. Here, too, the absence of LWOP requires that they impose a death
sentence that, in their judgment, would otherwise be unnecessary and inappropriate.
Artiﬁcially increasing the number of death sentences should not be a goal of any statutory
system, but requiring jurors to make this “false and forced choice” can have that effect. It
effectively takes from the jury the opportunity to speak accurately and effectively as the
conscience of the community and improperly tilts the balance in favor of a sentence that
the jury may believe to be excessive.
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Imposing death sentences is not an independent goal of our system, and coercing juries
into imposing such a sentence should not be the design of any legislative scheme. Instead,
appropriate sentences that meet the facts of the case and the demands of society, as
determined by jury or judge, are the goal. In this light, it is notable that when Indiana,
Georgia, and Virginia introduced LWOP during the past decade, the number of death
sentences imposed declined sharply in each state.2
LWOP will also give the survivors ﬁnality at an earlier point than will a death sentence.
Sentences of death are overturned with substantial frequency, and even when afﬁrmed
on appeal, they are not carried out for some years. Any reasonably foreseeable change in
death penalty law, no matter how restrictive it is, will in all likelihood not eliminate delays
and reversals because of errors in the imposition of the death sentence. By contrast, except
in the relatively rare situation that the conviction itself is reversed, LWOP sentences are
virtually immune from attack on appeal, and therefore become ﬁnal with greater certainty
and speed than do sentences of death.
In enacting legislation that permits imposition of LWOP, the legislature should be
attentive to a large body of empirical research that reveals societal skepticism that
murderers, even capital murderers, will in fact serve long prison sentences. Actual
sentencing practices demonstrate that such skepticism is unfounded, but we must
confront this attitude, which seeps into juror expectations. To the extent possible,
legislatures should remove all possible avenues for early release from the LWOP
alternative. The executive’s authority to pardon or commute sentences is generally
constitutionally based, and typically may not be eliminated by legislation. However, all
other possible avenues of early release should be eliminated so that juror skepticism can
be reduced to the greatest extent possible.
Even more important, because juries operate under deeply ingrained misapprehensions
that the time served on any non-death sentence will be relatively short, they should be
provided with authoritative data on the time served by death eligible murderers not
sentenced to death, and by persons sentenced to life without parole. (Such data, when
provided to the jury, should help to dispel pernicious and powerful myths surrounding
the true length of a life in prison sentence.) Speaking to and correcting these attitudes is
at the base of our separate “truth in sentencing” recommendation.

RECOMMENDATION 9: The Court Should Explain the Meaning of a
Life Sentence without Parole (Truth in Sentencing).
At the sentencing phase of any capital case in which the jury has a role in determining
the sentence imposed on the defendant, the court shall inform the jury of the minimum
length of time those convicted of murder must serve before being eligible for parole.

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However, the trial court should not make statements or give instructions suggesting
that the jury’s verdict will or may be reviewed or reconsidered by anyone else, or that
any sentence it imposes will or may be overturned or commuted.

COMMENTARY
By far one of the most powerful inﬂuences on a capital sentencing jury’s decision about
whether the defendant should be sentenced to death or imprisonment is its perception
of whether, if imprisonment is chosen, the defendant will be released from prison, and
if so, how soon. Empirical data demonstrate that, in the absence of information on this
issue, juries exhibit signiﬁcant confusion about whether a sentence of life imprisonment
without parole really means that the defendant will never be released. This confusion
operates against the defendant. In both “life without parole” situations and all other
sentencing situations, jurors signiﬁcantly underestimate the amount of time defendants
will remain in prison. Their mistaken beliefs about how long defendants will remain in
prison lead them to impose death sentences in many cases in which they would opt for
life sentences if they were better informed.3
Not only does confusion about sentencing options tend to increase the number of death
sentences, it also exacerbates an already existing tilt toward imposition of death. Empirical
evidence documents that jurors at the beginning of the penalty phase, and before hearing
any penalty phase evidence at all, show a signiﬁcant imbalance in favor of imposing a
death sentence.4
Capital defendants must be permitted to counteract misconceptions that further
exacerbate the tilt toward imposing death. In Eddings v. Oklahoma, the Supreme Court
noted that the Eighth Amendment gives more latitude to the capital defendant than to the
government, in that it permits the defendant to introduce unlimited mitigation evidence
so that a jury can choose to be merciful for any reason or no reason at all.5
The jury’s concern with the issue of sentencing options is entirely appropriate under
current law. The Supreme Court has approved the jury’s consideration, during the penalty
phase, of the defendant’s future dangerousness to society.6 In addition, the question of the
length or nature of a defendant’s sentence is highly relevant to the jury’s consideration
of which punishment provides sufﬁcient retribution under the particular circumstances
before it.7 In Simmons v. South Carolina, the Supreme Court recognized that a jury that
incorrectly believed that a defendant could be released on parole if not executed might
premise its sentencing decision on a false choice.8 The majority opinion addressed this
problem only in the limited circumstances in which the prosecutor argued for a death
sentence based on future dangerousness, holding that the due process clause required the
jury to be informed of a defendant’s parole ineligibility in such circumstances.9

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In circumstances not covered by Simmons (those in which the prosecutor does not
explicitly rest an argument on the defendant’s future dangerousness), some states continue
to bar jury instructions regarding parole in capital cases.10 Even those that permit such
instructions do not mandate them, and generally do not ensure that juries are provided
with full and understandable information. Yet jurors are greatly concerned about and
inﬂuenced by parole issues even in cases in which the prosecutor does not explicitly argue
the defendant’s dangerousness. Without accurate information on the issue, jurors simply
tend to make unsupported and inaccurate assumptions, often based on misleading media
portrayals or other unreliable sources.
There is no good reason to deny jurors accurate information on this germane and crucial
issue. In the past, refusals to tell juries about parole have often been justiﬁed as a way
of protecting defendants (on the assumption that juries may give greater sentences if
they know about the possibility of parole). In the capital context, ignorance of parole
not only generally does not protect defendants, but it also increases their chances of
being sentenced to death based on a false choice. Many states provide such information
in non-capital cases, and there is no evidence that the task is unduly difﬁcult. Capital
juries have a constitutional duty to make a reasoned moral decision on whether a death
sentence is appropriate; this decision must be unencumbered by ignorance and supported
by information sufﬁcient and relevant for reliable and rational decision making.11 Full
disclosure on the available parole options will help them discharge this duty. However,
statements that tend to relieve jurors of their sense of responsibility for their verdict will
instead deﬂect the jury from its duty.12
Similarly, statements involving speculative or highly unlikely sentencing outcomes,
such as grants of clemency, will defeat the purpose of properly and accurately
educating the jury.

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CHAPTER IV:
SAFEGUARDING RACIAL FAIRNESS
SUMMARY
10.

All jurisdictions that impose the death penalty should create mechanisms to help
ensure that the death penalty is not imposed in a racially discriminatory manner.

RECOMMENDATION 10: Jurisdictions Should Implement
Comprehensive Programs to Safeguard Racial Fairness.
Each jurisdiction should undertake a comprehensive program to help ensure that
racial discrimination plays no role in its capital punishment system, and to thereby
enhance public conﬁdence in the system. Because these issues are so complex and
difﬁcult, two approaches are appropriate. One very important component — perhaps
the most important — is the rigorous gathering of data on the operation of the capital
punishment system and the role of race in it. A second component is to bring members
of all races into every level of the decision-making process.

COMMENTARY
While the precise facts are in dispute, what cannot be disputed is that racial disparities
and the potential for racial discrimination hang over our nation’s capital punishment
system and raise questions about its fairness. On the one hand, we have the 1990 report
of the independent General Accounting Ofﬁce that consistently found racial disparities
in study after study of the death penalty in various jurisdictions. On the other hand,
we have the Supreme Court’s decision in McCleskey v. Kemp1 that found statistics from
a study conducted by Professor David Baldus (used to demonstrate the operation of
racial discrimination in Georgia’s system) insufﬁcient to prove a constitutional claim

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of intentional discrimination against McCleskey. Yet the Baldus study did show that
statewide racial disparities in sentencing could not plausibly be explained by any of more
than 200 legally relevant variables, and that systemic racial bias cannot be addressed
adequately on a case-by-case basis. To some, the certainty of racial discrimination is the
most obvious reason that our nation’s capital punishment system is inherently ﬂawed,
indeed, illegitimate. To others, racial discrimination is either an unproven feature of the
capital punishment system or a feature that could be corrected by the odd remedy, that no
one supports, of executing more defendants who killed African Americans.
We believe the problem is both serious and obvious from the point of view of the public
and its growing lack of conﬁdence in the fairness of the death penalty system, as indicated
by numerous recent polls. For example, a September 2000 poll showed that 64 percent
of Americans supported a moratorium on executions until the issue of the fairness of
capital punishment could be resolved, while a June 2000 poll indicated that 80 percent of
the public believed that an innocent person has been executed in the United States in the
past ﬁve years.2 If executions are to be part of our justice system, they must be undertaken
in an even-handed fashion. Moreover, the public must be assured that race is never the
deciding factor in who will live and who will die.
While we believe the problem is of unmistakable importance, we acknowledge that a
recommendation that sets forth a single remedy to this complex problem is not in view.
Instead, we recommend vigilance and experimentation. Speciﬁcally, we recommend
two general approaches to guide this experimentation in combating the possibility of
racial discrimination. Our federal system, with its
often noted “laboratory” aspects, holds promise for
EDITOR’S NOTE
developing and conﬁrming effective solutions.
Updated polling results and
statistics regarding public opinion about the death penalty are
available at the Death Penalty
Information Center’s website,
www.deathpenaltyinfo.org.

The ﬁrst, and we believe the most important, of
these remedial steps is the rigorous gathering of
data on the operation of the jurisdiction’s capital
punishment system and the role or potential role of
racial discrimination in it. The country, led by the
United States Department of Justice and a number
of state governments, is engaged in a similar process
with regard to the racial proﬁling of motorists. We do not wish to dictate what data each
jurisdiction should gather; many of the required elements of data-gathering are clear.
How one gets at and ferrets out racial discrimination takes skill, judgment, and knowhow. Each jurisdiction should assemble its best team of experts, to include prosecutors,
defense counsel, and neutral experts. The goal is the best and most complete data possible,
and, ultimately, the elimination of the specter of possible racial discrimination. Thus,
breadth of expertise and neutrality should be guides to developing research teams and
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their protocols. The work of such teams in New York and New Jersey are promising guides
to how such data-gathering systems should be developed.
For those untutored in criminal justice studies, the call for the gathering of data may
seem unnecessary. However, issues of race often are not obvious and are outside the
record. The race of a motorist stopped on a highway is not part of the police report if no
arrest was made. The race of the jurors dismissed by prosecutors and defense counsel
are not shown on the record unless a speciﬁc effort is made. The race of defendants
whose cases are chosen or not chosen for capital punishment throughout a state and
across jurisdictions does not pop up on a computer screen upon a simple request for
information. All of this information will exist only because of a call that it be collected,
and, in most situations, it will be unavailable unless speciﬁc steps are taken for its
collection. We cannot eliminate racial discrimination unless we have detailed data,
particularly in the modern day when it most likely operates at an unconscious rather
than a purposeful level.
Once the data are gathered, jurisdictions should carefully consider and act on the results. If
the data show no evidence of racial disparities, then the public can place greater conﬁdence
in the fairness and integrity of the jurisdiction’s death penalty mechanisms. Conversely, if
the data support a conclusion or demonstrate a high likelihood that racial discrimination
is affecting the operation of the death penalty system, the legislature should consider
enacting appropriate remedial measures.3
Our second general recommendation is that jurisdictions seek to ensure that racial
minorities are part of every decision-making process within the criminal justice system.
For example, efforts should be redoubled, through vigorously enforcing Batson v.
Kentucky4 and through effective application of fair cross-section requirements to ensure
that members of all races are part of grand juries (where grand juries exist) that indict
and petit juries that decide guilt and punishment. Racially mixed defense teams are likely
to appreciate aspects of the case that single-race teams will not, as are racially mixed
prosecutorial teams. Those who decide which cases are to be prosecuted capitally should be
racially diverse. Finally, although this cure is generally beyond the scope of any particular
entity, a racially diverse judiciary is an important component of the public’s perception of
racial fairness in the death penalty system.
The process of safeguarding racial fairness in the application of the death penalty and
assuring the public that the system operates without racial discrimination is admittedly
very challenging. We do not claim that our proposals will accomplish these critical
tasks, but we believe they are a reasonable place to begin. Moreover, we believe that it
is critical to address the issues of racial neutrality, fairness, and public conﬁdence that
racial discrimination plays no role in the decisions on who should live and who should
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die through capital punishment. These issues are among the most important confronting
the death penalty system, and any set of meaningful reform efforts must confront these
questions as forthrightly as possible.5

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CHAPTER V:
ENSURING SYSTEMS FOR
PROPORTIONALITY REVIEW
SUMMARY
11.

RECOMMENDATION 11: States Should Implement Procedures to
Ensure Proportionate Death Sentences.
In order to (a) ensure that the death penalty is being administered in a rational, nonarbitrary, and even-handed manner, (b) provide a check on broad prosecutorial
discretion, and (c) prevent discrimination from playing a role in the capital decision
making process, every state should adopt procedures for ensuring that death sentences
are meted out in a proportionate manner.

COMMENTARY
The central concerns that inspired the Supreme Court to embark, in Furman v. Georgia,1
on its effort to regulate capital cases were concerns about the arbitrary and unequal
application of the death penalty, arising in part from vesting broad discretion in decision
makers without providing sufﬁcient guidelines. In Gregg v. Georgia,2 the Court upheld an
amended Georgia death penalty statute in large part because it provided for mandatory
proportionality review. That is, it provided that the Supreme Court of Georgia should
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compare each death sentence with sentences imposed on similarly situated defendants to
ensure that the sentence of death in a particular case is not disproportionate. It emphasized
the positive effect an appellate review containing a mandatory proportionality check
would have on the faulty system, ﬁnding that it “serves as a check against the random or
arbitrary imposition of the death penalty and substantially eliminates the possibility that
a person will be sentenced to die by the action of an aberrant jury.” Unfortunately, the
Court, in its 1984 decision in Pulley v. Harris,3 backed away from requiring proportionality
review under the Eighth Amendment (although it emphasized that capital sentencing
systems are still constitutionally required to provide checks on arbitrariness), and most
states have ceased to perform it. We are now faced with state systems that vary vastly from
one another, but most of which pose almost as great a risk of arbitrary, capricious, and
discriminatory application as three decades ago, when the Court called for reform in
Furman v. Georgia. Adopting some form of proportionality review would go a long way
toward addressing this problem, which goes to the heart of the death penalty’s fairness
and efﬁcacy.
Proposing a system to ensure proportional sentencing is fraught with problems, as this
Committee well recognizes. Such proposals may raise concerns about impeding the
exercise of prosecutorial discretion, or about intruding on state prerogatives to shape and
enforce local law enforcement priorities and values. The more basic problem is simply in
ﬁnding the difﬁcult balance between treating like cases alike and also treating each case
individually. These are two often conﬂicting goals of the Supreme Court’s death penalty
jurisprudence. Even in the face of these problems, the goal of eradicating arbitrary death
sentencing is critically important to the constitutionality and the basic fairness of the
death penalty, and should be undertaken in every state with a death penalty.
There are a number of possible ways to institute proportionality review, several of them
currently in use in various states.

•
•

One method is for the state supreme court to perform a review that compares the
case to other cases in which the death penalty was imposed. For example, the New
Jersey Supreme Court addresses the question of whether the penalty is unacceptable
in a particular case because it is disproportionate to the punishment imposed on
others convicted of the same crime.
Another way, which some commentators, including the National Center for State
Courts, have argued is more effective, is for the state supreme court to compare
each case, not just with other cases in which the death penalty has been imposed,
but with the entire pool of death eligible cases, including those in which the death
penalty was not sought. New York, for example, has directed its highest court to
develop a comprehensive database of information for all cases involving indictment
for ﬁrst-degree murder and has directed the clerk of the trial court to ﬁll out a capital
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•

case data report in each ﬁrst-degree murder case, to facilitate such comparisons.
Comparison of each case to the pool of all death eligible cases is also the method
employed in Georgia and Washington.
A third approach, advocated by Ninth Circuit Court of Appeals Judge Alex Kozinski,
among others, would be for states to make a concerted effort to narrow by statute the
universe of death eligible cases to those that are especially heinous, premeditated, and
unmitigated. Too often, it has been politically expedient for states to keep adding to
the list of categories of cases in which the death penalty may be imposed, arguably
well beyond those sorts of cases for which the penalty was originally intended. The
wide availability of a death-sentencing option leaves too much opportunity for
arbitrariness in charging and sentencing.

States may well develop additional approaches, suited to their own particular priorities,
circumstances, and resources. What is crucial is that each state develop an effective
method, designed to address and, in the best of circumstances, eradicate arbitrary and
discriminatory imposition of death sentences.4

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CHAPTER VI:
PROTECTING AGAINST
WRONGFUL CONVICTIONS
AND SENTENCES
SUMMARY
EXCULPATORY AND NEWLY DISCOVERED EVIDENCE; CREDIBLE CLAIMS OF INNOCENCE

12.

13.

14.

All jurisdictions that impose capital punishment should ensure adequate mechanisms
for introducing newly discovered evidence that would more likely than not produce
a different outcome at trial or that would undermine conﬁdence that the sentence
is reliable, even though the defense would otherwise be prevented from introducing
the evidence because of procedural barriers.

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15.

LEARNING FROM WRONGFUL CONVICTIONS AND SENTENCES AND AVOIDING FUTURE
WRONGFUL CONVICTIONS AND SENTENCES

16.

All jurisdictions should (a) review capital cases in which defendants were
exonerated, to identify the causes of the error and to correct systemic ﬂaws, (b)
adequately fund Capital Case Innocence Projects, (c) establish a Capital Case Early
Warning Coordinating Council to identify systemic ﬂaws in an effort to avert
mistaken convictions before they happen, and (d) fund efforts to increase sensitivity
to innocence issues in capital cases among students, the police, judges, and the
American public. (2005 Update.)

DNA EVIDENCE

17.

DNA evidence should be preserved and it should be tested and introduced in cases
where it may help to establish that an execution would be unjust.

18.

19.

FORENSIC LABORATORIES

20.

The testimony of a prosecution forensic examiner not associated with an accredited
forensics laboratory should be excluded from evidence. (2005 Update.)

21.

Laboratories should be accredited only when they meet stringent scientiﬁc standards.
(2005 Update.)

22.

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VIDEOTAPING AND RECORDING OF CUSTODIAL INTERROGATIONS

23.

EXCULPATORY AND NEWLY DISCOVERED EVIDENCE;
CREDIBLE CLAIMS OF INNOCENCE
RECOMMENDATION 12: The Presentation of Exculpatory DNA
Evidence Should be Allowed Notwithstanding Procedural Bars.
If exculpatory evidence is produced by DNA testing, notwithstanding other procedural
bars or time limitations, legislation should provide that the evidence may be presented
at a hearing to determine whether the conviction or sentence was wrongful. If the
conviction or sentence is shown to be erroneous, the legislation should require that
the conviction or sentence be vacated.

RECOMMENDATION 13: Prosecutors Should Consent to Vacating
a Conviction and/or Sentence When DNA Testing Excludes
the Defendant or When the Result is Inconsistent with the
Government’s Prosecution Theory.
Where post-conviction DNA testing is performed and excludes the defendant, or
otherwise yields a result that is inconsistent with the theory under which he or she was
prosecuted, convicted, or sentenced, prosecutors should promptly and readily consent
to vacate the conviction and/or sentence. In such cases, prosecutors should neither
threaten to retry nor commence retrial proceedings against the defendant, unless,
notwithstanding the exculpatory DNA test results, there remains highly credible
evidence of the defendant’s guilt beyond a reasonable doubt. (2005 Update.)

RECOMMENDATION 14: Procedural Barriers to the Introduction of
Newly Discovered Exculpatory Evidence Should be Lifted.
State and federal courts should ensure that every capital defendant is provided an
adequate mechanism for introducing newly discovered evidence that would otherwise
be procedurally barred, where it would more likely than not produce a different outcome
at trial, or where it would undermine conﬁdence in the reliability of the sentence.
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RECOMMENDATION 15: Post-Conviction Review in Cases of Credible
Claims of Innocence Should be Provided.
Post-conviction relief should be available to review the cases of all capital defendants
who establish a credible claim of innocence, even after all traditional appellate and
post-conviction avenues have been exhausted and regardless of whether there is any
other legal bar to the claim of factual error. (2005 Update.)

COMMENTARY (RECOMMENDATIONS 12-15)
Overview to Recommendations 12-15

The criminal justice system should take note of and learn an appropriate level of humility
from the large number of cases where innocence has been proven. Criminal trials and
the ensuing convictions have unmistakably been shown to be fallible, even when our
criminal justice system operates in good faith and apparent good order. Innocence and
unjust conviction are real possibilities, and, with due regard to the interest of ﬁnality,
the system should be open to additional demonstrations of its errors when those errors
stem from the most basic denials of justice — substantive errors in the conviction and
sentencing of defendants, including errors in cases that, unless corrected, would have
resulted in wrongfully taking a human
being’s life. In plain English, current law
EDITOR’S NOTE
permits a defendant who is innocent of
Dramatic advances in the ability to test
a crime or unworthy of a death sentence
biological evidence, even since Mandatory
to be convicted and sentenced to death,
Justice was ﬁrst issued in 2001, underlie the
with no opportunity to introduce newly
merging of the Committee’s original and new
discovered evidence that could change
recommendations regarding restrictions
the verdict in the case.1
on the courts’ ability to consider newly
discovered or newly developed evidence
of a wrongful conviction or sentence. The
inability to introduce DNA evidence has
prompted several bills in state legislatures
and in Congress to address this problem.
It is important to understand, however, that
DNA evidence is only one type of newly
discovered evidence that can undermine
the reliability of a capital verdict. Thus, while
Recommendations 12 and 13 address DNA
evidence, Recommendations 14 and 15
are directed to non-biological evidence that
supports a claim of innocence or a wrongful
conviction or sentence.

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Some commentators have argued that
the law has been developing in exactly
the wrong direction, encouraging the
proliferation of procedural arguments
but failing to provide adequate means
of raising the central questions of
wrongful conviction and sentence, and
thus of the ultimate fairness and justice
of the outcome.2
Ironically, the increasing technicality
of habeas corpus and other avenues
for reviewing a death sentence has not
made it any easier to address the central
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question our justice system should ask in such cases: whether the defendant was wrongly
convicted or wrongly sentenced to death. Finding a forum in which to raise a claim of
innocence based on newly discovered evidence is often difﬁcult or impossible.3 Nor does
federal habeas corpus provide a reliable forum for defendants who were unable to raise
their claims in state court. Such claims are very difﬁcult to raise unless coupled with an
independent claim of constitutional error.
The increasingly convoluted, technical, and time-consuming process of appealing a death
sentence understandably concerns members of the public, lawyers, and scholars alike. The
experience with DNA has further demonstrated the inadequacy of our legal procedures
for dealing properly with newly developed evidence of innocence. The public’s awareness
of this defect in our current procedures has only been heightened by the growing use of
DNA evidence to exonerate death row inmates, the recent series of exonerations of over
a dozen death row inmates in Illinois, and rules like Virginia’s “21-day rule,” which until
recently barred introduction of evidence discovered 21 days or more after the ﬁnal court
decision in a criminal case.4
In its 2005-2006 Term, the Supreme Court may address these concerns. In House v. Bell,5
the Court will consider whether Mr. House’s new DNA evidence meets the standard
required by current law: whether it is more likely than not that no reasonable juror would
have convicted him if the evidence had been available at trial. The Court will also consider
what standard is required to establish a claim of actual innocence.6
Eliminating Procedural Bars

Even under the best of circumstances, new and exculpatory evidence may come to light
late in the process. In the Rolando Cruz case in Illinois, for example, it took years before
it became clear that another man had confessed to the murder for which Cruz was on
death row, and that investigators had perjured themselves when claiming that Cruz
himself had confessed.7 Confessions by the actual perpetrator, other physical evidence,
new eyewitnesses, and recantations by existing eyewitnesses are just some of the types of
evidence that can materialize late in the process, despite the due diligence of the defense.
Ordinary rules regarding time limitations on introduction of newly discovered evidence
and for the treatment of evidence showing a wrongful conviction or death sentence are
also inadequate to deal with evidence of innocence based on DNA testing. This new type
of evidence is based on analysis or re-analysis of evidence that has long been known to
exist. Current law does not readily allow, long after trial, admissions of new discoveries
of exculpatory evidence based on the development of new scientiﬁc tests. It also does not
easily accommodate showings of innocence unless the failure to make such proof at trial
was the result of some procedural restriction. Existing law is perhaps attuned to the fear
that human witnesses can invent new stories and that their lies are difﬁcult to detect or
to distinguish from long-delayed disclosures of the truth. A new scientiﬁc examination of
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existing evidence that can be conclusive is highly unusual, if not entirely unprecedented,
in modern law. Not only must the law permit the introduction of new DNA evidence
showing innocence, but it must also authorize the court to order a new trial or new
sentencing if the defendant shows that the conviction or sentence was erroneous.
It is crucial for each capital defendant to have the opportunity to introduce relevant newly
discovered evidence bearing on his or her guilt or sentence. Jurisdictions may certainly
impose a requirement that the evidence be introduced within a speciﬁed time period
after it is discovered, as well as require a showing that it could not have been discovered
earlier with due diligence. However, statutes of limitations should not bar introduction
of such evidence, whenever it is discovered, if the evidence would more likely than not
change the verdict or if it would undermine conﬁdence in the reliability of the sentence.
The “more likely than not” standard for introduction of evidence bearing on the verdict
strikes an appropriate balance between the interests in preserving the ﬁnality of the verdict
and in ensuring that convictions are accurate and just. The “undermine conﬁdence in
the reliability of the sentence” standard for introduction of evidence bearing on the
capital sentence is identical to the standard employed by Strickland v. Washington,8 for
determining prejudice arising from ineffective assistance of counsel. It recognizes that
due to the many complex variables that affect capital sentencing, it would be unworkable
to require a defendant to demonstrate that newly discovered evidence, however relevant
and exculpatory, would be likely to change a capital sentence. As current practice under
these standards has shown, they are likely to permit introduction of otherwise timebarred evidence only rarely, when the probative value of the evidence clearly outweighs
the interest in ﬁnality.
To be effective, statutes must create clear exceptions within existing procedural frameworks
for such evidence. The statutes must permit the introduction of the new evidence despite
otherwise disqualifying time limitations and other procedural bars. Speciﬁcally, such a
proceeding should not be considered as a petition under 28 U.S.C. §§ 2254-55, or under
the Anti-Terrorism and Effective Death Penalty Act. Considering it as such a petition
would raise the problem that, ordinarily, successor petitions are barred from being
considered, or, if the petition were allowed despite being considered a successor petition,
would create the potential problem of fostering new exceptions to the general rule barring
such petitions.
Each state has a different set of rules and procedures regarding time limits for
introducing new evidence. General reforms should be enacted to expand time
limitations to permit introduction of evidence of innocence, and to authorize a new
trial and a new sentencing hearing, where the evidence establishes that the conviction
or death sentence was erroneous.

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LEARNING FROM WRONGFUL CONVICTIONS AND
SENTENCES AND AVOIDING FUTURE WRONGFUL
CONVICTIONS AND SENTENCES
RECOMMENDATION 16: Procedures for Systemic Review of
Exonerations and for Avoiding Future Errors Should be Established.

•
•
•
•

Jurisdictions should provide mechanisms for the review of capital cases in which
defendants were exonerated, for the purpose of identifying the causes of the error
and for correcting systemic ﬂaws affecting the accuracy, fairness, and integrity of
the capital punishment system.
Jurisdictions should adequately fund the creation (where they do not exist) and
operation of Capital Case Innocence Projects.
Each jurisdiction should establish a Capital Case Early Warning Coordinating
Council to identify on an ongoing basis systemic ﬂaws that, once corrected,
should help in an effort to avert mistaken convictions before they happen.
Jurisdictions should also adequately fund efforts to increase sensitivity to
innocence issues in capital cases in high schools, colleges, law schools, police
academies, judicial training programs, and among the broader American public.
(2005 Update.)

COMMENTARY
Overview to Recommendation 16

A panoply of constitutional protections is available to those accused of a crime,
including protections against compelled self-incrimination, ineffective assistance
of counsel, and other fundamentally unfair procedures.9 The judiciary is charged
with safeguarding these rights both at and before trial.10 Nevertheless, a significant
number of mistaken convictions of the innocent has recently been documented.11
Furthermore, empirical research suggests that the causes of these errors were systemic
ones, rather than unusual circumstances.12
Even the revelation of these errors, however, has not radically changed judicial and other
criminal justice system practices. Additionally, it is reasonable to believe that the judiciary
— which is best equipped for case-by-case adjudication — is ill-equipped to tackle systemic
reform on its own. At the same time, procedures are needed to aid the courts in bringing
systemic insights and new scientiﬁc research to bear in achieving accuracy in individual
cases and in correcting error. Accordingly, as several other common law countries have
recognized,13 some extrajudicial mechanism is needed to press for constantly improving
future procedures while offering fair redress to those unjustly convicted today. Although
adjudication of individual claims must ultimately be made by the courts, or by chief
executives through their pardon or clemency authority, administrative and other solutions
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are needed to better identify individual case errors while simultaneously building a better
criminal justice system to come.
The Nature of the Wrongful Convictions Problem

Americans’ conﬁdence in the accuracy of their criminal justice system has recently been
shaken as a “continuing stream of high-proﬁle cases of wrongful conviction ﬂoods the
newspapers.”14 DNA technology’s rise has accounted for a signiﬁcant number of these
exonerations. As of October 2000, there had been 76 DNA exonerations in the United
States, 54 of which happened in just the preceding four years. That number had risen to
142 by February of 2004 and 159 by July of 2005.15 Fourteen of these DNA exonerations
were in capital cases. 116 death row inmates in total were exonerated by July 2005.16 Yet
biological evidence is available in only a small number of cases, suggesting a potentially
much larger number of mistakes. In a criminal justice system as large as ours — with 2.2
million arrests in the United States for index crimes alone (essentially street crimes and
certain thefts) in the year 2000 — an error rate of even one half of one percent translates
into 7,500 wrongful convictions for index crimes each year.17 Moreover, for each mistake,
a wrongdoer remains free to victimize the community further. As law professors Barry
Scheck and Peter Neufeld have recounted in the DNA context:
All wrongly convicted people take the lash of punishment for someone else’s
crime; that is the very deﬁnition of their predicament. Far too often, they are
surrogates for serial criminals and killers, as in California, where Kevin Green
carried the weight for a crime by Gerald Parker, who for twenty years stood
unprosecuted for ﬁve murders. In Oklahoma, Robert Miller was condemned
to die for murdering and raping two elderly women before DNA testing put
a man named Ronnie Lott in their houses, as well as in the homes of several
other women who survived his rapes . . . .
Even if a pattern of crimes can’t be tagged to a known criminal, prompt testing
will prevent the lengthy detention of innocent suspects and immediately put
the police back to the task of ﬁnding the real perpetrator.18
The problem of wrongful convictions has become so signiﬁcant that it has received
tremendous recent attention in television shows, novels, and news magazines.19
Committee member and best-selling author Scott Turow’s latest book, Reversible Errors,
explores an inmate apparently in just such a position, ensnared in a deeply ﬂawed justice
system. A successful play, The Exonerated, recounts the true tales of innocent individuals
who spent years battling for their lives on death row. National news magazines, such as
Time and Newsweek, have run extensive stories about the causes of wrongful convictions,
stories prompted by new evidence calling into question the reliability of the convictions

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of several young men — some of whom spent more than a decade in prison — for the
brutal rape of a woman in New York City in the infamous “Central Park Jogger” case.20
That case prompted similar stories on national nightly news programs and television
news magazines, like Ted Koppel’s Nightline.
It is death penalty litigation that has brought the wrongful convictions problem to light,
although the problem is not limited to such litigation.21 Thus, as of February 2004, all
or nearly all of the DNA exonerations were of inmates awaiting execution.22 While DNA
evidence is not available in most capital cases (nor, indeed, most non-capital cases),23
the systemic ﬂaws revealed by the DNA cases have made the public and politicians
more open to other sorts of proof of innocence.24 Most notably, the notoriety of several
capital wrongful conviction cases led Illinois’ then-Governor George H. Ryan to declare
a moratorium on capital punishment in that state as of January 31, 2000.25 In one of his
last acts as Governor, in January 2003 he commuted the death sentences of 167 people to
life in prison.26 Ryan concluded that the capital punishment system was “haunted by the
demons of error.”27
In 1997, three years before Governor Ryan declared a moratorium in Illinois, the American
Bar Association urged the country to adopt a moratorium on the death penalty. Following
the ABA’s and Illinois’ lead, other states launched their own actions: Maryland’s Governor,
Parris Glendening, declared a moratorium (lifted when Governor Robert Ehrlich took
ofﬁce in 2003), and other states launched studies of their capital punishment procedures.28
The president of the ABA from 2001-2002 began her term by calling for a nationwide
moratorium on executions “until fairness can be assured.”29
These actions have had a clear impact on public opinion. By July 2000, 94 percent of those
surveyed in a Harris poll agreed that “even innocent people are sometimes convicted of
murder.” In this same poll, when persons were asked, “For every one hundred people
convicted of murder, how many would you guess are actually innocent?”, the average
estimate was 13.30
Perhaps precisely because so much is at stake, the causes of error are most prevalent in
death penalty cases. A variety of experts have noted that in such cases, community and
media pressure for police to arrest suspects is signiﬁcant. Fear of the death penalty may
lead even the innocent to plea bargain to save their lives. More thorough, professional
factual investigation and mastery of complex legal issues are required, yet underpaid
appointed counsel often lack the resources, training, and motivation to rise adequately to
the challenge. Police zeal to catch the wrongdoer can lead to speed and sloppiness that taint
the reliability of an investigation, for example, by an ofﬁcer’s inadvertent introduction of
suggestion into a hastily designed lineup.31 The chances of error thus become greatest
precisely when the costs of a mistake — executing an innocent person — are highest.
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Despite recent revelations of error, the causes of errors in capital cases are unlikely to
dissipate quickly. In our overcrowded, under funded criminal justice system, guarding
against people’s fear for their physical safety has become more important than protecting
them against the actual, objective risks of their suffering harm.32 Moreover, these
errors have taken place under the judiciary’s eye, suggesting that even a watchful and
informed judiciary — that has no power to appropriate funds — cannot alone do the job.
Furthermore, as an ABA Committee on Innocence and the Integrity of the Criminal Justice
System has explained, “it is unlikely that any reﬁnements in the police and prosecutor
practices, improved rules at trial, or better defense representation will ever completely
eliminate convictions of all who are factually innocent.”33 The ABA report continues:
“Many perceive a need to go beyond individual exonerations and establish a permanent
complementary institutional procedure for those who claim factual innocence after a trial
has come to the contrary conclusion.”34
Other nations and various localities have offered three broad types of solutions. The ﬁrst
sort provides extra-judicial procedures for examining individual cases; the second sort
uses individual cases as a springboard for investigating and correcting systemic ﬂaws; and
the third sort seeks to make reform a constant process spurred on by a vigilant institutional
watchdog organization.35 This Committee takes no position on the details of a solution
appropriate for each jurisdiction. It does, however, strongly urge that the appropriate
authorities immediately adopt a Capital Case Early Warning Coordinating Council or a
similar institutional mechanism drawing on all three broad types of solutions as necessary
for addressing the multifaceted problem of wrongful convictions.
The British Criminal Case Review Commission

The British model ensures that the door is open to relief for those claiming factual
innocence. Its approach has neither ﬂooded the courts with cases nor given undue
attention to frivolous claims.
The Criminal Cases Review Commission (CCRC), created in 1997, is an independent
body charged with “investigating suspected miscarriages of criminal justice in England,
Wales, and Northern Ireland.”36 The CCRC’s mandate is to review applications by
convicted defendants claiming factual innocence, where there is a “real possibility that
the conviction, verdict, ﬁnding, or sentence would not be upheld were the reference to
be made.”37 The real possibility test is met only “because of an argument, or evidence,
not raised in the proceedings...” or under “exceptional circumstances.”38 “Exceptional
circumstances” includes “legal incompetence, a mistaken tactical decision, or failure to
appreciate its full signiﬁcance.”39
Applicants usually proceed without counsel, although they are entitled to up to ten hours of
legal assistance to prepare an application.40 Staff may conduct independent investigations
and, if it sees little likelihood of success, pass the case on with a recommendation for a
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“short form of review.”41 More thorough attention is given for cases the staff determines
present more plausible grounds for relief.
If a case manager and commission member then conclude that the “real possibility”
test has been met, they present the case to three Commissioners. The Commission may
appoint an outside investigating ofﬁcer or expert to conduct further investigation and can
do ﬁeldwork on its own.42
If warranted, the Commission will then refer the case to the Court of Appeals. A legal
aid lawyer will then be appointed, and the CCRC will withdraw.43 Unlike in the United
States, the appellate court may consider new evidence when it is expedient and there is a
reasonable explanation for its not having been offered at trial.44 Fewer than 5 percent of
the 800-900 cases annually screened by the CCRC are referred for review, with the Court
of Appeals quashing the convictions in about 70 percent of these referred cases.45
Canadian Study Commissions

Canadians go one step further than the British, under longstanding legislation authorizing
the appointment of Public Inquiry Commissions (“PICs”). These PICs are independent
non-governmental investigating bodies created to investigate the causes of a particular
mistaken conviction. Although the British system seeks only to rectify individual injustices,
PICs use individual cases as a springboard for thorough investigation of systemic reforms
meant to prevent additional, future mistakes.46
Two infamous cases have brought attention to the PIC system. The ﬁrst involved Guy
Paul Morin, convicted for the 1984 murder of a nine-year-old girl. Morin was ultimately
exonerated by DNA testing in 1995.47 The Province of Ontario ordered “an unprecedented
top-to-bottom examination of its criminal justice system,”48 and appointed a commission
charged with determining the causes of error in the case, recommending ways to avoid
future mistakes, and educating the community about the criminal justice system and
its ﬂaws.49 The Commission held 146 days of hearings with 120 witnesses and extensive
document review. It published a 1400 page report with 119 recommendations for change50
in areas including forensic science, police investigation procedures, training of prosecution
and defense counsel, jury instructions, and the rules for appellate and post conviction
review.51 But the Morin inquiry became best known for its damning conclusions about
the use of jailhouse informants, and its far-reaching recommendations for screening
informants, limiting inducements to them, ensuring full disclosure to the defense of their
background and of any deals made by them, and instructing juries on the unreliability of
informant testimony:52
The systemic evidence emanating from Canada, Great Britain, Australia
and the United States demonstrated that the dangers associated with the
jailhouse informants were not unique to the Morin case. Indeed, a number
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of miscarriages of justice throughout the world are likely explained, at least in
part, by the false, self-serving evidence given by such informants.53
The second infamous Canadian case involved the wrongful conviction of Thomas
Sophonow after three trials for the 1981 strangulation murder of a 16-year old girl.
Thirteen years later, the Police Service declared his innocence, announcing that another
suspect had been identiﬁed.54 The Manitoba government appointed a Commission of
Inquiry similar to that in the Morin case. The Commission’s Report included:
recommendations for the videotaping of all police interrogations of suspects
to guard against coerced or disputed confessions, recommendations for
improved eyewitness identiﬁcation procedures along with jury instructions
on the frailty of eyewitness identiﬁcation evidence, and severe restrictions on
the use of jailhouse informants.55
The Canadian PIC system has two advantages over the British CCRC. First, it focuses
on systemic improvements. Second, because each PIC is a temporary creation, no new,
potentially expensive, and politically controversial standing governmental bureaucracy is
established. However, Canada relies on traditional mechanisms (the courts and political
pressure brought to bear on the Executive) for identifying injustices in individual cases.
As the Canadian, British, and American experiences reveal, the courts and the political
system too often fail to identify and correct individual cases in which the innocent
have been convicted. The CCRC thus has one powerful advantage over Canadian PICs:
the existence of an administrative body focused solely on ensuring justice not for the
system as a whole, but for the wronged individuals. An ideal institutional mechanism
would combine the best features of both the British CCRC and the Canadian PICs,
aiding individuals already harmed by the system while working to avert future harm by
improving the system itself.
Innocence Commissions and Their Cousins

Law professors Barry Scheck and Peter Neufeld urge that the United States form
“Innocence Commissions” that would combine the strengths of the British CCRC in
attaining individualized justice with the Canadian PICs’ emphasis on systemic reform.
Innocence Commissions would, however, be standing independent bodies devoted to
both identifying and correcting the causes of wrongful convictions and maintaining
pressure for continual systemic improvement.56
The Innocence Commission idea is modeled after the National Transportation Safety
Board (“NTSB”). The NTSB can, at its own discretion, form a “special board of inquiry”
following “an accident involv[ing] a substantial question about public safety” and may
“do anything necessary to conduct an investigation.”57 Investigating committees may issue
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subpoenas, compel sworn testimony, order forensic tests, and even bring civil actions
in federal court against any party obstructing an investigation. Once an investigation is
complete, the NTSB delivers a report to the Secretary of Transportation that includes both
a factual record and a set of reform recommendations, and the Secretary must respond
within 90 days of receiving the report, publicly declaring that the NTSB recommendations
should be adopted in whole, in part, or not at all.58 The ﬁndings and recommendations
cannot, however, be used as the basis for civil or criminal liability, although the supporting
factual record may be a source of evidence in such proceedings.59
Scheck and Neufeld draw on the NTSB process to identify six features necessary for
innocence commissions:

•
•
•
•
•
•

They should be standing committees with discretion to investigate any wrongful
conviction and recommend whatever policy reforms they see ﬁt;
They must be able to order reasonable and necessary investigative services,
including forensic testing, autopsies, and other research services;
They should be able to subpoena documents, compel testimony, and bring civil
actions against any person or entity obstructing any investigation;
To avoid political pressures, their ﬁndings and recommendations should not
be binding in any subsequent civil or criminal proceeding, although the factual
record created by the commission can be made available to the public;
They should be transparent, publicly accountable bodies, composed of diverse,
respected members of the criminal justice community and the public; and
They should be required to ﬁle public reports on their ﬁndings and
recommendations, and the relevant branch of government to which these reports
are submitted should issue a formal written response to the recommendations
within a ﬁxed period of time.60

Professor Michael Saks has proposed a less independent, less elaborate but otherwise
similar process, in which the Supreme Court would appoint one or more people to
conduct an inquiry into the causes of wrongful convictions, making a written report
including ﬁndings and recommendations.61
Governors, attorneys general, and legislatures have the power to appoint such
commissions, and state supreme courts can do so pursuant to their inherent supervisory
powers. Several states, most notably Illinois and Maryland, have appointed temporary
commissions to study causes of error and unfairness in the administration of the death
penalty.62 But these Commissions are time-limited, subject to political pressures over
their creation and ﬁndings, and lacking in the continuing transparency and vigilance
needed to promote implementation of recommendations and to monitor for the need
for future ones.
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The American Bar Association’s Ad Hoc Committee on Innocence and the Integrity of
the Criminal Justice System, on the other hand, has complained that even the NTSB
model is reactive rather than proactive, waiting until there is a ﬁre to investigate rather
than conﬁscating the matches before the conﬂagration begins. The ABA Committee
therefore recommends that jurisdictions consider creating ongoing councils that include
“the major stakeholders in the criminal justice system to identify and suggest policy in
problem areas.”63 This approach is modeled on one used in connection with sentencing
policy for female offenders. With the assistance of the National Institute of Corrections,
“[r]epresentatives from local government, the public defender, state’s attorney, sheriff,
judges, probation ofﬁcers, and service providers were included in an effort to improve
policy and services concerning female offenders.”64 The ABA Committee would include
similar groups in an erroneous convictions panel, while also adding representatives
of law enforcement, forensics labs, the jury commissioner, and the public.65 The ABA
Committee has elaborated upon additional functions of such “early warning system”
panels or committees:
Committees could address general as well as speciﬁc issues. For example, if
public defenders were hearing complaints that seemed to focus on particular
ofﬁcers, judges, or prosecutors, these could be given to the appropriate
representative for their own investigation or serve as a general impetus for
better training in particular areas. Similarly, complaints about slowness
of forensic results might reveal priority questions regarding processing of
different categories of cases. Given a world of limited stakeholders, if all of the
major stakeholders agreed that more resources were necessary for a particular
purpose or agency, this cross-agency collaboration of unlikely allies might
prove more credible in efforts to obtain the necessary resources. Jurisdictions
could determine how often to meet, but the value of such bodies begins to
decrease if they meet too frequently or infrequently.66
Georgia has established a similar panel, the Criminal Justice Coordinating Council,
designed to “serve as a statewide body providing leadership to coordinate, intensify,
and make more effective the components of the criminal justice system at all levels
of government.”67 New Mexico’s Criminal and Juvenile Justice Coordinating Council
likewise seeks to provide recommendations and assistance “from a coordinated crossagency perspective to the three branches of government and interested citizens so they
have the resources they need to make policy decisions that beneﬁt the criminal and
juvenile justice systems.”68 The District of Columbia’s Criminal Justice Coordinating
Council also serves:
as the forum for identifying issues and their solutions, proposing actions,
and facilitating cooperation that will improve public safety and the related
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criminal and juvenile justice services for the District of Columbia residents,
visitors, victims, and offenders. The CJCC draws upon local and federal
agencies and individuals to develop recommendations and strategies for
accomplishing this mission. Our guiding principles are creative collaboration,
community involvement, and effective resource utilization. We are committed
to developing targeted funding strategies and comprehensive management
information through integrated information technology systems and social
science research in order to achieve our goal.69
The ABA committee rightly recommends that where such coordinating councils already
exist, their mandates should be clariﬁed speciﬁcally to include issues of fairness, integrity,
and accuracy so that “these bodies do not simply function as promoting the efﬁcient
processing of defendants, without any real policy mission” and that the “innocence
function should clearly be a speciﬁc mission requiring additional resources and a
permanent structure, rather than be treated as simply another task assigned to a preexisting group.”70
Even if both NTSB-style commissions and early warning system coordinating councils are
established in each jurisdiction, other institutions exist that can work with them toward
the common goal of monitoring governmental errors and abuses. Many jurisdictions, for
example, have Innocence Projects, usually associated with university law or journalism
schools, in which students and practicing attorneys investigate wrongful conviction
claims, represent those with credible innocence claims, and develop initiatives to raise
public awareness and create and implement systemic solutions. Although these Innocence
Projects initially focused on DNA exonerations, they are starting, and should continue,
to expand their mission to include numerous other ways to identify and correct wrongful
convictions. Most rely on volunteers or academic credit and lack adequate funding. Many
jurisdictions have no such project. These Projects should become adequately funded,
integral parts of the criminal justice system to ensure citizen monitoring of actual and
potential abuses.71
Citizen monitoring can be promoted by expanding public education on the problem of
convicting the innocent. High school and college courses should address these issues,
police ofﬁcers should be trained in identifying them, and lawyers must know how to
uncover and cure existing or impending errors. Law schools in particular might establish
courses, as some are starting to do, focusing on the causes of, and cures for, wrongful
convictions and on educating the public and the legal profession about the problem.72
Conclusion to Recommendation 16

The problem of wrongful convictions extends well beyond death penalty cases. Nevertheless,
this Committee’s mandate is limited to such cases. Furthermore, this Committee leaves
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the details of implementing our proposals to individual jurisdictions, each of which
will face unique resource, political, and other challenges. Accordingly, the Committee
recommends that every jurisdiction create a mechanism for reviewing individual claims
of wrongful convictions in capital cases, for recommending systemic changes to avoid
future errors in such cases, for monitoring and consistently improving the accuracy and
fairness of the administration of the death penalty, for creating and adequately funding
death penalty innocence projects, and for educating the public, the legal profession, and
law enforcement about the wrongful convictions problem.

DNA EVIDENCE
RECOMMENDATION 17: The Government Should Preserve and Use
DNA Evidence to Establish Innocence or Avoid an Unjust Execution.
In cases where the defendant has been sentenced to death, states and the federal
government should enact legislation that requires the preservation and permits the
testing of biological materials not previously subjected to effective DNA testing, where
such preservation or testing may produce evidence favorable to the defendant and
relevant to the claim that he or she was wrongfully convicted or sentenced. These laws
should provide that biological materials must be generally preserved and that, as to
convicted defendants, existing biological materials must be preserved until defendants
can be notiﬁed and provided an opportunity to request testing under the jurisdiction’s
DNA testing requirements. These laws should provide for the use of public funds to
conduct the testing and to appoint counsel where the convicted defendant is indigent.

COMMENTARY
Over the past two decades, DNA testing has been developed and substantial advances
in its sophistication and effectiveness have occurred. This technology now frequently
makes possible the effective testing of biological materials that were left at crime scenes,
as well as comparison with the accused or convicted defendant’s DNA. The evidence
produced can be extraordinarily powerful in either incriminating or exculpating the
suspected or convicted defendant. Sometimes the results of such testing are decisive.
The effort to use DNA evidence effectively to prove guilt and to establish innocence
should be continued along lines set out in the DNA Identiﬁcation Act of 1994 and
related legislation.
Prior to the mid-1990s, DNA testing was not widely available, and, as a result, biological
materials relevant to guilt or innocence were not tested for use at trial. Subsequent
examination of cases using this new forensic technique has resulted in the exoneration of
more than one hundred and twenty innocent men and women of the crimes for which
they had been convicted. In at least nineteen of these cases, the defendant had been
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sentenced to death but had not yet been executed. In more than twenty-ﬁve of the cases,
the tests resulted in the identiﬁcation of another individual as the true perpetrator of
the offense. In addition, recent advances in DNA testing technology may now produce
usable evidence where no results could be obtained with earlier methods. Even in those
instances where earlier technology provided some results, new technology may generate
substantially more powerful and probative evidence.
In most jurisdictions, the legal structure is not adequate to take proper advantage of the
advances in scientiﬁc testing of evidence. Legislation should be enacted to cure a number
of deﬁciencies in the legal structure.
First, legislation should require the preservation of biological samples in all pending
death penalty cases, and should require testing upon defense requests in cases that have
not yet been tried. In some instances, the failure of current law to mandate preservation
has resulted in the tragic destruction of potentially critical evidence, typically without
any meaningful remedy. To help ensure access to justice, jurisdictions should immediately
enact legislation requiring the preservation of all existing biological samples until affected
defendants can be notiﬁed and given an opportunity to exercise their statutory rights.
Second, the legislation should, in appropriate circumstances, grant a convicted defendant
the right to secure testing. A showing by the defendant that the results of the test would be
relevant to the correctness of the determination of guilt or the sentence of death should be
sufﬁcient to secure testing. Testing should be available where the results would bear only
on the correctness of the death sentence and should not be restricted to circumstances
where actual innocence is alleged. Similarly, testing should not be restricted to cases where
exclusion of the evidence would necessarily exonerate the defendant; a showing that the
results would be relevant or helpful to establishing an erroneous conviction or sentence
should be sufﬁcient.
DNA testing should be made available if testing was not conducted or not available at
the time of trial. Moreover, if DNA testing has previously been conducted, new testing
should be ordered if advances in DNA technology present a reasonable possibility that
new exculpatory evidence may now be produced.
Jurisdictions have a legitimate interest in ensuring the fairness of testing and the integrity
and, to the extent possible, the preservation of biological samples. They can accordingly
impose restrictions and requirements on the laboratories used and the testing mechanisms
employed to satisfy these legitimate concerns.
Third, because the vast majority of those sentenced to death are indigent, legislation should
provide for public ﬁnancing of testing when such testing is shown to be appropriate.
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Likewise, it should provide for appointment of counsel for defendants seeking testing, if
the defendant is not already represented by counsel and is indigent.
Details about the operation of these statutes should be left to individual jurisdictions.
Despite the advances of science, certainty in the outcome sometimes will be unclear
because the interpretation of the relationship between the biological evidence and the
crime is problematic. However, the development of DNA testing has given us a unique
view into the inaccuracies of the determinations of guilt in a sizeable number of cases that
have moved through our criminal justice system and have passed reviews by juries and
appellate judges. The easiest part of the lesson of DNA should be creating procedures to
right the wrongs that can be documented.
Moreover, experience with DNA testing technology and its revelations of error should
demonstrate to the criminal justice system the imperative to establish systems to preserve
physical evidence, where reasonable prospects exist that subsequent scientiﬁc advances
may draw new evidentiary signiﬁcance from it.

RECOMMENDATION 18: The Government Should Consent to
Preserve, Inspect, and Test Biological Evidence.
All government ofﬁcials should promptly and readily consent to preservation, inspection,
and DNA testing of biological evidence in their custody that is reasonably likely to aid in
identifying the true perpetrator(s) of a criminal offense. Such consent should be freely
given, without requiring the individual seeking DNA testing to engage in protracted
litigation, in the pre-trial, trial, and post-conviction phases of criminal proceedings. This
obligation should also extend to cases in which capital defendants have been executed,
given the public’s strong and continued interest in ensuring the accuracy of the criminal
justice system, and the lack of any interest by the state in barring DNA testing once a
death sentence has been meted out. (2005 Update.)

RECOMMENDATION 19: The Government Should be Required to
Submit DNA Proﬁles to DNA Databanks in Certain Cases.
If law enforcement agencies fail to submit to a state or federal DNA databank (a)
unidentiﬁed DNA proﬁles obtained from evidence in a defendant’s case, and/or (b)
unidentiﬁed DNA proﬁles from cases that reasonably appear to be related to the offense
for which another defendant was convicted, the defendant should have the right to
petition a court for, and the court shall have the right to issue, an order requiring
the state to submit such proﬁles to state and federal DNA databanks for comparison
purposes. (2005 Update.)

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COMMENTARY (RECOMMENDATIONS 18-19)
The use of sophisticated DNA technology to analyze forensic evidence has truly
revolutionized our nation’s justice system and has continued to do so ever since the
Committee issued its recommendations on this issue in 2001. In little more than a decade,
it has become the foremost technique for conclusively identifying — and excluding —
criminal suspects in cases where biological material (such as blood, saliva, skin, semen or
hair) is left at a crime scene.73 The advent of DNA databanks has allowed law enforcement
ofﬁcials to solve thousands of “cold cases,” some of them decades old and with no other
leads or suspects before the DNA “hit” pointed to the perpetrator.74 And the use of DNA in
the post-conviction context has, to date, led to the exoneration of more than 150 innocent
individuals who had been wrongfully convicted of murder, rape, and other serious offenses
— which, in turn, has sparked national debate about the underlying causes of wrongful
convictions and what can be done to remedy them.75
In the words of former Attorney General John Ashcroft, DNA is “nothing less than the truth
machine of law enforcement, ensuring justice by identifying the guilty and exonerating
the innocent.”76 Many prosecutors and other government ofﬁcials have embraced this
new technology across the board — readily consenting to DNA testing in cases where it
can prove (or disprove) a defendant’s claim of innocence, and taking immediate steps to
rectify a wrongful prosecution or conviction if the test results are exculpatory. They have
recognized that giving defendants broad access to DNA testing signiﬁcantly advances
two important purposes of our nation’s justice system: (a) conclusively exonerating the
innocent of crimes they did not commit, and (b) through DNA databanks and other
methods, apprehending the real perpetrators of violent offenses before they have the
opportunity to commit new ones. This largely shared view among prosecutors and
defense lawyers, and liberals and conservatives, has resulted in a wave of new laws expressly
granting convicted persons a right of access to DNA evidence, with more than 35 states
enacting such laws in the last decade.77
Yet a small but troubling number of prosecutors and other ofﬁcials have resisted this
trend. Particularly in the post-conviction context, where DNA testing often involves
reexamination of convictions that were obtained a decade or more ago (i.e., at a time when
DNA testing, or the advanced method of testing sought, was unavailable), some ofﬁcials
have vigorously opposed giving defendants access to biological evidence for DNA testing,
even where the evidence clearly came from (and can thus identify) the true perpetrator.78
Bruce Godschalk of Pennsylvania, for example, was convicted of two brutal rapes that
occurred in the same apartment complex in 1986. At the time of his conviction, DNA
testing was unavailable to determine whether the perpetrator’s semen, recovered from
both victims immediately after the attacks, was his. Yet the prosecutors refused to consent

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to Godschalk’s request for DNA testing on that evidence when he ﬁrst sought it in 1995,
or even to conﬁrm whether the evidence still existed — forcing him to spend seven years
litigating his motion for access to the evidence in both state and federal courts. Godschalk
was ultimately exonerated of both offenses by court-ordered DNA testing that excluded
him as the source of the rapist’s DNA in 2002, after serving a total of ﬁfteen years in prison
for these crimes. Tragically, the prosecutors’ refusal to consent to testing in Godschalk’s
case nearly doubled the time this innocent man spent behind bars, during which time his
mother passed away so she was unable to witness his exoneration and release.79
It has become increasingly clear, moreover, that denying defendants broad access to DNA
testing — whether pre-trial, at trial, or post-conviction — not only harms those innocent
persons who face wrongful imprisonment or, worse, execution, it also jeopardizes public
safety. The same DNA test results that exclude a defendant can also identify and apprehend
the real perpetrator — by comparing the crime scene DNA proﬁle to that of a known
alternate suspect, or tying it to a convicted felon (or related unsolved crime) through
a “hit” in the national CODIS databank system. Where ofﬁcials delay or deny access to
DNA evidence, however, the real perpetrator may well be at large and free to commit
more crimes. Just a few such examples include the following:

•

In Florida, a series of DNA tests conducted in 2000 and 2001 proved that
neither Jerry Frank Townsend (an individual with mental retardation who
falsely confessed to 7 rapes and murders while in police custody, then pled
guilty to avoid the death penalty) nor Frank Lee Smith (who was sentenced to
death for a 1985 rape-murder of a child, and died on death row while ﬁghting
to obtain a DNA test on the evidence) committed the crimes for which they
were convicted. The proﬁles from those cases instead pointed to Eddie Lee
Mosley, a serial offender who committed not only these crimes, but who may
have also been responsible for more than ﬁfty other rapes and murders during
that time.80
In Arizona, Ray Krone became the 100th innocent person exonerated from death
row in April 2002, after DNA tests conducted on traces of saliva from a murder
victim’s bite mark not only excluded Krone, but also led to a CODIS hit on the
real perpetrator. That man — a convicted pedophile named Kenneth Phillips
— had assaulted a 7-year-old girl twenty days after committing the murder for
which Krone was wrongfully convicted.81
In California, DNA from a series of unsolved rapes and murders committed by
the unknown “Bedroom Basher” in the late 1970s was entered into the databank
in 1996. An immediate “hit” led police to the real perpetrator, Gerald Parker,
who confessed not only to these crimes, but also to the 1979 murder of a woman
named Diana Green — whose husband, Kevin, a former Marine, had been

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•

convicted and remained in prison for the crime. After DNA from the case was
tested and found to be consistent with Parker’s, Kevin Green was exonerated
and freed in 1996.82
In 1992, Kirk Bloodsworth of Maryland became the ﬁrst inmate sentenced to
death in the U.S. to be exonerated by DNA testing. While conceding at that time
that his conviction for the rape-murder of a child should be vacated based on
DNA tests excluding him from semen found on her clothing, the prosecutors in
that case refused to admit that he was “innocent” of the crime. It was not until
a decade later, when Bloodsworth’s attorneys ﬁnally convinced the state to enter
DNA from the case into CODIS, that the real perpetrator was identiﬁed, and the
prosecutors apologized to Mr. Bloodsworth for his ordeal.83

Similarly, DNA testing conducted during active criminal investigations and pretrial
proceedings has shown an unprecedented ability to exonerate those erroneously identiﬁed
as prime suspects — which both prevents a wrongful conviction from occurring, and
allows law enforcement to renew their search for the offender.84
Clearly, then — given the unquestioned reliability of DNA technology, and its ability to
conclusively identify/exclude a defendant decades after the crime has occurred — the
beneﬁts of providing defendants broad access to DNA evidence should trump traditional
concerns about “ﬁnality” that might otherwise prevent such cases from being reexamined.
Indeed, as victims and others have noted, “ﬁnality” is meaningless if the wrong person has
been convicted of the crime and the real perpetrator remains at large; and where DNA
may resolve the issue, those interests work in favor of such testing.85
This is particularly so in cases seeking DNA testing on evidence after a defendant has been
executed. While the executed defendant will, of course, no longer be able to directly beneﬁt
from exculpatory test results, the most common rationale for limiting post-conviction
proceedings in death penalty cases — preventing delay in carrying out a legitimate death
sentence — is no longer present post-execution. Yet the public’s interests in monitoring
the accuracy of the justice system, and ensuring that the true perpetrator does not remain
at large, remain strong, while the government no longer holds any legitimate interest in
denying access to DNA evidence.86
In recent years, there have also been rare, but nonetheless troubling, reports of failures
by government ofﬁcials to acknowledge and act upon exculpatory DNA test results.
These include refusals to vacate convictions or charges even after DNA test results
conclusively exclude a defendant, or are otherwise wholly inconsistent with the theory
under which the defendant was prosecuted — whether by citing legal technicalities to
bar the DNA results from being introduced in court, or by propounding a new theory
of guilt that cannot be squared with the DNA evidence.87 It is a prosecutor’s obligation
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not merely to charge and convict, but also to seek the truth and do justice. All law
enforcement ofﬁcials should fully reassess criminal convictions in light of new DNA
evidence — and should seek to uphold such a conviction not merely because they can,
but only if they truly believe that the evidence proves the defendant’s guilt beyond a
reasonable doubt.88
Finally, yet another disturbing phenomenon is the all too frequent failure by law
enforcement ofﬁcials to renew old criminal investigations after a defendant’s conviction
has been vacated — even taking the simple step of putting DNA proﬁles into state and
federal databanks.89 While the courts rightly have little power to direct the course of a
criminal investigation, the public’s interest in identifying the true perpetrator (and the
defendant’s interest in decisively “clearing his or her name”) justify limited intervention
in cases where DNA is probative of guilt or innocence. Thus, where the government fails
to do so on its own, defendants who have obtained exculpatory DNA test results should
have the right to seek a court order requiring the submission of scientiﬁcally valid DNA
proﬁles into CODIS. Similarly, in cases where other crimes may reasonably be related to
the conviction at issue (i.e., those that have a similar modus operandi or are thought to
be the work of a serial offender), defendants should have a right to petition the court for,
and the court shall have the authority to issue, an order that DNA testing be conducted
on biological material from those offenses, and that those proﬁles should be entered into
CODIS for comparison purposes.

FORENSIC LABORATORIES
RECOMMENDATION 20: The Testimony of Forensic Examiners Not
Associated with Accredited Laboratories Should be Excluded.
Testimony from a forensics examiner offered by the prosecution in capital cases should
be excluded from evidence when the examiner is not associated with an accredited
forensics laboratory. (2005 Update.)

RECOMMENDATION 21: Accreditation of Laboratories Should be
Limited.
Accreditation should be permitted only for laboratories that:
employ certiﬁed technicians;
do not release results based on insufﬁciently validated techniques;
articulate and enforce written standard protocols; and
require examiner proﬁciency testing in the particular technique in question.
(2005 Update.)

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COMMENTARY (RECOMMENDATIONS 20-21)
Overview: The Nature of the Expert Testimony Problem

Expert testimony plays an increasingly large role in the trial of criminal cases. Forensic
pathology, ﬁngerprint analysis, drug testing, ﬁrearms identiﬁcations (“ballistics”),
questioned document examination, and DNA testing are but a few of the techniques
used in modern criminal trials. Yet,
[i]n the courtroom, the introduction of scientiﬁc evidence is replete with hazards.
There is always the question of whether the jurors — and in some instances even
the judge — are able to comprehend it, and the more formidable question of
how seriously that theory’s application is treated by the forensic community. In
recent years, the testimony of handwriting analysts has been called into doubt,
and even more critically, the infallibility of ﬁngerprint identiﬁcation, once
considered the very soul of absolute certainty, has become suspect.90
Growing concerns about “junk science” and its potential undue impact on the fact ﬁnder
led the United States Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, Inc.,91 to
require that all scientiﬁc theories and techniques be shown to be “relevant and reliable”
before they can be admitted into evidence. Daubert required trial courts to consider at
least ﬁve factors in gauging reliability: (a) whether the theory and technique are testable,
have been tested, and have survived such testing; (b) whether they have also survived peer
review and the gauntlet of the publication process; (c) whether their potential error rate is
known; (d) whether there are authoritative standards controlling the technique’s operation;
and (e) whether the principle or technique has attained “widespread acceptance.”92
The Supreme Court has made clear that all expert testimony, scientiﬁc or not, novel or not,
must be subjected to “exacting standards of reliability”93 under Daubert94 though this may
require modiﬁcation of the reliability factors articulated in Daubert to ﬁt the particular
technique and expert discipline.95 Even jurisdictions that have retained the older Frye
test — which preceded Daubert and required “general acceptance” of a novel scientiﬁc
technique in the relevant ﬁeld — have often done so in the stated belief that Frye offers
greater protection for defendants than does Daubert.96 Whether under this “reinvigorated”
Frye test,97 or under Daubert, therefore, “scientiﬁc proof is being scrutinized more closely
than ever before.”98
The need for such scrutiny is particularly great because of the now “widespread awareness”
that in a signiﬁcant number of cases, doubtful scientiﬁc techniques have contributed to
wrongful convictions.99 Among the ﬂawed techniques used have been “hair comparison
analysis,” “dog scent lineup identiﬁcations,” bite mark comparison, and hypnotic recall.100
Indeed, the recent exonerations of the defendants in the Central Park Jogger Case in New
York City were but the latest in a string of wrongful convictions stemming in part from
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reliance on faulty “scientiﬁc” methods.101 These sorts of concerns led the Florida Supreme
Court, in reinvigorating its version of the Frye test, to comment:
In order to preserve the integrity of the criminal justice system in Florida,
particularly in the face of rising nationwide criticism of forensic evidence in
general, our state courts — both trial and appellate — must apply the Frye test
in a prudent manner to cull scientiﬁc ﬁction from scientiﬁc fact. Any doubt as
to admissibility under Frye should be resolved in a manner that minimizes the
chance of wrongful conviction, especially in a capital case.102
Even where scientiﬁc methods and techniques are proven reliable, however, those
techniques might not be properly applied to the facts of a particular case, because
standard lab procedures are inadequate, lab technicians are sloppy or incompetent, or
outright fraud is committed.103 Laboratories have lost critical evidence and misreported
results.104 They have performed poorly in numerous proﬁciency studies.105 Under
funding, lack of adequately qualiﬁed personnel, overwork, and the failure to follow sound
procedures all contribute to error.106 Thus, for example, although DNA typing is a reliable
technology, sloppy procedures still lead to erroneous results because “the analysts who
use these techniques are fallible human beings who are sometimes overworked and under
trained.”107 Scientiﬁc techniques are only valid if proper procedures are followed.108 One
commentator summarized the problem of laboratory sloppiness this way:
Wholly apart from the problems associated with fraud, the trustworthiness
of forensic science is also impaired by problems of innocent error, sloppiness,
exaggeration, and bias. Even the most respected labs, with presumably rigorous
safeguards, still experience problems of inadvertent mislabeling or switching
of samples, loss of evidence, misreading of results, mistaken recording of data,
and mis-transcribing of results.
Responsible scientists will honestly, if reluctantly, concede the history of
inadvertent error in their labs. Because of the number of errors that are
experienced by the most respected independent labs, and because it is
impossible to estimate the number of inadvertent errors that are never caught
or corrected, it is safe to assume that inadvertent error permeates the entire
system and can have profoundly tragic results.109
Recognizing the importance of the problem of misapplication of even valid scientiﬁc
insights and techniques, Congress recently amended Federal Rule of Evidence 702 to
require that principles and methods be shown to have been reliably applied “to the facts
of the case.”110 The studies of laboratory error show the critical importance of the spirit
of this amendment.111
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Fraud, too, is a signiﬁcant source of error. One of the most infamous of the fraud cases
involved forensic scientist Fred Zain, who testiﬁed in courts in West Virginia, Texas,
Delaware, Florida, Hawaii, Kentucky, Nebraska, New Mexico, Ohio, Pennsylvania, and
Virginia.112 Zain was a “forensic superstar,” who found “ﬂecks of blood and smudges
of semen where his colleagues found nothing.”113 He “also possessed phenomenal lab
techniques — a unique ability to detect genetic markers in crime scene stains that turned
otherwise hopeless cases into prosecution dreams.”114 Zain’s magic turned out, however,
to be what most magic is — illusion and deception involving massive fraud.115 A judicial
report summarized the wide array of Zain’s fraudulent acts:
(1) overstating the strength of results; (2) overstating the frequency of genetic
matches on individual pieces of evidence; (3) misreporting the frequency of
genetic matches; (4) reporting that multiple items of evidence have been tested,
when only a single item had been tested, (5) reporting inconclusive results as
conclusive; (6) repeatedly altering laboratory records; (7) grouping results to
create the erroneous impression that genetic markers had been obtained from
all samples tested; (8) failing to report conﬂicting results; (9) failing to conduct
or to report conducting additional testing to resolve conﬂicting results; (10)
implying a match with a suspect when testing supported only a match with a
victim; and (11) reporting scientiﬁcally impossible or improbable results.116
Concerns about Zain’s work led the West Virginia Supreme Court in 1993 to appoint a
retired judge to preside over a Special Investigation into Zain’s analyses.117 As part of that
investigation,
Independent experts selected by the American Academy of Crime Laboratory
Directors (ASCLD) reviewed the raw data from the lab — the original records
of the actual test results — and compared that data to the written reports
prepared by Fred Zain. The ASCLD experts then compared the raw data to
Fred Zain’s trial testimony. The ASCLD team reached a startling conclusion. In
virtually every case where there was sufﬁcient evidence to review, the ASCLD
experts found fraud.118
Indeed, “[t]wo of Fred Zain’s assistants testiﬁed that they observed Zain faking data —
recording results when the actual tests failed to produce any result at all — in nearly
100 instances.”119 Yet, concluded the investigators, the assistants’ complaints to their
supervisors were ignored.120
Other forensics “experts” in Oklahoma and Montana have generated similar concerns.121
In Oklahoma, attention focused on Joyce Gilchrist, a forensic chemist who had worked
on over 1500 felony cases in more than twenty years with the Oklahoma City Police
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Department (“OCPD”).122 Gilchrist was also given the task in 1987 of setting up an
OCPD DNA laboratory. The Innocence Project at Cardozo Law School, relying on later
DNA tests, eventually proved “that Gilchrist and other Oklahoma police chemists had
mistakenly matched evidentiary hairs to defendants in several murder and rape cases
that led to wrongful convictions, including those of three death row inmates.”123 In one of
these cases, DNA testing also subsequently identiﬁed the true killer.124
The Innocence Project was not alone in its interest in Gilchrist’s work, for various justice
system actors had long worried and complained about it.125 In April 2001, an FBI report
revealed that its own investigation of Gilchrist’s work in eight different cases demonstrated
that she had misidentiﬁed hairs in six of the cases and ﬁbers in one other. Two weeks
later, another damning document was made public: a January 16, 2001 memorandum by
OCPD laboratory services division head, Captain Byron Boshell, concluded on the basis
of an audit that he had ordered that “Gilchrist had severely mismanaged the OCPD crime
lab and DNA project and was directly responsible for evidence having been lost, destroyed,
contaminated, or mishandled.”126 The audit revealed that Gilchrist was poorly trained,
prosecution-prone, refused to submit her casework to peer review, ordered evidence
destroyed without having approval to do so, lost or destroyed case ﬁles for several years,
exposed evidence to mold and degradation, and misled investigators as to her actions.127
According to Major Garold Spencer of the OCPD, “In every case where something was
found wrong with something Joyce did, she had other people or other reasons why it
happened. In many cases, the people that she would blame were either long retired or
dead. It was amazing how her reasoning would center around things you couldn’t verify.”128
Only a careful examination of Gilchrest’s laboratory notes, trial testimony, and physical
evidence revealed her massive fraud and negligence.129
Fraud by other examiners in individual cases (rather than, as with Zain and Gilchrist,
in a pattern consistent across many cases) has been uncovered “in crime labs
throughout the country.130 Most recently, an independent investigator appointed to
examine problems in the Houston Police Department Crime Laboratory identified
longstanding inadequate political and internal support for the lab, inadequate
resources, ineffective management, inadequate quality control and quality assurance
procedures, and isolation of the lab, and especially the DNA section, from scrutiny
internally and by the forensic science community. In particular, because management
failed to repair a leaky roof, Tropical Storm Allison flooded the lab, and biological
evidence was soaked and probably contaminated. The investigator found four
incidents of dry-labbing by two separate drug section analysts. Officials believed that
any effort to attain accreditation would fail in light of these problems, and there was
no outside inspection of the lab until 2002.131 These events resulted in calls for a death
penalty moratorium from, among others, Houston’s Chief of Police and the chair of
the Senate Criminal Justice Committee.
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Both lab sloppiness and fraud, like the honest and careful application of unreliable
techniques, have signiﬁcantly contributed to wrongful convictions.132 Barry Scheck and
his co-authors, in their study of DNA exonerations of the wrongly convicted, concluded
that one-third of these cases involved “tainted or fraudulent science.”133 Many of these
mistakes occurred in death penalty cases.134 For example, in December 2004, the Chicago
Tribune reported on the case of Cameron Willingham, executed in 2004 in Texas for
setting a 1991 ﬁre that killed his three daughters. Prominent arson experts who recently
examined the evidence have concluded that the state’s experts, who testiﬁed that arson
had occurred, were relying on ﬂawed scientiﬁc assumptions and techniques, and that
the ﬁre may well have been accidental. Even one of the original prosecution investigators
agreed that their conclusions were based on outdated assumptions.135
Mistaken or fraudulent expert testimony can itself bias a jury’s verdict.136 But it can also
distort non-expert testimony. The William Harris case illustrates the point. There, the
victim “unhesitatingly” identiﬁed the defendant at trial, then expressing “no doubt” in
the accuracy of her identiﬁcation of Harris as her sexual assailant.137 The Deputy Sheriff
likewise testiﬁed that the victim expressed absolute certainty at a lineup that Harris was
the offender: “She had no doubt in her mind. It was probably the most dramatic sort of
identiﬁcation I had ever seen.”138 Yet, in the long-concealed original police report, the
victim was described as eliminating Harris from a photo spread. The report noted, the
“[v]ictim said she knew him and it wasn’t him.”139 Why had the victim changed her mind
between the photo spread and the lineup? The apparent answer included the sharing of
faulty, indeed fraudulent, “scientiﬁc” evidence with the non-scientiﬁc witnesses, including
the victim and the investigating deputies.140 There is reason to believe that similar tainting
of non-scientiﬁc testimony by scientiﬁc error or fraud is not uncommon.141 Yet it can be
difﬁcult to prove such contamination, allowing prosecutors to argue that a conviction
based partly on erroneous expert testimony should not be reversed because the error was
“harmless” given overwhelming “independent” evidence of guilt.142 Given the irreversibility
of the sentence, these concerns should be paid particular heed in death penalty cases.
Despite the recent amendments to the Federal Rules of Evidence, trial judges and alert
trial counsel cannot alone cure these forensic evidence problems. Pretrial discovery
concerning expert testimony is sharply truncated in many jurisdictions, especially
given the complexity of the issues.143 Laboratory reports are often incomplete, expert
testimony summaries cursory, and expert depositions nonexistent, providing limited
fodder for cross-examination.144 Moreover, both prosecutors and defense counsel are so
overworked and under funded as to make it impractical for them to challenge laboratory
results in every case. It is, therefore, critical to correct the errors at their source: the
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Mandating Police Laboratory Accreditation Procedures

Although this country signiﬁcantly regulates clinical laboratories — the kind that aid in
medical diagnoses — our state and national systems for regulating the quality of crime
laboratories are extraordinarily weak.145 Indeed, less than a handful of states require forensic
laboratory accreditation.146 One commentator has thus complained: “At present, forensic
science is virtually unregulated — with the paradoxical result that clinical laboratories
must meet higher standards to be allowed to diagnose strep throat than forensic labs
must meet to put a defendant on death row.”147 More recently, Judge Jack B. Weinstein has
urged that “[a]ccreditation of laboratories presenting research in courts would provide a
minimum standard for gauging the credibility of the research and testimony offered.”148
Outside the realm of DNA testing, however (and only sporadically even in that context),149
calls for forensic crime lab regulation have generally not been heeded, much less calls for
mandatory crime lab accreditation.
A voluntary accreditation system is in place, however, in a signiﬁcant number of laboratories.
The American Society of Crime Laboratory Directors (ASCLAD) has accredited over
240 forensic laboratories. Some courts have considered such accreditation signiﬁcant in
determining whether to exclude certain forensics evidence at trial, or whether the weight
of the evidence should be diminished.150
Voluntary accreditation by organizations such as the National Forensic Science
Technology Center, a compliance-accrediting body of the International Organization for
Standardization (ISO), the National Association of Medical Examiners (NAME), which
accredits Coroner and Medical Examiner Ofﬁces, and the American Board of Forensic
Toxicology, which accredits toxicology laboratories, are inadequate guarantees of quality,
according to the President of the prestigious American Academy of Forensic Sciences,
who has questioned the reluctance of forensic laboratories and individuals to become
accredited or certiﬁed.151
Stringent mandatory accreditation programs would do much to improve the quality of
forensic science. First, accrediting authority visits to, and inspection of, laboratories for
compliance with accrediting can help to discourage sloppy or fraudulent conduct. Second,
the need for accreditation will encourage laboratory management to be more vigilant
about systems to guard against such misbehavior. Third, accrediting agency supervision
may mean that where misconduct occurs, it will likely be discovered and punished faster
and more frequently. Fourth, any serious accreditation process requires some program of
proﬁciency testing.152
Blind testing, in which neither the person being tested nor the one administering the test
knows the correct result, is likely to avoid tainting test results and to raise the chances
of uncovering ﬂaws, not just in the procedures followed, but in the trustworthiness of
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the underlying scientiﬁc principles and techniques in the ﬁrst place. For example, if an
examiner is asked to determine whether sample hair matches hair taken from a suspect,
only the test designers should know which hair is a match and which is not. Examiners
in many laboratories now also routinely offer inconsistent opinions with high error
rates, calling into question the reliability and validity of the hair comparison technique
itself. Blind testing can be costly and difﬁcult, but it offers greater assurance than do
some alternatives, such as regular external case audits combined with enforced quality
assurance guidelines.153 These alternatives might be appropriate in other contexts, but
not in capital cases.
Correspondingly, laboratories’ accreditation standards should prohibit forensics labs
from letting their results from inadequately scientifically supported techniques be
used in death penalty cases.154 The Supreme Court’s decision in Daubert specified a
number of factors to be considered in determining the reliability of scientific evidence.
In particular, said the Court, “Scientific methodology today is based on generating
hypotheses and testing them to see if they can be falsified; indeed, this methodology
is what distinguishes science from all other fields of human inquiry.”155 Techniques
that have not been subjected to and survived such testing by neutral bodies are thus
suspect. Similarly, the Court emphasized the importance of an opportunity for open
criticism and debate about the wisdom of scientific theories and techniques within
qualified communities:
[S]ubmission to the scrutiny of the scientiﬁc community is a component of
good “science,” in part because it increases the likelihood that substantive ﬂaws
in methodology will be detected. The fact of publication (or lack thereof)
in a peer reviewed journal thus will be a relevant, though not dispositive,
consideration in assessing the scientiﬁc validity of a particular technique or
methodology on which an opinion is premised.156
Although the Daubert Court considered testing and peer review to be only “factors”
in the admissibility decision, their centrality to determining the trustworthiness of
scientiﬁc and other expert techniques would seem to demand their presence whenever
use of such techniques may condemn a person to death. One leading commentator
has argued that some signiﬁcant degree of ﬂaws in expert methodologies should be
tolerated because often the only alternative is even less reliable eyewitness testimony.157
Whatever wisdom this observation may hold in other cases, it is unwise counsel in death
penalty cases. The cumulative effect of ﬂawed eyewitness testimony and ﬂawed forensics
may be what persuades a jury beyond a reasonable doubt and sends an individual to
the death chamber. Moreover, as discussed earlier, ﬂawed forensics can themselves taint
eyewitness identiﬁcations. These are unacceptable risks when execution is an option.
Indeed, the degree of the risk is revealed both by the mistaken convictions in death
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cases in which bad forensics played a role, and by the many inadequately tested forensic
techniques routinely making their way into the criminal courtroom.158 Independent
entities, like the National Academy of Sciences, have conducted reviews on voice prints,
DNA, the polygraph, and bullet comparison lead analysis, and provide a model for the
sort of study that should be required.159
The courts alone are an inadequate safeguard. The Daubert test itself is multi-factored and
governed by a standard of appellate review extraordinarily deferential to trial court decisions,
promoting inconsistent holdings and undermining the incentive Daubert advocates hoped
the decision would create for rigorous screening of ﬂawed expert techniques.160 Furthermore,
according to one expert, lower courts have in practice generally applied Daubert to favor free
admissibility of prosecution forensic experts while excluding defense experts.161 Preventing
the use of ﬂawed data through safeguards at the source is needed.
A truly rigorous mandatory accreditation program for forensic laboratories would include
a mandatory certiﬁcation procedure for individual examiners. Current certiﬁcation
programs, where they exist, are often lax.162 The American Academy of Forensic Sciences
Forensic Specialties Accreditation Board has begun to accredit certifying organizations.
Any sound certiﬁcation program would require “demanding written examinations,
proﬁciency testing, continuing education, recertiﬁcation procedures, an ethical code, and
effective disciplinary procedures . . . .”163 If it makes sense to accredit labs as organizations
to ensure the quality of their work, it makes equal sense to certify the quality of their
individual employees and to make the laboratories’ continued accreditation contingent
on adequate efforts to ensure such certiﬁcation.
Finally, accreditation can help to promote the formulation of standard technical procedures
and of systems to ensure compliance with those procedures. It might be said that “any
laboratory without such [standard] protocols cannot be called a ‘scientiﬁc’ laboratory.”164
Indeed,
[a]ll ASCLAD/LAB accredited laboratories must maintain written copies of
appropriate technical procedures. These protocols include descriptions of
sample preparation methods, controls, standards, and calibration procedures,
as well as discussions of precautions, sources of possible error, and literature
reference. A representative number of laboratory reports are subjected to peer
review to ensure that the conclusions of the examiners are reasonable and
within the constraints of scientiﬁc knowledge. This technical review assures
that laboratory protocols are being utilized. All new technical procedures must
be scientiﬁcally validated before being used in casework.165

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For all these reasons, this Committee recommends that forensics laboratories generating
results to be used in death penalty cases be subject to stringent accreditation requirements,
including mandating that such labs employ only certiﬁed technicians and examiners, do
not release in capital cases the results of insufﬁciently scientiﬁcally validated techniques,
articulate and enforce written standard protocols, and require proﬁciency testing. Courts
should exclude prosecution forensics evidence in death penalty cases where the source
laboratories have not been so accredited.

RECOMMENDATION 22: Forensic Laboratories Should be Audited
in Cases of Egregious Negligence or Fraud.
Every forensics laboratory should have in place a procedure for triggering an audit of
all death penalty cases handled by any of its examiners when there is reason to believe
that the examiner has engaged in an egregious act of forensic negligence or in any act
of forensic fraud in any case (whether capital or not) that the examiner handled during
his or her professional career. (2005 Update.)

COMMENTARY
There is good reason to believe that at least some laboratory technicians engage in
repeated instances of negligence or misrepresentation. As the cases of Fred Zain and Joyce
Gilchrist, discussed above, illustrate, this conduct can do substantial damage. According
to one commentator, “with depressing regularity, respected forensic scientists will concede
their own knowledge of instances of ‘dry-labbing’ — faking of data by former colleagues
and employees that they have encountered in their own careers.”166 Most recently, as noted
above, the independent investigation of the Houston crime lab revealed several cases of
“dry-labbing” and other questionable practices. 167 Other offenders have included medical
examiners who distort autopsy results in murder cases; a North Carolina footprint expert
who faked results in cases throughout North America during a ten-year career; and an
FBI technician who manipulated test results to prove the guilt of any suspect whom he
discovered to be African-American.168 Given these revelations, and “[b]ecause it is safe to
assume that most of the forensic science fraud that occurs goes undetected, the amount of
fraud that has been revealed bears disturbing implications for any estimate of the amount
of fraud that passes without notice.”169 The implications for death penalty prosecutions
relying on forensic sciences are particularly unsettling.
Career criminal units in large metropolitan prosecutors’ ofﬁces focus resources on
a small cadre of repeat offenders who account for a disproportionate share of the
number and severity of local crimes. The larger time and ﬁnancial investments made
in catching repeaters are thought to more than justify the added out-of-pocket expense.
By a similar logic, focusing additional resources on repeat forensics offenders, whether
they err by design, incompetence, or inattention, promises ample payoffs in reducing
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wrongful convictions and increasing the accuracy of the system. It is for this reason
that the Committee recommends audits of all death penalty cases handled by forensics
examiners who prove to have been fraudulent or egregiously negligent in any case of any
sort (whether death eligible or not). Such an audit would reveal whether a particular
examiner is indeed a repeat offender, creating reason to question the truth and reliability
of his or her testimony in every case.
This recommendation stresses an audit of particular examiners, as opposed to the more
common audits of organizations. Auditors collect, verify, and disseminate information to
promote organizational honesty, efﬁciency, and effectiveness.170 There are many types of
audits, including compliance audits to ensure the consistency of organizational behavior
with legal standards, and operational audits, which study a unit of an organization to
measure both its effectiveness and efﬁciency in meeting its goals and responsibilities.171
Both sorts of audits of police crime labs can and have been done.172
Conducting such organizational audits is a daunting task. Those types of audits will be
time-limited, not covering an organization’s entire history. Moreover, auditing all relevant
organizational information is often prohibitively costly. Most audits of large organizations
therefore engage in statistical sampling believed to be representative of wider operations.173
Furthermore, audits are done periodically, during which time ongoing errors or deception
may go undetected.
Identifying repeat forensics offenders requires something more: a complete audit of every
death penalty case handled by a forensics examiner for whom plausible, credible evidence
has suggested that he or she has engaged in even one act of fraud or other deception, or
one egregious act of negligence in the course of performing his or her professional duties.
The costs of an error — executing an innocent person — are too great to accept anything
less. At the same time, such an error means that the true wrongdoer who has committed
the most egregious of criminal acts against society — acts meriting the death penalty
— goes free, a similarly unacceptable cost.
The cases of Fred Zain, Joyce Gilchrist, and the Houston crime lab demonstrate why
such audits are essential. Diligent defense counsel and innocence projects may uncover
plausible evidence of examiner wrongdoing in some individual cases. Because only death
penalty cases would be examined pursuant to this recommendation, and, even then, only
where there is credible evidence of a problem forensic analyst, the ﬁnancial, time, and
opportunity costs of the audit are low relative to the potential gains.174 The risk that an
examiner may be a repeat problem makes the desirability of a thorough audit even greater.
Only a thorough audit of all death penalty cases handled by such examiners, triggered
by what the lawyers or others have discovered about particular cases, can reveal the full
extent of the systemic harms done by these examiners.
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Though this Committee does not recommend any particular mechanism for
implementing examiner audits, and leaves such details to each individual organization,
the need for such a mechanism is clear. The Zains and the Gilchrists of the forensics
world must do no more harm to the innocent, nor continue to aid the guilty in
escaping justice.

VIDEOTAPING AND RECORDING OF CUSTODIAL
INTERROGATIONS
RECOMMENDATION 23: Interrogations of Homicide Suspects Should
be Videotaped or Digitally Video Recorded Whenever Practicable.

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When a recording is made of a custodial interrogation, the original recording
should promptly be downloaded and maintained by procedures adequate to
prevent tampering and to maintain a proper chain of custody.
Only in the unusual case should it be considered impracticable to videotape or
digitally video record a custodial interrogation when it occurs at a police facility
or other place of detention.
Recording should include not merely the statement made by the suspect after
custodial interrogation, but the entire custodial interrogation process.
Where videotaping or digital video recording is impracticable, some alternative
uniform method for accurately recording the entire custodial interrogation
process, such as by audiotaping, should be established.
Police investigators should carry audiotape recorders for use when conducting
custodial interrogations of suspects in homicide cases outside the police station or
in other locations where video recording is impracticable, and all such interviews
should be audiotaped.
Where neither visual nor audio recording is practicable, any statements made
by the homicide suspect should, at a later time, be repeated to the suspect on
videotape or by digital video recording, and his or her comments recorded.
Whenever only an audio recording is made, the state should bear the burden of
proving by a preponderance of the evidence, at any pre-trial hearing or at trial,
that videotaping or digital video recording of the entire custodial interrogation
process was impracticable. If there has not even been an audio recording made,
the state should further bear the burden of proving by a preponderance of the
evidence that audio recording or some other uniform method of complete and
accurate recording was impracticable.
Video or audio recording of the entire custodial interrogation process should not
require the suspect’s permission.
Only a substantial violation of these rules should require suppression of a resulting
statement at trial. Any violation of these rules should be presumed substantial
unless the state proves the opposite by a preponderance of the evidence.
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A violation in all cases should be deemed substantial if one or more of the
following paragraphs is applicable:
4 The violation was gross, willful, and prejudicial to the accused. A violation
shall be deemed willful, regardless of the good faith of the individual ofﬁcer,
if it appears to be part of the practice of the law enforcement agency or was
authorized by a high authority within it. A violation shall also be deemed
willful if it was caused by a police department’s failure adequately to train its
ofﬁcers and other relevant personnel, or by its failure adequately to provide
ofﬁcers and other relevant personnel with properly maintained and adequate
equipment to comply with this recommendation.
4 The violation was of a kind likely to lead accused persons to misunderstand
their position or legal rights, and to have inﬂuenced the accused’s decision
to make the statement, such as where the accused waives his or her right to
videotaping because police contributed to the accused’s belief that an untaped
oral statement could not be used at trial.
4 The violation created a signiﬁcant risk that an incriminating statement may
have been untrue, such as may happen where the secrecy of the interrogation
process encourages police to use interrogation methods that create a
signiﬁcant risk of false confessions in a department with a proven record of
using such ﬂawed methods.
In determining whether a violation not covered by the previous conditions is
substantial, the court should consider all the circumstances including:
4 the extent of deviation from lawful conduct, for example, by videotaping
only a small portion of the interrogation process (major deviation) versus
videotaping most, but not all, of the process (minor deviation);
4 the extent to which the violation was willful;
4 the extent to which exclusion would tend to prevent violations of this
recommendation;
4 whether there is a generally effective system of administrative or other
sanctions that makes it less important that exclusion be used to deter such
violations in the future;
4 the extent to which the violation prejudiced the defendant’s ability to support
a motion to exclude a confession, or to defend himself or herself in the
proceeding in which the statement is sought to be offered in evidence against
the defendant;
4 whether the violation made it particularly difﬁcult to prove the use of
coercive investigation techniques where adequate alternative forms of
corroborating evidence are unavailable and a defendant has made out a
prima facie case of coercion.
Whenever there is a failure for any reason to videotape or audiotape any portion
of, or all of, the entire custodial interrogation process, and the statement was
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not otherwise suppressed, a defendant should be entitled, upon request, to a
cautionary jury instruction, appropriately tailored to the individual case, noting
that failure; permitting the jury to give it such weight as the jury feels that it
deserves; and further permitting the jury to use it as the basis for ﬁnding that the
statement was either not made or was made involuntarily. (2005 Update.)

COMMENTARY
The Beneﬁts of Videotaping

Numerous jurisdictions nationwide have now employed videotaping of confessions, and
have concluded that the practice promotes effective law enforcement, increases respect
for and understanding of police practices, lessens costs such as retrials, and increases the
accuracy of criminal proceedings.
Thomas Sullivan, Co-Chair of the Illinois Commission on Capital Punishment and
this country’s leading expert on videotaping of interrogations, has conducted extensive
research on this practice, contacting over 350 law enforcement agencies located in 38
states that record full interrogations. According to Sullivan, “[m]ost record in all serious
felony investigations,” and the positive results of recording are clear:
The use of recording devices, even when known to the suspect, does not
impede ofﬁcers from obtaining confessions and admissions from guilty
suspects . . . . Police are not called upon to paraphrase statements or try
later to describe suspects’ words, actions, and attitudes. Instead, viewers and
listeners see and/or hear precisely what was said and done, including whether
suspects were forthcoming or evasive, changed their versions of events, and
appeared sincere and innocent or deceitful and guilty.
Experience shows that recordings dramatically reduce the number of defense
motions to suppress statements and confessions . . . . Ofﬁcers are spared from
defending themselves against allegations of coercion, trickery, and perjury
during hostile cross examinations. Trial and appellate judges, who repeatedly
have been forced to listen to the prosecution and defense present conﬂicting
versions of what took place during unrecorded custodial questioning, also
favor recordings.
. . . . An electronic record made in the station interview room is law enforcement’s
version of instant replay.
Jurors are coming to expect recordings when questioning takes place in police
station interview rooms. When no recordings are made, defense lawyers are
quick to argue that unfavorable inferences should be drawn.
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Most costs come from the front end, and they diminish once the equipment
and facilities are in place and training has been given to detectives. In contrast,
savings continue so long as electronic recording continues.175
Other prophylactic methods have proved ineffective in achieving these goals. One
reason that Miranda rights and the Due Process Clauses are relatively ineffective is that
courts and legislatures have paid inadequate attention to promoting the accuracy of the
suppression court’s fact-ﬁnding.176 As noted above, police and criminal defendants may
tell very different stories about what happened in the interrogation room, raising difﬁcult
credibility questions. Moreover, a suppression judge cannot hear the interrogating ofﬁcers’
tone of voice, see the suspect’s face during questioning, or feel the sense of sustained
pressure from hour-upon-hour of incommunicado interrogation. Videotaping or similar
recording of an entire interrogation is one solution to this problem and offers a number
of collateral beneﬁts:
Videotaping police interrogation of suspects protects against the admission of false
confessions for at least four reasons. First, it provides the means by which courts can
monitor interrogation practices and thereby enforce the other safeguards [such as
the giving of Miranda warnings and the prohibition against coercive questioning
techniques]. Second, it deters the police from employing interrogation methods
likely to lead to untrustworthy confessions. Third, it enables courts to make more
informed judgments about whether interrogation practices were likely to lead to
an untrustworthy confession. Finally, mandating this safeguard device accords
with sound public policy because the safeguard will have additional salutary
effects besides reducing untrustworthy confessions, including more net beneﬁts
for law enforcement.177
Video recording encourages police to continue investigating until they ﬁnd the true
perpetrator, thus enhancing public safety. Videos can also be used to improve the training
of ofﬁcers in proper interrogation techniques, further reducing the risks of error. All these
beneﬁts accrue, however, only if all interrogation efforts in a case are taped, not merely
the ultimate confession, as the New York Times explained in an article about the Central
Park Jogger case:
By the time ﬁve teenage suspects gave the videotaped confessions that helped
convict them in the 1989 rape of the Central Park jogger, they had been through
hours of unrecorded interrogation . . . . [T]he exoneration of the young men begs
for reforming the way suspects are lead [sic] to rehearsed statements of guilt.
According to the Innocence Project at the Cardozo School of Law at Yeshiva
University, 23 percent of the people who are exonerated after conviction turn
out to have falsely confessed to the crime. Many of these confessions were
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taped and played as compelling evidence to a jury. As the jogger case and other
reversals demonstrate, innocent people can be led into confessions. Their
questioners — wittingly or not — also often provide them with details that
would seem to be known only to the real criminal.178
Causes of False Confessions

According to Thomas Sullivan, the number of false confessions is very small, and the
number of those false confessions that are the result of police coercion or other misconduct
is much smaller. Mr. Sullivan believes, and this Committee agrees, that the vast majority
of police ofﬁcers act in good faith and according to the law.
Academic literature does, however, describe many instances in which innocent persons
have confessed to crimes that they did not commit.179 Those confessions routinely
result in convictions because of the dramatic impact at trial of a suspect who seemingly
openly admits guilt to the police. Indeed, one research team concluded that “placing a
confession before a jury is tantamount to an instruction to convict . . . .”180 Estimates
of the extent to which false confessions contribute to wrongful convictions vary, with
some estimates attributing close to one-fourth of all convictions of the innocent partly
to false confessions.181
The sorts of interrogation tactics likely to result in false confessions probably occur
most often in the investigation of high proﬁle crimes, especially of potential death
penalty cases.182 In such cases, police have both more time to investigate and face greater
pressure to make an arrest.183 One of the most conservative early estimates concluded
that a police-induced false confession contributed to at least one out of every ten
wrongful convictions in potential capital cases.184 The current ﬁgure is likely far higher
given the modern estimates that ﬂawed confessions play a role in nearly one fourth of
all wrongful convictions.
Even when the police do not use psychological trickery or high-pressure tactics, isolated
suspects facing lengthy interrogations can feel compelled to confess. Indeed, such
compulsion has been documented in far less frightening circumstances than interrogation
by police in a criminal case. Law professor Cass R. Sunstein explains:
Consider the possibility of false confessions. An understanding of compliance
suggests that the risk of false confessions is quite serious.
An illuminating experiment . . . establishes the point. Subjects were told to do some
work on a computer; they were also told not to press the “Alt” key, because if they did
so the computer would crash. No subject pressed that key. But at a certain moment,
the computer crashed anyway, and subjects were accused by the experimenter of
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having pressed the “Alt” key. Subjects were then asked to confess to the mistake, with
the punishment being a call from the experiment’s principal experimenter. Nearly
70 percent of subjects falsely confessed! When confronted with made-up evidence
— a false witness claiming to have seen the subject press the key — over 90 percent
of subjects confessed.185
In a real life criminal case, of course, the consequences of confession are far greater, and
“supportive subcommunities — family members, friends, even lawyers — often provide
protection against false confessions.”186 Indeed, the experimental research demonstrates
that such support can be a powerful counterforce to the compulsion of authority ﬁgures
such as the police.187 Nevertheless, interrogations often take place with suspects isolated
from both lawyers and intimates. There is good reason to believe that signiﬁcant numbers
of ordinary people under such circumstances “can be led to agree that they have engaged
in misconduct, even serious misconduct, when they are entirely innocent.”188
Empirical studies of false confessions in serious cases are consistent with this
conclusion.189 Those studies reveal that the risk of the innocent confessing is highest for
those most vulnerable to suggestion or where deceptive or manipulative interrogation
techniques are used. For example, confessions by individuals with mental retardation
or similar disabilities or by juveniles (as noted in Chapter II), and those stemming
from lengthy interrogations, threats of punishment or promises of leniency, threats of
adverse consequences to a friend or loved one, or from police misrepresentations about
the nature and quantity of the evidence of the suspect’s criminal involvement, all raise
signiﬁcant risks of false acknowledgements of guilt.190
Miranda v. Arizona191 acknowledges the risk of compelled confessions in “custodial
interrogations” — those of a suspect held “incommunicado” in a “police-dominated
atmosphere.” Accordingly, Miranda creates a right to counsel during such interrogations
and mandates that police warn suspects of their rights to counsel and to silence. Suspects
routinely waive these rights, however, with a signiﬁcant body of empirical research
demonstrating that police have developed a wide range of effective tactics for encouraging
Miranda waivers.192 In one commentator’s words, Miranda warnings have become weak
rote recitations, “mere piece[s] of station house furniture.”193
Nor do the Fifth and Fourteenth Amendment Due Process Clauses, prohibiting admission
at trial of “involuntary” confessions obtained by the police, currently offer much protection.
Those clauses, as recently understood by most courts, set a low standard of voluntariness,
turning on a case-by-case weighing of a wide range of circumstances concerning what
tactics the police use and how able the individual suspect was to resist those tactics.194
Moreover, a ﬁnding of a valid waiver of Miranda rights generally automatically renders
the confessions voluntary in the eyes of most judges.195
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The Relative Costs of Videotaping

Opponents of videotaping worry about its expense, in both out-of-pocket costs, such as
purchasing and storing videotape, and its cost in terms of officer time and energy. New
York Police Commissioner Raymond Kelly cautions that costs might be particularly
acute in very large cities: “With 220,000 to 250,000 arrests each year,” he has said,
“[t]he logistics of it are mind-boggling for an agency of this size.”196 Others complain
that small departments will be particularly stressed because of their minimal staffing
and funding. All these opponents also worry that videotaping is not feasible under
certain circumstances, for example, when information must be quickly obtained from
a suspect at a crime scene to prevent further harm, when officers (especially in rural
areas) cannot easily reach a location where a camera is available, or when suspects
blurt out confessions without prompting. Several commentators worry as well that
videotaping will discourage even guilty suspects from confessing and that juries will
be offended by perfectly legal questioning techniques involving some permissible
forms of police officer deception. Videotaping many hours of interrogation also
arguably imposes an onerous burden on the judicial process because prosecutors,
defense counsel, and judges must spend enormous amounts of time reviewing the
tapes. Finally, the suppression remedy, opponents say, will mean the loss of too many
valid confessions where there is a purely technical error, such as a small portion of
the entire interrogation process that escaped taping, or if an officer simply mistakenly
fails to tape the interrogation at all or found it too hard to do so despite the officer’s
diligent efforts.197
The out-of-pocket costs of video recording are often far less, however, than the
financial costs of not recording, including lengthy suppression motions, large damage
judgments by the wrongly convicted, expensive investigations into alleged police
abuses, and re-trying cases where there is other credible evidence of guilt but the
confession is seriously tainted. State and federal funding efforts can help to reduce
the burden on both small and large departments alike. The declining cost of digital
video recording methods, which store images on a computer, can also eliminate the
expense of storing videotapes.
Jurisdictional Experience

Experience in localities that have used videotaping also demonstrates that, though police
may sometimes have a brief adjustment period, they readily learn how to interrogate
effectively without hampering the willingness of suspects to talk. These jurisdictions have
demonstrated that, in police facilities or other places of detention, video recording can
also be undertaken without the suspect’s knowledge and that videotaping reduces costs to
the state by discouraging lengthy “ﬁshing expedition” cross-examinations and frivolous
suppression motions. For reasons like these, the jurisdictions that have used videotaping
uniformly praise the procedure.
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In Minnesota, where many agencies had reservations about a videotaping mandate imposed
there by judicial decision, law enforcement now enthusiastically embraces the process.198
Amy Klobuchar, the lead prosecutor in Minnesota’s Hennepin County, explains: “There
was concern that it would wreak havoc on the interrogation process, and it turns out that
the opposite is true.”199 Ms. Klobuchar continues: “Cops and prosecutors have found it to
be very useful in obtaining convictions and warding off claims of police brutality.”200 She
also sees no negative impact on jury attitudes toward police tactics: “Our lawyers have
them explain what the rules are, and the juries understand. We think it’s helped to build
up the credibility of the police.”201
Likewise, the Sheriff of Kankakee County, Illinois, in testimony before an Illinois House
Task Force, explained, “The biggest apprehension was that we would lose a lot of confessions
. . . . [W]e’ve never lost a motion to suppress since we’ve started video interviewing. So it’s
an excellent tool. I encourage you to use it.”202 Jim Ryan, while serving as Illinois Attorney
General, wrote:
Police agencies that are already using videotape in Illinois report almost uniformly
agreeable results, ﬁnding that videotaping provides the most accurate method
of proving what was said, defeats claims of coercion or confusion and increases
professionalism by allowing peer review of, and training in, methods of questioning
after interviews are completed. Videotaping also clearly protects the rights of
suspects as well.203
The Illinois Capital Punishment Commission Report recommended videotaping in
homicide cases, and the Illinois legislature recently passed a statute requiring such
videotaping.204 This Committee’s recommendation indeed draws signiﬁcantly, but
not entirely, from the Illinois Commission effort, although that effort did not address
the remedy question, as the Committee does. Maine, New Mexico, and the District of
Columbia have also enacted laws requiring recording.205 Courts in Alaska, Minnesota,
and Wisconsin have also imposed recording requirements.206 In Massachusetts, the
Supreme Judicial Court ordered that courts give juries a special instruction when
interrogations are unrecorded.207 To avoid the instruction, the Massachusetts State
Police Department has drafted a policy statement recommending that the police should
electronically record all custodial interrogations whenever possible.208 The highest court
in New Jersey ordered a commission to study the issue. The report, issued April 15,
2005, concluded that confessions should be recorded but that the court might not have
the power to issue such an order. The commission recommended that courts instruct
juries about any failure to record. This instruction is even more stringent than the one
ordered by the Massachusetts court.209

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Other police departments that have embraced video, or at least audio, recording of
interrogations include Denver, Boulder, Colorado Springs, and Ft. Collins, Colorado;
San Diego County, California; many Connecticut police departments; Broward County
and Floral Springs, Florida; Prince George’s County, Maryland; Las Cruces, New Mexico;
Aberdeen, South Dakota; and Austin, Texas.210 The House of Delegates of the American
Bar Association was so impressed by this positive experience that in 2004 it adopted
a resolution urging law enforcement agencies to videotape the entirety of custodial
interrogations or, where impractical, to audiotape them.211
Cost-Reduction, Suppressing Confessions in Court, and Jury Instructions

Under this Committee’s recommendation, moreover, videotaping, and thus the cost of
doing so, is limited to homicide cases because of their potential to unfold into death
penalty cases. Furthermore, the Committee recognizes that video recording is sometimes
impracticable, either because of cost or because of the unavailability of ready access to
video equipment. Where that is so, the Committee recommends using next-best recording
methods, starting with audio recording. Clear guidance is also given to ofﬁcers about
when to record because that obligation applies to any “custodial interrogation,” a familiar
term since the Supreme Court used it in Miranda v Arizona in 1966.
Suppressing a confession that is not videotaped is, in this Committee’s view, sometimes a
necessary remedy. Without that remedy, ofﬁcers will have little incentive to comply with
a mandate to videotape. Nevertheless, suppression should not always, or automatically,
be the result when the videotaping requirement is violated. For example, if the violation
was accidental and only a small portion of the interrogation process was not taped, and
if there is no reason to believe that there is a signiﬁcant risk that the interrogation was
untrue, suppression would seem an extreme remedy. The ALI’s Model Code of PreArraignment Procedure, which the Committee adopts virtually verbatim, uses a multifactor balancing test for determining whether to suppress confessions that are not
videotaped where practicable. Under that test, suppression is reserved for “substantial”
violations. Substantiality is automatically shown by a violation that is “gross, willful, and
prejudicial to the accused,” or likely to lead the accused to misunderstand his or her rights
and inﬂuence the accused’s decision to make a statement, or creates a signiﬁcant risk that
the accused’s statement is false. In all other situations, substantiality is determined by
weighing all the circumstances, including the likely deterrent effect of suppression, the
degree of willfulness, and the availability of effective alternative administrative remedies.
This test provides one helpful way to promote police compliance without unduly
burdening the justice system.

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However, this Committee has altered the wording of the original ALI Code to promote
greater clarity, rather than to effect any signiﬁcant change in substance, and to ﬁll gaps
in that Code. In particular, because videotaping of the entire interrogation process in
homicide cases should be the norm, this Committee has placed on the state the burden of
proving by a preponderance of the evidence that videotaping, or, where applicable, nextbest recording methods such as audiotaping, were impracticable, and that suppression
is not an appropriate remedy in an individual case. These are matters about which
the ALI Code is silent.212 Moreover, this recommendation expressly states that a police
department’s failure to provide its ofﬁcers and other personnel with adequate training
and properly maintained equipment (such as videocameras or audiocassette recorders)
constitutes a willful violation of this recommendation, even if the individual ofﬁcer acted
in good faith.213 Any contrary position would permit the exception to swallow the rule.
On the other hand, if equipment malfunctions despite proper maintenance and training,
that malfunction would not alone render the violation willful.
Furthermore, because any failure to tape inherently prejudices a defendant’s ability to
litigate a suppression motion, this Committee’s recommendation adds to the ALI Code
a cautionary instruction to the jury, when the statement is not otherwise suppressed,
to consider the failure to videotape in deciding whether a confession was made or, if
made, whether it was voluntary. This instruction should be available even when the police
are not at fault, that is, even when taping the entire custodial interrogation process was
indeed impracticable, because, regardless of the care or good faith of the state, the absence
of taping creates an undue risk of error in the fact ﬁnding process.214 Of course, such an
instruction may need to be tailored to the facts of an individual case. For example, if there
is evidence from which a reasonable jury might conclude that the police willfully violated
the taping rule to hide details of the interrogation process, a stronger instruction might be
needed. Correspondingly, if only a small portion of the process was not taped and there is
evidence from which a reasonable jury might conclude that this failure was inadvertent,
and no speciﬁc evidence has been offered of inappropriate interrogation tactics occurring
during the taping gap, a jury might also be instructed to take those matters into account
in determining the weight of the failure to tape completely.
In short, especially in the death penalty context, the beneﬁts of video and digital recording
of the entire interrogation process far outweigh its costs and will help to promote fairness,
accuracy, public safety, and public conﬁdence in the system of justice.215

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CHAPTER VII:
DUTY OF JUDGE AND
ROLE OF JURY
SUMMARY
24.

Appellate courts reviewing capital convictions for sufﬁciency of the evidence should
reverse if a reasonable jury could not have found guilt beyond a reasonable doubt.
(2005 Update.)

25.

If a jury imposes a life sentence, the judge in the case should not be allowed to
“override” the jury’s recommendation and replace it with a sentence of death.

26.

The judge in a death penalty trial should instruct the jury that if any juror has
a lingering doubt about the defendant’s guilt, that doubt may be considered as a
“mitigating” circumstance that weighs against a death sentence.

27.

RECOMMENDATION 24: Courts Should Apply a More Stringent
Standard for Appellate Review of Evidentiary Sufﬁciency.
The current standard for appellate review of evidentiary sufﬁciency in criminal cases
is inappropriate in capital cases. It should be replaced with a standard requiring
reversal if a reasonable jury could not have found guilt beyond a reasonable doubt.
(2005 Update.)
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COMMENTARY
The degree to which appellate courts defer to lower court decisions in capital cases varies
according to the standard of review that they apply. Appellate courts are typically extremely
deferential to the decisions of a jury in a criminal case. Rather than applying a de novo
standard of review (in which the appellate court overturns the lower court’s decision if
it would not have reached the same result) or the standard of review widely used in civil
cases (whether a reasonable jury could have reached the same result), in criminal cases
“the relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.”1 This standard, derived from the Supreme Court’s
decision in Jackson v. Virginia, traditionally is justiﬁed in part by the presumption that
the jury occupies the best position from which to weigh facts and evaluate the credibility
of witnesses, and in part by fears that aggressive appellate review might erode the
constitutional right to a jury trial. The Jackson standard applies as a matter of due process
when a criminal defendant appeals a conviction on the ground that the jury’s verdict was
not supported by proof beyond a reasonable doubt. The majority opinion states that:
[T]he critical inquiry on review of the sufﬁciency of the evidence to support
a criminal conviction must be . . . to determine whether the record evidence
could reasonably support a ﬁnding of guilt beyond a reasonable doubt. But
this inquiry does not require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt . . . . This
familiar standard gives full play to the responsibility of the trier of fact fairly to
resolve conﬂicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Once a defendant has been found
guilty of the crime charged, the factﬁnder’s role as weigher of the evidence
is preserved through a legal conclusion that upon judicial review all of the
evidence is to be considered in the light most favorable to the prosecution. The
criterion thus impinges upon ‘jury’ discretion only to the extent necessary to
guarantee the fundamental protection of due process of law.2
Even though the Jackson “mere rationality” standard of review is based on due process
concerns, it describes only what is minimally necessary to meet the constitutional
requirement that the prosecution prove all elements of a crime beyond a reasonable
doubt. A less deferential standard would still protect the jury’s role, while at the same
time ensuring the defendant’s fundamental constitutional rights.
Because Jackson deﬁnes only a minimum, courts are free to go beyond it to safeguard the
integrity of their processes. They should do so. The Jackson standard has been criticized
for protecting defendants only against irrational decisions, and not wrong ones.3 Jon O.
Newman, distinguished chief judge of the United States Court of Appeals for the Second
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Circuit, stated in a well-founded criticism: “The adoption of this novel standard was
ﬂawed at the outset.”4 In the context of capital procedures, which “overproduce” erroneous
convictions, the Jackson standard of review is even more troubling.5
The Supreme Court itself has recognized that “death is different,” and that some procedures
should be modiﬁed to reﬂect that reality.6 Less deference on appeal would likely reduce
the number of wrongful convictions in capital cases. As committee member Scott Turow
has noted, capital cases — with their heightened emotions and complexity — present
unique impediments to accurate jury ﬁndings:
[T]he factor that is the greatest snare for the innocent is the nature of the cases
themselves . . . because it is these extreme and repellent crimes that provoke the
highest emotions — anger, especially, even outrage — that in turn make rational
deliberation problematic for investigators, prosecutors, judges, and juries . . . .7
The standard for review of juries’ fact-ﬁnding decisions in these highly emotional cases
should not be the same as in a case in which the defendant is accused of stealing candy
from a ﬁve and dime. Currently, however, appellate courts are asked in both kinds of cases
to assess whether any rational jury could have reached this conclusion (the standard itself
emphasizing the word “any”), and they must take all evidence “in the light most favorable
to the verdict,” meaning that they must draw all inferences from the evidence and resolve
all credibility questions in a way that supports the jury’s decision. An appellate judge may
not set a verdict aside despite the judge’s nagging doubts about an unsavory state witness
or the unlikeliness of the prosecutor’s theory about motive.8
Whether such deference is suitable in some non-capital cases (a question beyond this
Committee’s purview), it is not appropriate in capital cases.9 A more meaningful standard
of review would not only enable appellate judges to correct jury mistakes, it would also
“encourage individual responsibility [for capital decisions] among appellate judges,” an
outcome that would enhance the “moral foundation for capital punishment.”10
Many available formulas exist to replace the Jackson v. Virginia standard in capital cases.
We recommend that in capital cases, courts adopt a standard that is already widely used
in civil cases: appellate courts should “review sufﬁciency [of evidence] determinations
in criminal cases by the more traditional ‘reasonable jury’ test . . . a test that asks only
whether a reasonable jury could ﬁnd guilt beyond a reasonable doubt.”11 This standard
represents more than just a semantic change from the Jackson standard. As Judge Newman
explained, this is “the traditional test for determining sufﬁciency of evidence — namely,
whether the law’s ubiquitous reasonable person, in this case a reasonable jury, could ﬁnd
the matter proven by the requisite degree of persuasion, in this case beyond a reasonable
doubt.” By contrast, the Jackson standard “shifts the emphasis away from the reasonable
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jury and conjures up the image of an endless number of random reasonable juries, risking
creating the misleading impression that just one of these juries need be persuaded beyond
a reasonable doubt.”12

RECOMMENDATION 25: Judges Should be Prohibited from Overriding
a Jury’s Recommendation of a Life Sentence to Impose a Sentence
of Death.
Judicial override of a jury’s recommendation of life imprisonment to impose a sentence
of death should be prohibited. Where a court determines that a death sentence would
be disproportionate, where it believes doubt remains as to the guilt of one sentenced
to death, or where the interests of justice require it, the trial court should be granted
authority to impose a life sentence despite the jury’s recommendation of death.

COMMENTARY
Although the Supreme Court has determined that judicial override of a jury’s
recommendation that the defendant not be sentenced to death is constitutional,13 the
jury is uniquely equipped to make the judgments that are understood to be critical
to the imposition of the death sentence. The jury, which is comprised of members,
and serves as the representative, of the community, is best positioned to “express the
conscience of the community on the ultimate question of life or death.”14 It can properly
express the community’s outrage, indicating by its sentencing recommendation that
the perpetrator has lost his or her moral entitlement to live. Because the decision
whether to impose death remains substantially a moral decision despite efforts to
impose legal precision on it, a jury determination is particularly appropriate. The jury,
as opposed to a single government official, may be most likely to avoid the danger of
an excessive response to the always horrible act of intentional homicide.15 Indeed, in
states where judges are elected and subjected to tough-on-crime politics that typically
equate electoral success with unwavering support for the death penalty, juries may be
the voice of reasoned moderation.
Of the thirty-eight states that have the death penalty, only four — Alabama, Delaware,
Florida, and Indiana — continue to permit judicial override of jury recommendations.
Supporters cite two justiﬁcations for permitting judicial override of jury recommendations:
ensuring consistency in sentencing and correcting sentence recommendations by juries
that are excessively harsh or based on emotion or desires for vengeance. In those states
that have employed judicial override extensively, there is no evidence that consistency in
results has been achieved. More troubling, the predominant use of jury override, although
differing among states, has been for courts to impose death after juries recommend a life
sentence. In Florida and Alabama, the vast majority of overrides have been to impose
death, an outcome that has occurred over 165 times in Florida and over sixty-ﬁve times
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in Alabama. In Indiana, although slightly favoring death, judicial overrides have been
almost equally split between death and life in prison. Delaware’s experience is unique in
that overrides have been used only to reduce death sentences to life in prison.
While the reasons that judges have predominantly overridden life sentences to impose
death cannot be clearly established, the apparent cause is clear: it is political survival.
When judges in states that elect their trial judges have the power to override jury sentences
in capital punishment cases to impose either life or death, that discretionary judgment
provides a ready focus for political pressures. It appears to result primarily in an inclination
to impose death.
Consistent with the practice in Delaware, asymmetry in judicial authority to override
a jury determination is appropriate. The American experience with the death penalty
demonstrates that no rule of law requires the imposition of the death penalty on any
set of facts. Thus, a determination by the jury to impose death will often be appropriate
under the facts but will never be required as a matter of law. On the other hand, the
imposition of death may, in some
instances, not only be inappropriate but
EDITOR’S NOTE
also be legally or morally improper, may
In light of a series of recent U.S. Supreme
be disproportionate or excessive, or may
Court cases, including Apprendi v. New
simply be contrary to the weight of the
JerseyE1, Ring v. Arizona,E2 Blakely v.
evidence. Thus, states may appropriately
Washington,E3 U.S. v. Booker,E4 and U.S.
authorize their trial courts to correct
v. Fanfan,E5 in which the Court found that
juries’ sentencing recommendations
certain sentencing practices violate the
of death, when the court judges such a
Sixth Amendment’s right to a jury trial, the
sentence to be excessive, at the same time
constitutionality of judicial overrides is now
that they prohibit those same trial courts
in doubt. As Justice Sandra Day O’Connor
from overriding a jury recommendation
predicted in dissent in Ring, that decision
of life imprisonment to impose death.
would render the sentencing systems in
Alabama, Delaware, Florida, and Indiana
vulnerable to challenge because of their
“hybrid” systems in which “the jury renders
an advisory verdict but the judge makes
the ultimate sentencing determination . .
. .”E6 It seems likely that the validity of the
practice will be decided in the courts rather
than the legislatures. No matter what the
courts decide, the Committee continues to
object as a matter of policy to the practice
of judicial overrides.

This recommendation does not speak
to states that entrust death penalty
sentencing to judges in the ﬁrst
instance. For reasons discussed above,
the wisdom of having such a structure
may be questioned, given the reality of
judicial electoral politics. However, a
death sentence that results from a judge
overriding a jury determination that
the accused should live is far, far more
difﬁcult to justify under the values of
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our system than is an initial determination, entrusted to the judiciary, that the appropriate
sentence is death.

RECOMMENDATION 26: Trial Judges Should Instruct Juries on
Lingering (Residual) Doubt.
The trial judge, in each case in which he or she deems such an instruction appropriate,
should instruct the jury, at the conclusion of the sentencing phase of a capital case and
before the jury retires to deliberate, as follows: “If you have any lingering doubt as to
the defendant’s guilt of the crime or any element of the crime, even though that doubt
did not rise to the level of a reasonable doubt when you found the defendant guilty,
you may consider that doubt as a mitigating circumstance weighing against a death
sentence for the defendant.”

COMMENTARY
In Lockhart v. McCree, the Supreme Court recognized that jurors who vote to convict may
nevertheless entertain “residual doubts” about the defendant’s guilt that would “bend
them to decide against the death penalty.”16 Residual doubt is deﬁned as any remaining or
lingering doubt a jury has concerning the defendant’s guilt, despite having been satisﬁed
beyond a reasonable doubt. Jurors who are conﬁdent enough of the defendant’s guilt
to convict may still conclude that their level of conﬁdence falls short of the complete
moral certainty needed to take a person’s life. The reasonable doubt standard permits
a conviction despite the presence of genuine
doubts, or the absence of absolute certainty,
EDITOR’S NOTE
about the defendant’s guilt of the crime. Given
While Franklin v. LynaughE7 held
the irrevocable nature of the penalty of death,
that a defendant did not have a
a decision to impose the penalty requires a
constitutional right to have the
greater degree of reliability than is required for
judge instruct the jury that it should
imposition of other penalties.17 Jurors should
consider any lingering, or residual,
not vote for the death penalty if they entertain
doubt about guilt when deciding
doubts as to the defendant’s factual guilt. Yet
on a sentence, the Court’s opinion
many jurors will be unaware of the continuing
did not address the question of
relevance of their doubts about guilt, in the
whether the defendant has the
absence of a jury instruction informing them.
right to present such evidence
to the jury in the ﬁrst place. The
Court has now agreed to decide
this question in Oregon v. Guzek,E8
which will be heard in the Court’s
2005-2006 Term.

In Franklin v. Lynaugh, a plurality of the Supreme
Court ruled that the Eighth Amendment does
not mandate the giving of a residual doubt
instruction.18 As one commentator observed,
however, a majority of the members of the

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Court found that “regardless of whether residual doubt is an Eighth Amendment right,
there was no violation in [the particular] case because Texas had not interfered with the
defendant’s ability to argue the issue to the jury.”19 In the wake of the decision, several
states have barred, through judicial decision, the giving of a residual doubt instruction.
In other states the issue is dealt with inconsistently.20 This recommendation addresses
the issue left open in Franklin v. Lynaugh by making it clear that states should not bar
the giving of residual doubt instructions. It also goes further and, as a matter of common
sense and fundamental fairness, encourages states to adopt rules mandating the giving
of such instructions in cases in which the presiding judge deems them appropriate. The
recommendation contemplates that the universe of such cases will be quite small, since
in most cases that proceed to the capital sentencing phase, jurors will not maintain any
doubt of the defendant’s guilt of the crime charged.

RECOMMENDATION 27: Judges Should Ensure That Capital
Sentencing Juries Understand Their Obligations to Consider
Mitigating Factors.
Every judge presiding at a capital sentencing hearing has an afﬁrmative obligation
to ensure that the jury fully and accurately understands the nature of its duty. The
judge must clearly communicate to the jury that it retains the ultimate moral decisionmaking power over whether the defendant lives or dies, and must also communicate
that (a) mitigating factors do not need to be found by all members of the jury in order
to be considered in the individual juror’s sentencing decision, and (b) mitigating
circumstances need to be proved only to the satisfaction of the individual juror, and
not beyond a reasonable doubt, to be considered in the juror’s sentencing decision. In
light of empirical evidence documenting serious juror confusion on the nature of the
jury’s obligation, judges must ensure that jurors understand, for example, that this
decision rests in the jury’s hands, that it is not a mechanical decision to be discharged
by a numerical tally of aggravating and mitigating factors, that it requires the jury to
consider the defendant’s mitigating evidence, and that it permits the jury to decline to
sentence the defendant to death even if sufﬁcient aggravating factors exist.
The judge’s obligation to ensure that jurors understand the scope of their moral
authority and duty is afﬁrmative in nature. Judges should not consider it discharged
simply because they have given standard jury instructions. If judges have reason to
think such instructions may be misleading, they should instruct the jury in more
accessible and less ambiguous language. In addition, if the jury asks for clariﬁcation
on these difﬁcult and crucial issues, judges should offer clariﬁcation and not simply
direct the jury to reread the instructions.

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COMMENTARY
Empirical evidence shows that capital sentencing juries often labor under signiﬁcant
misapprehensions about the nature and scope of their obligation at the penalty phase.
Research indicates that many jurors wrongly approach the sentencing decision in the
same manner as they do the guilt decision, that is, without fully understanding that (a)
mitigating factors do not need to be found by all members of the jury in order to be
considered in an individual juror’s sentencing decision, and (b) mitigating circumstances
need to be proved only to the satisfaction of the individual juror, and not beyond a
reasonable doubt, to be considered in the juror’s sentencing decision. This confusion
can make it signiﬁcantly more likely that these juries will sentence a defendant to death
than it would have been had they understood their obligations more clearly. Standard
(pattern) jury instructions that give jurors complex criteria, including lists of aggravating
and mitigating factors, often leave jurors with the erroneous impression that their moral
duty will be discharged if they simply tally up the number of aggravating and mitigating
factors and weigh them against each other.21
Juries often do not understand that they are not conﬁned to considering enumerated
aggravating factors, but may also consider non-enumerated and non-statutory mitigating
factors. Indeed, juries are often seriously confused about what mitigation is and how it
must be proved.22 Moreover, they often believe that the factors can be weighed or tallied
according to a pre-existing formula,23 whereas in fact they must be considered in light of
each juror’s ultimate duty to decide whether the particular defendant, in light of all the
circumstances before the jury, deserves to die.24 These erroneous beliefs tend to tilt juries
toward a death sentence for a variety of reasons. First, enumerated aggravating factors
tend numerically to outnumber enumerated mitigating factors. Secondly, any attempt to
weigh these factors is difﬁcult and misguided because the factors are not comparable, and
because such an attempt obscures the true issue: whether the jurors conclude in light of
all the evidence that the defendant deserves to die. Finally, the statutes encourage jurors to
rely on the appearance of mathematical certainty rather than exercise their own judgment
and take responsibility for its consequences.25
The Supreme Court has upheld standard (pattern) jury instructions that, as has been
empirically demonstrated, are apt to give jurors incorrect impressions about their duties.26
Such decisions should not relieve capital sentencing judges of their duty to ensure that
the instructions given in their courts are as clear and accurate as possible. For example,
Professor Jordan Steiker suggests the following instruction:
The death penalty, as opposed to other serious punishments such as life
imprisonment, is reserved only for those defendants who deserve the penalty,
and the moral judgment of whether death is deserved remains entirely with

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you. The determination whether death is deserved involves consideration of
any factors that suggest whether the defendant is or is not among the small
group of “worst” offenders; and in deciding whether the defendant deserves
the death penalty, you are required to consider not only the circumstances
surrounding the crime, but also aspects of the defendant’s character,
background, and capabilities that bear on his culpability for the crime.27
Furthermore, judges often respond to jury requests for clariﬁcation of their obligations
simply by referring the jurors back to reread the instructions. This practice, not surprisingly,
is ineffective at clearing up juror confusion. Indeed, one study concluded that this practice
increased the already strong likelihood that jurors would sentence the defendant to death
based on misapprehension about their duties.28 A judge confronted with juror confusion
should take afﬁrmative steps to dispel that confusion. Simple answers to jury questions,
in plain English, can signiﬁcantly improve the odds that jurors will decide on a sentence
based on accurate understandings of the law. For example, Professors Steven Garvey, Sheri
Lynn Johnson, and Paul Marcus found the following simple clariﬁcation to signiﬁcantly
improve juror comprehension:
Even if you ﬁnd that the state has proved one or both of the aggravating factors
beyond a reasonable doubt, you may give effect to the evidence in mitigation
by sentencing the defendant to life in prison.29
As to both the original instructions and the means of clarifying juror confusion, no one
formula can ensure that juries understand their duties. The important point is that the
judge should not assume, particularly in light of all the evidence to the contrary, that
reliance on pattern jury instructions and refusal to clarify will be sufﬁcient. Judges must
stay constantly vigilant to ensure that they have adequately discharged their duty to guide
jurors properly in the applicable law.

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CHAPTER VIII:
ROLE OF PROSECUTORS
SUMMARY
28.

Prosecutors should provide “open-ﬁle discovery” to the defense in death penalty
cases. Prosecutors’ ofﬁces in jurisdictions with the death penalty must develop
effective systems for gathering all relevant information from law enforcement and
investigative agencies. Even if a jurisdiction does not adopt open-ﬁle discovery, it
is especially critical in capital cases that the defense be given all favorable evidence
(Brady material), and that the jurisdiction create systems to gather and review all
potentially favorable information from law enforcement and investigative agencies.

29.

30.

Prosecutors should engage in a period of reﬂection and consultation before any
decision to seek the death penalty is made or announced.

31.

All capital jurisdictions should establish a Charging Review Committee to
review prosecutorial charging decisions in death eligible cases. Prosecutors in
death eligible cases should be required to submit proposed capital and noncapital charges to the committee. The committee shall issue binding approval
or disapproval of proposed capital charges, with an accompanying explanation.
Each jurisdiction shall forbid prosecutors from ﬁling a capital charge without the
committee’s approval. (2005 Update.)

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32.

Foreign nationals who were not afforded rights to consular notiﬁcation and
access under the Vienna Convention on Consular Relations shall not be eligible
for the death penalty. The chief law enforcement ofﬁcer for each state with capital
punishment and for the federal government shall ensure full compliance with the
VCCR. An independent authority shall report regularly to the chief executive or
legislature about compliance with the VCCR. (2005 Update.)

RECOMMENDATION 28: Prosecutors Should Provide Expanded
Discovery and Ensure That Exculpatory Information is Provided to
the Defense.
Because of the paramount interest in avoiding the execution of an innocent person,
special discovery provisions should be established to govern death penalty cases.
These provisions should provide for discovery from the prosecution that is as full and
complete as possible, consistent with the requirements of public safety. Full “open-ﬁle”
discovery should be required in capital cases. However, discovery of the prosecutor’s
ﬁles means nothing if the relevant information is not contained in those ﬁles. Thus, to
make discovery effective in death penalty cases, the prosecution must obtain all relevant
information from all agencies involved in investigating the case or analyzing evidence.
Disclosure should be withheld only when the prosecution clearly demonstrates that
restrictions are required to protect witness’ safety, or shows similarly substantial
threats to public safety. If a jurisdiction fails to adopt full open-ﬁle discovery for its
capital cases, it must ensure that it provides all exculpatory (Brady) evidence to the
defense. In order to ensure compliance with this obligation, the prosecution should be
required to certify that (a) it is has requested that all investigative agencies involved in
the investigation of the case and examination of evidence deliver to it all documents,
information, and materials relevant to the case and that the agencies have indicated their
compliance, (b) a named prosecutor or prosecutors have inspected all these materials
to determine if they contain any evidence favorable to the defense as to either guilt
or sentencing, and (c) all arguably favorable information has been either provided to
the defense or submitted to the trial judge for in camera review to determine whether
such evidence meets the Brady standards of helpfulness to the defense and materiality
to outcome. When willful violations of Brady duties are found, meaningful sanctions
should be imposed.

COMMENTARY
Require Full Open-File Discovery in Death Cases

Because, as the Supreme Court noted in Gregg v. Georgia,1 “death is different,” discovery
from the prosecution in death penalty cases should not be conducted as business-asusual, which in criminal litigation typically means quite limited disclosure of information.
The extreme nature and ﬁnality of death provides a strong basis for treating discovery in
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death penalty cases differently than in ordinary criminal litigation. Restricting discovery
effectively withholds disclosure of relevant information, creating the real risk that the
truth will be hidden, and, as a result, increasing the likelihood of executing an innocent
person. These considerations strongly support broad discovery in capital cases.
Criminal trials may be a competitive process ﬁlled with sharp practices and
gamesmanship. Whether such practices are consistent with justice in ordinary cases
may be debated. Certainly, however, such practices should cease when the imposition of
a death sentence is at stake. Society may feel justiﬁed in authorizing its representatives
to skirt the line between playing the game rough and playing it fair when it comes to
convicting those who are apparently guilty and making certain that they are conﬁned
and society is protected. Whether such practices are ever warranted, skirting the line
with the potential of denying fair play cannot easily be justiﬁed when the issue is whether
to execute rather than to imprison.
Expanding discovery in criminal cases has long been advocated by the American Bar
Association and other groups supporting reform. Whatever the merits of such proposals
across the full range of criminal litigation, the case for broad discovery is very strong
— indeed imperative — in capital cases. In capital cases, avoiding the ultimate horror
of executing an innocent person makes expanded discovery essential. The availability of
more information will help the jury perform its task more accurately, and, undeniably,
it will reduce the chances that the truth will be hidden and an innocent person will be
executed. Full disclosure by the prosecution should be understood to be an aspect of the
openness that we increasingly associate with good government. Moreover, such disclosures
should not be feared, since jurisdictions such as Florida continue to be able to prosecute
death penalty cases effectively while providing disclosures that are extraordinary by the
standards employed in criminal prosecutions in many jurisdictions.2
Although involving unfamiliar practices that, in some jurisdictions, challenge accepted
norms, we believe that the provision of full open-ﬁle discovery will be of great beneﬁt
to the prosecution in assuring the public of the fairness both of the process and of
ﬁnality. It will eliminate most questions about whether all favorable information has
been supplied, thus vastly decreasing the opportunity for litigation with the frequent
resulting delays and reversals.
Accordingly, regardless of whether a particular jurisdiction provides open-ﬁle discovery
in ordinary criminal litigation, discovery should be full and open in capital cases. If
necessary, separate discovery statutes should be enacted to cover death penalty cases. In
all jurisdictions, the rule in capital cases should be full, open-ﬁle discovery under which,
at an early stage, all documents, information, and materials available to the prosecution
are automatically and routinely made available to the defense.
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Allowing the defense to examine a prosecutor’s ﬁle is of little beneﬁt, however, if the
information in the ﬁle is incomplete, either through inadvertence or intentional practice.
Indeed, the fact that information available to investigative sources is not in the ﬁle
may mislead and deceive the defense in an ostensibly open-ﬁle system. Accordingly, to
make any open-ﬁle system meaningful and effective, investigators should be given the
express duty to retain and organize all information and materials obtained during the
investigation. The prosecutor should have the express responsibility of assembling all
relevant information by requesting all agencies that participated in investigating the case
or examining evidence to provide all relevant documents, information, and materials to
the prosecutor for inclusion in the ﬁle. Practices of investigators and investigative agencies
that encourage reports not to be prepared in written form to avoid disclosure should be
explicitly prohibited, and instead, requirements that signiﬁcant results and facts be made
in writing and preserved should be enacted.
Limitations may be placed upon discovery from the prosecution for compelling interests,
such as threats to witness safety. Consequently, even an open-ﬁle discovery system should
provide opportunities for the granting of protective orders. However, to avoid routine
erosion of the completeness of discovery, withholding information should require speciﬁc
judicial approval. An exacting standard should be required before a protective order is
granted. Such an order should not be granted unless withholding discovery is necessary
to protect the safety of the witness, to protect other speciﬁed individuals, or to achieve
similarly speciﬁc and compelling justiﬁcations in support of public safety.
We acknowledge that emergency situations and the unique problems of national
security and protecting witnesses from threats of death or serious physical harm, which
are most frequently encountered in terrorism and organized crime prosecutions, may
require limited, tightly drawn exceptions to the ordinary practices of automatic required
disclosure. Relief from those requirements should be solely by court order. These special
situations are largely conﬁned to federal prosecutions and will be very rarely encountered
in typical death penalty litigation. Even in special situations, jurisdictions must have in
place procedures that require contemporaneous recording of the prosecution’s justiﬁcation
for departure from standard practice.
The reforms described above will constitute a major change in discovery practices in
many jurisdictions. They will also require special efforts and procedures that entail costs
to the system. Where general application of this new system would constitute the greatest
change from the existing practice in criminal cases, the impact and costs can be drastically
limited by creating a separate discovery system that applies only to death penalty cases.
The number of capital cases is relatively small in every jurisdiction, and they are already
a special focus for the courts. As discussed above, creating a new system in death penalty
cases is both manageable and clearly justiﬁable.
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Disclose Exculpatory (Brady) Evidence

Under long-standing Supreme Court authority, the Due Process Clauses of the Fifth
and Fourteenth Amendments require the prosecution to provide the defense with
all information helpful to the defense that is material to the determination of guilt or
punishment. This information has come to be referred to as “Brady” material, after
the Supreme Court case called Brady v. Maryland.3 The Constitution is violated if the
information is not disclosed, regardless of the bad or good faith of the prosecutor.
Moreover, a violation occurs even where failure to disclose is not the direct responsibility
of the prosecutor, and the information or evidence remains in the hands of police ofﬁcials
and never makes its way to the prosecutor.
Although causation is often difﬁcult to determine, many — perhaps the majority — of
the failures of the prosecution to provide Brady material are the result either of the
prosecutor’s never seeing the exculpatory information or of the prosecutor’s seeing it but
not recognizing its exculpatory nature. Moreover, these inadvertent failures to disclose
are likely to be remedied more easily than are purposeful decisions to hide or destroy
information that has been recognized to be exculpatory.
We suspect that a large number of the breakdowns in the system occur because of the
failure of investigators outside the prosecutor’s ofﬁce who have not been educated in, or
pay insufﬁcient attention to, their institutional duties to provide all potentially exculpatory
information to the prosecution for its assessment under Brady. We believe that because of
prosecutors’ legal and ethical training, they are uniquely equipped to assist investigative
agencies in appreciating their responsibilities under Brady, and we encourage prosecutors
to assume that role.
A program of public and institutional instruction has an important role in the success
of this effort. Instruction will cover the beneﬁts of full disclosure and the components
and requirements of Brady. The message must be received by all law enforcement and
investigative agencies of the importance of full and candid disclosure to the prosecution
of all information potentially helpful to the defense.
Because of the paramount importance of fairness in death penalty cases, systems should
be established to help minimize inadvertent failures to disclose. Such systems would have
three components. First, the prosecutor should have an obligation to request delivery of
all documents, information, and materials relevant to the case from every agency that was
involved in investigating the case or analyzing materials, and to require a response from
these agencies. Failures to seek information, as well as failures to respond, would thus be
eliminated or vastly reduced. Under such a system, information not secured would be
more likely to be the result of purposeful misconduct, which we believe is rare.

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Second, an accountable and named prosecutor or prosecutors should be charged with
reviewing all the information received to determine whether it is exculpatory. Again, the
opportunity for inadvertent failures to produce would be reduced since some responsible
ofﬁcer would be charged with conducting the review and would know that he or she may
be held accountable for failures to disclose.
Third, if arguably exculpatory evidence is unearthed, it should be delivered either to
the defense or to a neutral judicial ofﬁcer, who would inspect it to determine whether
disclosure is required. Prosecutors, who have determined on the basis of all available
evidence that the defendant is guilty, are likely to have a difﬁcult time viewing information
as exculpatory. From the prosecutor’s perspective, any exculpatory evidence must not be
truly exculpatory, for otherwise the prosecution would be dismissed. In the prosecutor’s
mind, each piece of arguably exculpatory information must have some explanation
consistent with guilt. Even a judicial ofﬁcer may not understand the signiﬁcance of
evidence in the same way that an advocate for the defense would. However, the judge’s
neutral position should make somewhat easier any recognition that the information may
be helpful to the defense.
While disclosure of all Brady information is important, a special responsibility exists
where the prosecution creates such evidence through plea bargains and other inducements
offered to accomplices or informants to secure their testimony. Jurisdictions should
consider prohibiting vague and uncertain inducements, which are sometimes made in
that apparently weaker form so that disclosure arguably can be avoided because not clearly
required by the Constitution. In any case, all such inducements should be disclosed to
the defense and should be admissible regardless of whether the inducement was offered
directly by the prosecutor, by ofﬁcials in other jurisdictions, or by law enforcement
ofﬁcials.4 The prosecutor in charge of the case should be charged with a duty to gather
information about possible deals with witnesses from all ofﬁcials who have been in a
position to offer such inducements.
Willful failures to disclose Brady material in death penalty cases are always wrong. While
we trust such failures are relatively rare, they threaten the execution of the innocent.
Jurisdictions should enact meaningful punishments that are effective and enforced when
a court determines that a willful violation has occurred. The penalties should include
monetary sanctions, demotions, and sanctions affecting professional licenses, where
appropriate. Based on past experience, it is very likely that courts will be reticent to ﬁnd
willful violations, and so the possibility of sanction should not concern prosecutors and
law enforcement ofﬁcials who ﬁght very hard but fairly. The existence of the penalty
is, however, potentially important to deter those who purposefully cross clear lines,
particularly in capital cases where the consequence of a violation may be death.

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RECOMMENDATION 29: Prosecutors Should Establish Internal
Prosecutorial Guidelines or Protocols on Seeking the Death Penalty
Where Questionable Evidence Increases the Likelihood That the
Innocent Will Be Executed.
Because eyewitness identiﬁcations by strangers are fallible, co-defendants are prone
to lie and blame other participants in order to reduce their own guilt or sentence, and
jailhouse informants frequently have the opportunity and the clear motivation to
fabricate evidence to beneﬁt their status at the expense of justice, prosecutors should
establish guidelines limiting reliance on such questionable evidence in death penalty
cases. The guidelines should put that penalty off limits where the guilt of the defendant
or the likelihood of receiving a capital sentence depends upon these types of evidence,
and where independent corroborating evidence is unavailable.

COMMENTARY
Throughout time and without regard to political ideology, those knowledgeable about
criminal prosecutions have worried about certain types of evidence that, due to human
frailties, predictably will produce evidence of questionable validity.
One area of concern is with eyewitness identiﬁcation, speciﬁcally stranger identiﬁcation.
History is replete with injustices that were the result of sincere but mistaken identiﬁcations.5
Human perception and memory are fallible.
Another source of concern that has been recognized throughout our judicial history is
the testimony of co-defendants, who frequently will shift blame in the self-interested
quest to avoid the consequences of their own actions. Human nature often discourages
individuals from acknowledging their unique responsibility for taking another’s life when
that acknowledgment might lead to their own execution. The normal human instinct in
support of self-preservation is to shift blame and to name another as the truly reprehensible
individual. And even where clear lies are not told, subtle shifts of role are extraordinarily
likely among those facing the possibility of execution.
A third clear category of evidence that has a particularly high chance of being an outright
lie, exaggerated, or otherwise erroneous is the testimony of jailhouse informants. Their
conﬁnement provides evidence of their questionable character, motivates them to lie in
order to improve the conditions of their conﬁnement or even secure their release, and
often affords access to information that can be used to manufacture credible testimony.
In noting serious questions about the value of these three classes of evidence, we break
no new ground. As noted earlier, their inherent weaknesses have been long recognized

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and the injustices caused by their use have been frequently documented. The real
difﬁculty is in limiting the abuses without excessively hampering law enforcement in
protecting society.
Categorically prohibiting prosecutors from using all such questionable evidence in
criminal prosecutions is not justiﬁable. A single eyewitness may be correct; the codefendant who ﬁrst cooperates may, in fact, be the least guilty; and a jailhouse informant
trusted by the defendant may have heard an accurate admission of guilt. The particularly
high probability of erroneous evidence in these three circumstances is not sufﬁcient
reason to produce a rule excluding all such evidence in any criminal case.
Indeed, the difﬁculty of policing the evidence without excluding it is probably the major
reason that reforms have not progressed in any of these three categories. The decision
whether to seek the death penalty, with its awesome impact and ﬁnality, provides a unique
mechanism for imposing a limited but necessary control on questionable evidence.
A prosecutor should never seek a conviction unless he or she is convinced by all the evidence
that the defendant is guilty. If, after careful inspection and critical examination of all the
evidence in the case, the prosecutor is morally certain of guilt, it would be a dereliction of
duty to fail to prosecute. Such a decision to prosecute can, conceivably, depend critically
on one of these classes of particularly questionable evidence. If the prosecutor still believes
guilt is established to a moral certainty despite informed skepticism, the prosecutor
should move forward to convict the defendant for the good of society. However, seeking
the death penalty is and should be different.
In making this recommendation, we assume that jurisdictions will make the option of life
without parole available.6 With that sentencing option, community safety can be protected
without seeking the death penalty. Not seeking death allows for the possibility that an
error in the eyewitness’s identiﬁcation or the co-defendant’s or jailhouse informant’s
testimony will ultimately be recognized. This correction of error may be admitted by the
witness; may be established by independent evidence; or may result from the operation
of human conscience, the progress of science, or pure luck. Execution needlessly prevents
such errors from being corrected.
The Committee therefore recommends that prosecutors, employing appropriate
skepticism, have the discretion to seek convictions based on any or all of these classes of
questionable evidence, but that they create protocols or guidelines that constrain when
to seek the death penalty. Unless independent evidence establishes the guilt or, where
appropriate, the critical role of the defendant in the taking of human life, prosecutors
should not seek the death penalty. What is sufﬁcient independent corroboration will
frequently be debatable. However, it is clear that corroboration should not be a pro
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forma requirement or structured to be too easily found. The reason a rigorous demand
for corroboration can and should be imposed is that its absence will still mean that
the defendant may be conﬁned for the remainder of his or her life. By contrast, an easy
decision that corroboration exists, when in fact independent proof is lacking, may mean
that errors will only be unearthed after the defendant has been executed.

RECOMMENDATION 30: There Should be a Mandatory Period of
Consultation Before Prosecutors Decide Whether to Commence a
Death Penalty Prosecution.
Before the decision to prosecute a case capitally is announced or commenced, a speciﬁed
time period should be set aside during which the prosecution is to examine the propriety
of seeking the death penalty and to consult with appropriate ofﬁcials and parties.

COMMENTARY
All murders are horrible crimes. As a result, a decision by the prosecution to seek the
ultimate penalty — death — may very frequently appear the right response in the
immediate aftermath of any murder. However, death penalty prosecutions should be
undertaken only in the worst of murder cases. Moreover, the decision to prosecute
capitally should, insofar as possible, be free of the pressure of media attention and
political considerations.
Because of the horror and notoriety of many murders, a local prosecutor’s public
commitment that the case will be prosecuted capitally may seem to be the humane
and correct response for the victim’s family and friends and for a concerned public,
particularly when the apparent perpetrator is quickly apprehended. Unfortunately,
unwarranted commitments to seek the death penalty made during the immediate
aftermath of the crime will be exceedingly difﬁcult to retract unless the decision was
entirely unwarranted.
The immediate reaction may, however, not be the appropriate one if signiﬁcant factors
are left out of the initial analysis and if important facts are not yet known. Haste to make
and announce decisions to prosecute capitally can contribute to an erroneous decision on
the question of guilt by limiting the scope of the investigation; and by putting pressure on
investigative authorities to build a case rather than to investigate it.7
Rushing to judgment may even more frequently have a negative impact on making the
appropriate decision whether to seek death, skewing a decision to prosecute capitally.
Determining how a particular murder relates to others in the jurisdiction that were and
were not prosecuted as death penalty cases requires careful analysis that is typically not
possible on the basis of the factual details and other types of information available in the
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immediate aftermath of the crime. The decision to seek the death penalty should also be
based on the characteristics of the offender as well as the crime, and information relating
to the offender — particularly the salient features that might render the defendant’s
execution unwarranted — are often neither obvious nor quickly discovered. Moreover,
the strength of the case and the certainty that the perpetrator is guilty should be a critical
part of the analysis. However, many critical pieces of evidence, such as scientiﬁc analysis,
will become available only over a period of weeks, not days. Such results may be critical
to determining whether a realistic possibility of innocence is present. Evidence of guilt
that is good enough to warrant prosecution may not be certain enough to justify the
irrevocable act of executing the apparent offender. If made without careful consideration
and full information, the decision to seek the death penalty may be unwise, and, once
made, it may lead to a jury imposing a death sentence that is disproportionate.
For all these reasons, a period of time should be built into the charging process when
analysis and consultation can take place. Obviously, there is nothing magic in any
particular period of time. However, the 120-day period speciﬁed in the death penalty law
of New York appears both reasonable and workable.8
This period when reﬂection and analysis takes place provides an opportunity for
jurisdictions to develop consultative systems that will help to ensure that the most accurate
and reasonable decision possible is made. As an important method of guaranteeing that
the death penalty is reserved for the most heinous offenders, each jurisdiction should
mandate or encourage a system of consultation to help ensure equal application of the
laws across jurisdictions. For example, in New Jersey, the Supreme Court established a
very promising proportionality review project, which supplements judicial precedent
with a comprehensive database to determine how each death eligible case compares to all
other cases in the relevant pool.9
Criminal cases are generally handled by locally elected ofﬁcials who are given broad legal
authority to determine who is to be prosecuted and for what offenses. Within the limits of
the death penalty statutes and constitutional constraints, these ofﬁcials also are invested
with authority to determine when to seek the death penalty. We do not challenge existing
legal structures that give such authority to local prosecutors. What we do recommend
is that a consultation system be mandated for the decision to prosecute capitally where
existing legal structures make such a requirement feasible, and that a system of consultation
be encouraged where not mandated.
In either situation, local ofﬁcials should consult with prosecutors in other locations and
with other knowledgeable ofﬁcials, such as the staff of the attorney general’s ofﬁce. Model
procedures are available in a number of jurisdictions, including the federal system, where
United States Attorneys are required to receive approval from the Attorney General before
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seeking a death sentence. Comparisons made in this consultation process regarding
charging practices in other jurisdictions, and the analysis of the facts of the case at hand
by multiple prosecutors, may provide important beneﬁts in reducing disparities between
regions and political divisions in seeking the death penalty. We recognize that this may be
difﬁcult in some jurisdictions, but there is value in not having greatly disparate approaches
in different parts of the same state when dealing with the same set of facts. Alternatively,
a body of retired prosecutors could be established to provide such consultation; such a
body might do much to remove political concerns and competition from the process.

RECOMMENDATION 31: Jurisdictions Should Require a Mandatory
Review of Prosecutorial Charging Decisions in Death Eligible Cases.

•
•

To ensure fairness in the application of the death penalty, each jurisdiction should
establish a Charging Review Committee responsible for reviewing prosecutorial
charging decisions in death eligible cases. The committee should be composed of
sitting prosecutors and retired judges.
The following procedures should be implemented with respect to each
jurisdiction’s Charging Review Committee:
4
Prosecutors in all cases involving alleged death eligible conduct should be
required to submit proposed charges, capital or non-capital, to the Charging
Review Committee, accompanied by written statements explaining their
charging rationales.
4
The committee should be required to review these proposed charges and
supporting statements of rationale, and to respond with appropriate
comments and/or recommendations.
4
In addition, in the subcategory of death eligible cases in which the
prosecution proposes capital charges, the committee should be required to
issue binding approvals or disapprovals of those capital charges and should
expressly state its reasons for its decisions.
4
Each jurisdiction should expressly forbid prosecutors from filing
capital charges without the approval of its Charging Review Committee.
(2005 Update.)

COMMENTARY
This Committee has identiﬁed several major factors that render the death penalty
unacceptably unfair as currently applied. Chief among these are the lack of uniformity
and the presence of bias (especially racial bias) in charging decisions.10 In the states
where the vast majority of capital cases are adjudicated, this is so in large part because
charging decisions are (a) decentralized (each prosecuting ofﬁce deciding for itself when
and where capital charges are appropriate), (b) discretionary (American tradition grants
prosecutors virtually unrestrained discretion to make binding charging decisions), and
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(c) largely unreviewable by courts (separation of powers concerns traditionally produce
judicial reluctance to review executive branch charging decisions). These attributes of
American criminal justice are deeply imbedded, and they affect profoundly how the death
penalty operates.
The lack of uniformity and presence of bias easily could be overcome if jurisdictions
were to review and approve prosecutors’ charging decisions in a centralized fashion.
Centralized review of charges in all death eligible cases would permit jurisdictions to
collect and analyze data about those cases. Data analysis would enable jurisdictions to
track, among other things, the kinds of characteristics on which its prosecutors rely
— legitimately and illegitimately — when deciding whether to charge death eligible
conduct as a capital offense. Individual prosecutors could be provided with these data,
enabling them to improve their charging decisions by seeking the death penalty only for
the “worst of the worst” rather than for disadvantaged or disfavored classes of offenders.
Moreover, a centralized mechanism requiring approval of all capital charges would help
prosecutors avoid inadvertent bias and inconsistency in the most important decisions
that they make.
Centralized review can be accomplished relatively easily. We propose that each jurisdiction
create a Charging Review Committee to which, in all death eligible cases, prosecutors
would be required to submit proposed charges and written explanations setting forth their
charging rationales. In each case, the committee would respond with recommendations
and commentary, but in cases in which capital charges are proposed, the committee’s
decisions whether to approve the charges would be binding.
To improve the workings of the Charging Review Committee, and to create a record
of capital charging, the committee should report periodically to the jurisdiction’s chief
executive, legislative, and chief judicial ofﬁcers. It might also report to the jurisdiction’s
Capital Case Early Warning Coordinating Council11 or a similar body in order to provide
data to assist that group in avoiding systemic ﬂaws in the death penalty’s operation.
The committee should be comprised of the following: the state’s Attorney General; the
president of the state’s prosecutorial association; two district attorneys (head prosecutors
at the county level, one preferably from the county with the greatest number of capital
cases); and a retired judge with extensive experience in criminal cases at the trial or appellate
level. We leave to each jurisdiction decisions concerning lengths of service, decision making
processes, conﬁdentiality, opportunity for defense submissions, and so on.12
Our recommendation does not require centralized approval of plea offers in capital cases,
because plea bargaining opportunities often arise in the last moments before (or during)
trial. Nevertheless, jurisdictions should recognize that consistency and fairness in the
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application of the death penalty depends to a considerable extent on how prosecutors
exercise their discretion while engaging in plea bargaining. For this reason, each
jurisdiction’s Capital Case Early Warning Coordinating Council or a similar body should
be required to monitor guilty pleas in capital cases and create a database to enable review
of these pleas.
We note that the concerns underlying our recommendation have been widely recognized,
and a statewide review process has been urged on state legislators in several instances.13
The federal system already requires that United States Attorneys receive written permission
from the Attorney General before seeking the death penalty.14

RECOMMENDATION 32: The Vienna Convention on Consular
Relations Should be Enforced.

•

Every capital defendant who is a foreign national should be ineligible for the
death penalty if not provided with consular rights under the Vienna Convention
on Consular Relations (VCCR).

•

Each entity with authority to impose or carry out the death penalty should impose
on its attorney general (or another central law enforcement ofﬁcer) the duty of
ensuring full compliance with the VCCR.

•

This duty should include training law enforcement actors about consular rights
and monitoring adherence to those rights.

•

An independent authority, such as an inspector general, should report regularly
about compliance to the entity’s chief executive or legislative body. (2005 Update.)

COMMENTARY
Article 36 of the Vienna Convention on Consular Relations (VCCR) requires that foreign
nationals detained for any reason shall be notiﬁed “without delay” of their right to
communicate with consular ofﬁcers of their home country.15 According to the International
Court of Justice (ICJ), which authoritatively interprets the VCCR for purposes of the
disputes brought before it, “without delay” means “as soon as it is realized that the person
is a foreign national, or once there are grounds to think that the person is probably a
foreign national.”16 Article 36 also provides that if a detained national invokes consular
rights, the “competent authorities of the receiving State shall, without delay, inform the
consular post.”
The United States signed the VCCR, a multilateral treaty, without reservation in 1969.
Under its terms, as well as those of the United States Constitution, the VCCR binds not
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only federal authorities, but also state and local government actors.17 Indeed, as a treaty,
the VCCR preempts state law, which “must yield when it is inconsistent with, or impairs
the policy or provisions of, a treaty.”18 The VCCR is interpreted and enforced by the ICJ,
and in disputes brought before it, the ICJ’s judgments are binding upon signatories to its
accompanying optional protocol. On the same day that it signed the VCCR, the United
States signed an Optional Protocol consenting to the ICJ’s binding jurisdiction over
disputes under the VCCR.19 As noted below, however, the United States announced its
withdrawal from the Optional Protocol, though not the VCCR itself, on March 7, 2005.
The multilateral nature of the VCCR ensures signatories that by upholding the rights
of foreign nationals they will garner protection for their own traveling citizens. As the
United States Department of State advises in a training manual directed to federal, state,
and local law enforcement ofﬁcers:
These are mutual obligations that also pertain to American citizens abroad. In
general, you should treat a foreign national as you would want an American
citizen to be treated in a similar situation in a foreign country. This means
prompt, courteous notiﬁcation to the foreign national of the possibility
of consular assistance, and prompt, courteous notiﬁcation to the foreign
national’s nearest consular ofﬁcials so that they can provide whatever consular
services they deem appropriate.20
While the extent of United States violations of the VCCR is unknown, in March 2004 the
ICJ found that the United States violated the consular rights of 51 Mexican nationals.21
The ICJ’s ﬁnding came in Avena and Other Mexican Nationals (Mexico v. United States of
America),22 a case in which Mexico alleged that violations of Article 36 in this country are
“commonplace,” and that Mexican consulates have identiﬁed “no fewer than 102 cases
of Mexican nationals detained on serious criminal charges since 27 June 2001, none of
which were notiﬁed of their Article 36 rights.”23 Of the defendants highlighted in the case,
thirty-six faced the death penalty, the others a lengthy prison term.
Based on the Avena decision, Governor Brad Perry of Oklahoma acknowledged that the
ICJ’s decision was binding on his state and commuted the death sentence of Osbaldo
Torres in May 2004.24
On December 10, 2004, the U.S. Supreme Court agreed to hear Medellin v. Dretke,
regarding a Mexican national included in the Avena judgment25 and oral arguments were
scheduled for March 26, 2005. On February 28, 2005, President George W. Bush issued
a memorandum requiring state courts to review the cases covered by the ICJ’s ruling in
Avena.26 On March 7, 2005, Secretary of State Condoleeza Rice informed U.N. Secretary
General Koﬁ Annan that the United States was withdrawing from the Optional Protocol.

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Shortly before oral arguments, Mr. Medellin ﬁled a habeas corpus petition in Texas. Based
on these events, the Supreme Court on May 28, 2005, dismissed the Medellin case as
improvidently granted.
It remains to be seen how the Texas courts will address Mr. Medellin’s case, and whether
the case will make its way back to the Supreme Court. If it does, the Court may once again
be asked to consider the effect of an ICJ ruling on United States courts and whether the
VCCR confers individually enforceable rights to consular access upon foreigners.27
Whatever the future of Mr. Medellin’s case and the impact of the United States’ withdrawal
from the Optional Protocol, the Avena case and cases brought by other countries suggest
disturbingly that death rows across the United States house foreign nationals whose
consular rights were violated but who may never have received assistance from their
consular ofﬁcers.28 For example, in Avena and other cases, consulates became aware of the
defendants’ situations only if they read media reports, were contacted by the defendants’
family members, or performed checks of law enforcement arrest reports. Arrested foreign
nationals rarely, if ever, invoke their consular rights without notiﬁcation. As Justice Stevens
noted in an earlier case, “It surely is reasonable to presume that most foreign nationals
are unaware of the provisions of the Vienna Convention . . . . That is precisely why the
Convention places the notice obligation on the governmental authorities.”29
The policies underlying the VCCR are similar to those underlying the right to counsel
guaranteed by the United States Constitution-protecting the legal rights of detainees and
preventing their mistreatment. Although the ICJ has not required a showing of prejudice
before adjudicating VCCR violations,30 detainees stand to suffer considerable prejudice
if they are denied consular rights. An obvious-and commonplace-prejudice takes place
when detainees are interrogated and make inculpatory statements before they are given
access to their consulates.31 This prejudice is particularly signiﬁcant in capital cases because
confessions induced in the absence of legal assistance may lead to wrongful executions.
Even though the United States Constitution provides a right to counsel in capital cases,
consular ofﬁcers may be better suited than American law enforcement ofﬁcials to
communicate effectively with these individuals and secure counsel quickly. Moreover,
consular ofﬁcers may be better able to locate witnesses (especially those who live in the
foreign country) who may be crucial at both the guilt and sentencing stages of a criminal
trial, and provide experts and other investigation resources.
Various State Department communications have recognized the value of our consular
ofﬁcials having immediate access to our nationals in detention in another country,
arranging for legal representation, and the like.32 The Foreign Affairs Manual, for example,

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notes that “[p]rompt notiﬁcation is necessary to assure early access to the arrestee. Early
access in turn is essential, among other things, to receive any allegations of abuse [and] to
provide a list of lawyers and a legal system fact sheet to prisoners.”33
Despite this country’s statements and policies, and despite the fact that the United States
has admitted in federal court that violations have occurred, the United States has taken
the position that foreign nationals whose VCCR rights have been violated have no legal
remedy,34 and, as noted above, it has now withdrawn from the Optional Protocol.
We believe, to the contrary, that there must be a remedy, and that the federal and state
governments must be prohibited from seeking the death penalty in any case in which the
Vienna Convention’s requirement of notiﬁcation of consular rights is violated.
Furthermore, we believe that federal and state laws should emphasize that the term
“without delay” requires notice as soon as law enforcement or other government ofﬁcials
realize, or have grounds to think, that an arrested person is a foreign national.35
We credit the efforts of a variety of federal and state law enforcement agencies that have
created training manuals, web sites, and other materials to educate their employees about
the VCCR.36 Given continuing noncompliance, however, those jurisdictions with the
death penalty should make greater efforts to educate and monitor law enforcement actors.
More importantly, they should enact measures that provide meaningful incentives toward
compliance. Each entity should impose responsibility for education and monitoring on
its central legal authority — typically the attorney general — who should be required to
report regularly about those activities and about rates of compliance with consular rights.
These reports should be made to the entity’s chief executive or its legislative body.
In addition, states should create meaningful compliance incentives. These might
include exclusionary rules barring the introduction of evidence obtained in the absence
of consular notiﬁcation. As noted above, and most importantly for the purposes of
this Committee, every state and the federal government should enact legislation
rendering foreign nationals ineligible for the death penalty if they are not provided
their consular rights in a timely fashion under the VCCR. Death penalty ineligibility
will not only encourage law enforcement authorities to comply with the VCCR, but it
will also preserve the possibility of future relief for those foreign nationals. We note in
this connection that in several ICJ cases ﬁled against the United States, foreign nations
complained that they discovered VCCR violations only years after their nationals were
sentenced to death — a tragic state of affairs that can easily be avoided if states adopt
the Committee’s proposed ineligibility rule.

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APPENDIX
STATEMENTS AND DISSENTS FOR Mandatory Justice: Eighteen
Reforms to the Death Penalty (2001)
STATEMENT OF WILLIAM G. BROADDUS, ESQ.
RECOMMENDATION 11: Each State Should Implement Procedures to Ensure Proportionate
Death Sentences.

I fully concur in the recommendations set forth in bold type pertaining to proportionality.
While the Supreme Court of the United States has declined to include a proportionality
review as a constitutional mandate, such a review is essential to obtain the objectives
articulated in the recommendation.
My disagreement is with that portion of the comment which suggests that a proportionality
review may be adequately carried out by comparing the case under review with other
cases in which the death penalty was imposed. Such a limited review is inadequate and, in
all likelihood, of little utility.
For example, in Virginia, the State Supreme Court, until recently, compared the case under
review with the records of all capital murder convictions appealed to that Court. Because a
very small number of the capital murder convictions in which life sentences were imposed
were appealed to the Supreme Court, the pool for comparison was heavily weighted to cases
in which the death penalty was handed down. Because there is such a wide range of factual
circumstances in which the death penalty has been meted out in Virginia, such a comparison
was of little utility. Conversely, there are a number of cases resulting in a conviction of
capital murder in which a life sentence was given in which the facts show that the murder
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was more “vile” and the defendant more likely to “future dangerousness” than in those cases
in which the death penalty was handed down. In other words, a view of all capital murder
convictions demonstrates that there is no rational way to distinguish those cases in which
the death penalty is deemed appropriate from those in which a life sentence is given.
As an example, several years ago in Chesterﬁeld County, four women were charged with the
capital murder of a ﬁfth woman. The facts surrounding the murder were vile. Because several
of the victim’s personal effects were taken, thereby constituting a robbery, the prosecution
sought convictions of capital murder. The four women were tried separately. The ﬁrst three
were convicted of capital murder, but given life sentences. The fourth, the only African
American in the group, was convicted of capital murder and sentenced to death. All trials
went to a jury. In the fourth case the judge set aside the death penalty, noting that he could
not fairly impose the death penalty in one case when three co-defendants were given life.
Hypothetically, change the order of trial. If the African American had been tried ﬁrst, under
Virginia’s stringent twenty-one day rule, the trial court would have lost jurisdiction and
not have been able to set aside the death penalty. If the Supreme Court had limited its
proportionality review only to cases in which the death penalty was imposed, there would
be no basis for setting aside the death penalty for the African American because there are
other cases in which robbery of a person and a murder have resulted in the death penalty.
The only way to accomplish the objectives set forth in the recommendation is to follow
the suggestion of the National Center for State Courts that the pool of comparison be that
of all death eligible cases.
On a second, perhaps more personal note, I observed that the text makes reference to
one “who deserves the death penalty.” If that phraseology could be changed to something
along the lines of “those who meet the requirements imposed for the death penalty,” I
would certainly appreciate such a change. Personally, and I suspect that there are others
on the Committee who share this view, I do not believe that anyone deserves the death
penalty. That is born of a moral viewpoint and not of the law.
I have enjoyed my opportunity to participate on this Project and applaud the staff
and other members of the Committee who have worked long and hard on this
important undertaking.

STATEMENT OF CARDINAL WILLIAM H. KEELER
CHAPTER II: Reserving Capital Punishment for the Most Heinous Offenses and Most Culpable
Offenders.

I congratulate the work of the blue-ribbon committee and staff for the Death Penalty
Initiative. These recommendations contribute to the current national debate about
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the death penalty and, if implemented, will go a long way toward preventing wrongful
convictions and the execution of innocent persons — a laudable goal irrespective of one’s
position on the death penalty.
I respectfully submit one additional comment on the Report.
While I agree with the Project’s recommendation that persons with mental retardation
not be subject to the death penalty, my reasons differ somewhat from those given by the
Project. The United States Conference of Catholic Bishops joined by nearly a dozen other
religious organizations, asked our nation’s highest court in McCarver v. North Carolina
to end the practice of executing persons
with mental retardation. We believe,
EDITOR’S NOTE
as stated in our amicus brief, that
This statement refers to the recommendation
such executions violate contemporary
regarding individuals with mental retardation
standards of decency of American
in Chapter II of the original version of
society and cannot be reconciled with
Mandatory Justice. As noted in that chapter,
the Eighth Amendment guarantee
the United States Supreme Court held that
against cruel and unusual punishment.
such executions are unconstitutional in
It is our hope that the Court will act to
Atkins v. Virginia.
end this practice.

DISSENT OF TIMOTHY LYNCH
RECOMMENDATION 10: Each Jurisdictions Should Implement Comprehensive Programs to
Safeguard Racial Fairness.

I dissent from this recommendation because I believe it is misguided. There is an important
difference between racial prejudice and racial disparities. Racial prejudice is wrong and
has no place in the American criminal justice system. Under our law, any capital defendant
that can present evidence speciﬁc to his or her own case that would support an inference
that racial considerations played a part in his or her sentence will have that sentence set
aside. See McCleskey v. Kemp, 481 US 279 (1987). This is a proper and just principle.
Statistical racial disparities among capital defendants are another matter. The population
of murderers (detected and undetected) in our multiracial society is not proportionally
distributed across the various demographic groups. And there are a host of factors other
than race that can inﬂuence the outcome of a trial and the defendant’s ultimate sentence.
Some of those other factors may be correlated with race thereby creating the misleading
impression that racial discrimination is at work when it isn’t. Indeed, the most notable study
to be introduced into evidence, the “Baldus” study, tried to take into account more than
200 variables that could have explained disparities in capital case sentencing. Collecting
racial statistics and other initiatives designed to “correct” disparities will only produce
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work for lawyers and statisticians. The debate over the “proper” statistical methodology
and “proper” legal remedies and procedures will be unending.

STATEMENTS AND DISSENTS FOR Mandatory Justice: The Death
Penalty Revisited, 2005
STATEMENT OF THOMAS A. GOTTSCHALK
I concur generally in the recommendations set forth in this Report, but as to many of
the more speciﬁc implementing recommendations, I lack the expertise or experience to
know how effective or necessary they may be. In this respect, I defer to the judgment of
the other members of the project.

DISSENT OF BETH WILKINSON
I enthusiastically join in the majority of the recommendations made by this Committee.
However, I dissent in the following respects:
RECOMMENDATION 5: Death Penalty Eligibility Should be Limited to Five Factors. (2005 Update.)

The Identiﬁcation of Eligibility Factors for Capital Punishment Should Be Left to Local
Choice, Keeping in Mind the Need to Limit Them to Identifying the “Worst of the Worst”:
I agree that we should limit capital prosecutions to the “worst of the worst” offenders,
and that reliance on the felony murder doctrine should not alone render anyone eligible
for capital punishment. I therefore enthusiastically support the Committee’s original
recommendation that persons convicted of felony murder who did not kill, intend to kill,
or intend that a killing take place, should not be eligible for the death penalty. However, I
do not entirely agree with the Committee’s further limitation of death penalty eligibility.
In particular, I believe that the murder of government employees other than peace ofﬁcers
should render an individual eligible for the death penalty. But my dissent is premised
on my belief that the identiﬁcation of eligibility factors is such a difﬁcult undertaking,
and so subject to reasonable disagreement, that the appropriate balance in determining
additional eligibility factors should be left to the individual jurisdiction. Of course, in
making this decision, jurisdictions should keep in mind the critical goal of limiting the
death penalty to the worst of the worst.
RECOMMENDATION 7: Persons with Severe Mental Disorders Should be Excluded from Death
Penalty Eligibility. (2005 Update.)

Prohibiting execution in cases involving individuals with mental illness. I supported the
Committee’s original recommendation regarding the exclusion of individuals with mental
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retardation from eligibility for the death penalty. I also support its new recommendation
regarding implementation of the Supreme Court’s 2002 decision in Atkins v. Virginia,
in which the Court found that executing such individuals is unconstitutional. I do not,
however, believe that we should recommend a similar exclusion for individuals with mental
illness. I believe that mental illness should be a mitigating factor and that the decision
about whether to charge people with mental illness with a capital crime should be left
to local prosecutors, and that juries should decide whether to convict these individuals.
Since prosecutors and juries are ably making these decisions now, we do not need a very
general, but hard-and-fast, rule excluding these individuals.
RECOMMENDATION 23: Interrogations of Homicide Suspects Should Be Videotaped or Digitally
Video Recorded Whenever Practicable. (2005 Update.)

Presumptively Requiring Audiotaping, Rather Than Videotaping, of Interrogations Is
Sufﬁcient: In my view, the goals of requiring police engaging in custodial interrogations in
homicide cases to tape the entire interrogation process whenever practicable can effectively
be achieved by audiotaping, rather than videotaping. I am concerned that, in particular,
small departments with limited budgets may ﬁnd it difﬁcult to comply with a videotaping
mandate. The recommendation’s goals are laudable. These goals are to allow a court or
fact ﬁnder to evaluate the voluntariness of a confession, minimize credibility disputes and
frivolous suppression motions, fully inform the fact ﬁnder about the relevant events, and
discourage excessive police zeal in interrogation. While videotaping interrogations may in
some cases serve these goals more effectively, and while local departments may therefore
choose to videotape, I would not mandate a presumption in favor of videotaping over
audiotaping and would leave the decision to each locality. In this respect, therefore, I dissent.
But in all other respects I applaud this recommendation.
RECOMMENDATION 24: Courts Should Apply a More Stringent Standard for Appellate Review
of Evidentiary Sufﬁciency. (2005 Update.)

Appellate Review of Evidentiary Sufﬁciency in Capital Cases: I am not persuaded that
exposure to a potentially greater punishment — death — in itself creates any greater
risk of error by fact ﬁnders. Nor do I believe that the current standard has proven too
vague or confusing to be useful to appellate courts. The current standard is supported
by a long history and a resulting set of clarifying precedent. I do not support changing
that standard.

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ENDNOTES
Please note that the numbering of the endnotes begins anew with each new chapter.

BLACK LETTER RECOMMENDATIONS
1.
2.
3.

American Bar Association, Criminal Justice Section Report, reprinted in 40 AMERICAN UNIVERSITY LAW
REVIEW 1, 9 (1990).
Id. at 21.
National Legal Aid and Defender Association, Standards for the Appointment and Performance of Counsel in
Death Penalty Cases (December 1, 1987).

CHAPTER I: ENSURING EFFECTIVE COUNSEL
1.

2.
3.
4.
5.

6.
7.
8.

See Stephen B. Bright, Turning Celebrated Principles Into Reality, THE CHAMPION 6 (Dec./Jan.2003). See also
The Southern Center for Human Rights, “If You Cannot Afford a Lawyer...”: A Report on Georgia’s Failed Indigent
Defense System (Jan. 2003).
American Bar Association, Criminal Justice Section Report, reprinted in 40 AMERICAN UNIVERSITY LAW
REVIEW 1, 69 (1990). [hereinafter ABA Criminal Justice Section Report].
Carol S. Steiker and Jordan M. Steiker, Sober Second Thoughts: Reﬂections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARVARD LAW REVIEW 355, 398 (1995).
ABA Criminal Justice Section Report, supra note 2 at 9.
See, e.g., Texas Civil Rights Project, The Death Penalty in Texas: Due Process and Equal Justice...or Rush to
Execution?, THE SEVENTH ANNUAL REPORT ON THE STATE OF HUMAN RIGHTS IN TEXAS (Sept.
2000) (ﬁnding that fully a third of those recently executed were represented by lawyers who were later
disbarred, suspended, or otherwise sanctioned).
ABA Criminal Justice Section Report, supra note 2 at 21.
Douglas W. Vick, Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences, 43
BUFFALO LAW REVIEW 329 (1995).
See, e.g., Alabama, which sets an hourly rate of $20 to $40 and a maximum of $2,000 per case, meaning that an
attorney devoting 600 hours to pretrial preparation in Alabama would earn $3.33 an hour. See also Tennessee,
which sets an hourly rate of $20 to $30, and Mississippi, which imposes a $1,000 cap per case. (These ﬁgures accurate as of 2001.)
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9.
10.
11.
12.
13.
14.
15.

16.

17.
18.
19.

National Legal Aid and Defender Association, Standards for the Appointment and Performance of Counsel in
Death Penalty Cases 47 (December 1, 1987)[hereinafter NLADA Standards].
Id.
Id.; ABA Criminal Justice Section Report, supra note 2.
NLADA Standards, supra note 9.
See, e.g., State v. Davis, 561 A.2d 1082, 1089 (N.J. 1989), in which the New Jersey Supreme Court held that competence in the capital context should be measured with reference to the special expertise required in capital cases.
Strickland v. Washington, 466 U.S. 668 (1984).
Randall Coyne and Lyn Entzeroth, Report Regarding Implementation of the American Bar Association’s Recommendations and Resolutions Concerning the Death Penalty and Calling for a Moratorium on Executions, 4
GEORGETOWN JOURNAL ON FIGHTING POVERTY 3, 18 (1996).
See, e.g., Funchess v. Wainwright, 772 F.2d 683 (11th Cir. 1985). See also Neal v. Puckett, 239 F.3d 683 (5th Cir.
2001), in which the federal appeals court found that trial counsel for a death row inmate with mental retardation was ineffective for failing to present mitigation evidence and that the failure was prejudicial, but that
the court would nevertheless defer to the state supreme court’s interpretation of Strickland and uphold the
sentence of death.
See Lockett v. Ohio, 438 U.S. 586, 604 (1978).
Welsh S. White, Effective Assistance of Counsel in Capital Cases: The Evolving Standard of Care, 1993 UNIVERSITY OF ILLINOIS LAW REVIEW 323, 341 (1993).
Id. at 342.

EDITOR’S NOTES FOR CHAPTER I
E1. 125 S.Ct. 2456 (2005).
E2. 539 U.S. 510 (2003).

CHAPTER II: RESERVING CAPITAL PUNISHMENT FOR THE MOST
HEINOUS OFFENSES AND MOST CULPABLE OFFENDERS
1.

2.
3.
4.
5.
6.

See VICTOR STREIB, DEATH PENALTY IN A NUTSHELL 70 (2003) (“Statutes which make the death penalty
mandatory for a certain crime have been held unconstitutional by the Supreme Court”). Traditionally, only
ﬁrst-degree murderers were eligible for death, though the death penalty has been added in a number of jurisdictions for a variety of other forms of murder that are “similar” to ﬁrst-degree murder in that they also expose the
offender to the risk of capital punishment. See id. at 66, 68.
See id. at 70.
See id. at 72 (“aggravating circumstances [must] be sufﬁciently clear...to be usable in distinguishing one murder
case from another murder case in a principled manner . . . .”).
See Gregg v. Georgia, 428 U.S. 153 (1976).
See STREIB, supra note 1, at 72.
Jonathan Simon and Christina Spaulding, Tokens of Our Esteem: Aggravating Factors in the Era of Deregulated
Death Penalties, THE KILLING STATE: CAPITAL PUNISHMENT IN LAW, POLITICS, AND CULTURE 81, 8186 (ed. Austin Sarat 1999).
See id. at 81, 83-85; David Givelber, The New Law of Murder, 69 INDIANA LAW JOURNAL 375, 391 (1994)
(placing MPC factors as at the core of Gregg’s analysis); AMERICAN LAW INSTITUTE, MODEL PENAL CODE
§210.6 (1962).

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9.
10.
11.
12.

13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.

38.
39.
40.
41.

42.

See MICHAEL A. FOLEY, ARBITRARY AND CAPRICIOUS: THE SUPREME COURT, THE CONSTITUTION,
AND THE DEATH PENALTY 189 (2003) (non-statutory aggravating circumstances barred from consideration in some states but permitted in others so long as at least one statutory aggravator is found ﬁrst); Simon &
Spaulding, supra note 6, at 84-85.
See Simon & Spaulding, supra note 6, at 83.
Lockett v. Ohio, 438 U.S. 586, 604 (1978).
See STREIB, supra note 1, at 77.
See Simon & Spaulding, supra note 6, at 84 (“Texas, Virginia, and Oregon abandoned altogether the MPC
form, but reinvented the aggravators as a series of five capital murder situations that limit eligibility for
capital sentencing.”).
Zant v. Stephens, 462 US. 862, 877 (1983).
See Simon & Spaulding, supra note 6, at 89 (critiquing Zant and other Supreme Court opinions for in practice
abandoning aggravating circumstances’ “original purpose of policing the rationality of capital sentencing.”).
See id. at 85-86.
Lowenfeld v. Phelps, 484 U.S. 231 (1988).
Id. at 257 (Brennan, J., dissenting).
See Simon & Spaulding, supra note 6, at 84-87.
See id. at 84.
See id. at 84-85.
Id. at 85.
Id.
See id.
See id. at 86-87; STREIB, supra note 1, at 82.
Arave v. Creech, 507 U.S. 463, 471-74 (1993).
Simon & Spaulding, supra note 6, at 87.
See id.
See STREIB, supra note 1, at 81-82 (on California); Report of the Governor’s Commission on Capital Punishment (April 15, 2002); [hereinafter Illinois Commission Report].
Illinois Commission Report, supra note 28, at 66.
See Robert Weisberg, Deregulating Death, SUPREME COURT REVIEW 1983, 305, 385 (1984).
See Simon & Spaulding, supra note 6, at 87.
Id.
See id. at 88.
See id.
See id.
See id. at 87-88.
See Paul Rosenzweig, The Over-Criminalization of Social and Economic Conduct, 27 CHAMPION 28 (August
2003) (quoting OLIVER WENDELL HOLMES, THE COMMON LAW (1881) (“[E]ven a dog distinguishes
between being stumbled over and being kicked.”).
See Simon & Spaulding, supra note 6, at 88.
See id.
See id. at 89.
See id. at 88 (“[A]ggravating factors do help structure decisionmaking, but in ways that work at cross-purposes
to the original vision of ordered deliberation. Most importantly they may allow juries and judges to escape the
traditional burden of judgment.”); see also Givelber, supra note 7, at 394.
See Simon & Spaulding, supra note 6, at 90, 97-98.
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43.
44.
45.
46.
47.
48.

49.
50.

51.
52.

53.
54.

55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.

See id. at 97-98.
See id.
See id. at 98.
See id. at 97.
Id. at 100.
See id. at 97-98. The sponsoring legislator righteously declared his hope that this legislation would combat
“satanic activity in central and southwest Louisiana.” Satanic Ritual Bill Passes, BATON ROUGE MORNING
ADVOCATE, June 22, 1989, 10A. Because the legislation was linked to activities at abandoned military bases in
an economy dependent upon the military, some critics saw the legislation as akin to activity that anthropologists identify as reﬂecting a belief in witchcraft. See Robert Shuler, House Panel OKs Bill Banning Ritualistic Acts,
BATON ROUGE MORNING ADVOCATE, May 26, 1989, 12A.
See Simon & Spaulding, supra note 6, at 97-98.
A CRITICAL REVIEW OF NEW EVIDENCE, Testimony to the New York State Assembly Standing Committees on Codes, Judiciary, and Correction, Hearings on the Future of Capital Punishment in the State of New
York, Dr. Jeffrey Fagan, Columbia Law School, January 21, 2005. See William C. Bailey and Ruth Peterson,
Capital Punishment and Deterrence: A Review of the Evidence and an Examination of Police Killings, 50 JOURNAL OF SOCIAL ISSUES 53 (Summer 1994) (capital punishment is not a general deterrent to murder); Michael L. Radelet and Ronald L. Akers, Deterrence and the Death Penalty: The View of the Experts, 87 JOURNAL
OF CRIMINAL LAW & CRIMINOLOGY 1 (1996) (similar); Craig J. Albert, Challenging Deterrence: New Insights on Capital Punishment Derived from Panel Data, 60 UNIVERSITY OF PITTSBURGH LAW REVIEW 321
(1999); Illinois Commission Report, supra note 28, at 69 (“While there have been some studies which claim to
have found a deterrent effect . . . the greater weight of the research ﬁnds no evidence that the death penalty is
a measurable general deterrent to murder.”).
See Appendix for dissent of Beth Wilkinson.
See ANDREW E. TASLITZ AND MARGARET L. PARIS, CONSTITUTIONAL CRIMINAL PROCEDURE 22435 (2d ed. 2003) (reciting facts of the Oklahoma City Bombing case in which Timothy McVeigh was convicted of
bombing the Murrah Building of federal ofﬁces in Oklahoma City, killing 167 people).
See JOHN KEKES, FACING EVIL 3-4, 7-8 (1992).
See Andrew E. Taslitz, Race and Two Concepts of the Emotions in Date Rape, 15 WISCONSIN WOMEN’S LAW
JOURNAL 3, 52-58 (2000) (discussing the role of the concept of evil in secular justiﬁcations for the criminal law,
as illustrated in the context of date rape).
See id. at 52-53.
See id. at 55-58 (discussing “pure evil”).
Id. at 55.
See COLIN MCGINN, ETHICS, EVIL, AND FICTION 77 (1997).
See id. at 76-78; Taslitz, supra note 54, at 57.
See DAVID A. J. RICHARDS, WOMEN, GAYS, AND THE CONSTITUTION: THE GROUNDS FOR FEMINISM
AND GAY RIGHTS IN CULTURE AND LAW 38-62 (1998).
Illinois Commission Report, supra note 28, at 72.
See Jennifer DeCook Hatchett, Kansas Felony Murder: Agency or Proximate Cause?, 48 UNIVERSITY OF KANSAS
LAW REVIEW 1047 (2002) (surveying statutes and cases in all 50 states).
Richard Rosen, Felony Murder and the Eighth Amendment Jurisprudence of Death, 31 BOSTON COLLEGE LAW
REVIEW 1103, 1115-16 (1990).
See id.
SCOTT TUROW, ULTIMATE PUNISHMENT: A LAWYER’S REFLECTIONS ON DEALING WITH THE
DEATH PENALTY 68-69 (2003).
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66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.

77.
78.
79.
80.
81.
82.
83.
84.
85.
86.

87.

88.
89.
90.

91.
92.

See Rosen, supra note 63, at 1127-28.
Id. at 1128.
See id. at 1117-18.
See id.
Id. at 1118-19.
Tison v. Arizona, 481 U.S. 137 (1987).
TUROW, supra note 65, at 69.
See Rosen, supra note 63, at 1130-31.
Illinois Commission Report, supra note 28, at 73.
THE CONSTITUTION PROJECT, MANDATORY JUSTICE: EIGHTEEN REFORMS TO THE DEATH PENALTY 15 (emphasis added) (2001) (citing Gregg v. Georgia, 428 U.S. 153 (1976)).
See PAUL H. ROBINSON AND JOHN H. DARLEY, JUSTICE, LIABILITY, AND BLAME: COMMUNITY
VIEWS AND THE CRIMINAL LAW 178 (1995). Robinson and Darley summarize the results of their research
on informed public attitudes toward the felony murder doctrine thus:
The data pattern suggests that, from our respondents’ view, the felony-murder rule is on the right track but
simply goes too far. The subjects would support a felony-murder rule that signiﬁcantly aggravates negligent
killings during a robbery, but only to the level of manslaughter for principals and to something less than
that for accomplices, not to the level of murder as the current doctrine does. In other words, they would
support a “felony-manslaughter rule” with a standard “accomplice discount.”
Id.
See David McCord, State Death Sentencing for Felony Murder Accomplices Under the Edmund and Tison Standards, 32 ARIZONA STATE LAW JOURNAL 843, 846-47 (2000).
See id.
Id. at 884.
See id. at 874.
Id.
See id. at 884-85 (albeit choosing an example in which the felon’s accomplice commits the act causing death).
Atkins v. Virginia, 536 U.S. 304 (2002).
EMILY FABRYCKI REED, THE PENRY PENALTY (1993).
Human Rights Watch, Beyond Reason: The Death Penalty and Offenders with Mental Retardation (March 2001).
See generally Carol Steiker and Jordan Steiker, Defending Categorical Exemptions to the Death Penalty: Reﬂections
on the ABA’s Resolutions Concerning the Execution of Juveniles and Persons with Mental Retardation, 61 LAW &
CONTEMPORARY PROBLEMS 89 (1998).
For additional guidance on procedures for implementing Atkins, state legislatures should consult the following: James W. Ellis, Mental Retardation and the Death Penalty: A Guide to State Legislative Issues, 27 MENTAL
AND PHYSICAL DISABILITY LAW REPORTER 11-24 (2003); and Richard J. Bonnie, The American Psychiatric
Association’s Resource Document on Mental Retardation and Capital Sentencing: Implementing Atkins v. Virginia,
32 JOURNAL OF THE AMERICAN ACADEMY OF PSYCHIATRY AND LAW 304 (2004).
Atkins v. Virginia, 536 U.S. 304 (2002).
See, e.g., Phyllis Crocker, Concepts of Culpability and Deathworthiness: Differentiating Between Guilt and Punishment in Death Penalty Cases, 22 FORDHAM LAW REVIEW 21 (1997).
See, e.g., Richard J. Bonnie and C. Robert Showalter, Psychiatrists and Capital Sentencing: Risks and Responsibilities in a Unique Legal Setting, 12 BULLETIN OF THE AMERICAN ACADEMY OF PSYCHIATRY AND LAW
159-67 (1984).
Cf. Miller v. Florida, 373 So.2d 882, 885-86 (Fla. 1979).
Zant v. Stephens, 462 U.S. 862, 885 (1983).
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93. See Penry v. Johnson, 121 S.Ct 1910 (2001) and Penry v. Lynaugh, 492 U.S. 302 (1989).
94. See Appendix for dissent of Beth Wilkinson.
95. See Illinois Commission Report, supra note 28, at 68.

CHAPTER III: EXPANDING AND EXPLAINING LIFE WITHOUT PAROLE
(LWOP)
1.

William J. Bowers and Benjamin D. Steiner, Death by Default: An Empirical Demonstration of False and Forced
Choices in Capital Sentencing, 77 TEXAS LAW REVIEW 605 (1999).
2. Peter Finn, Given Choice, Va. Juries Vote for Life: Death Sentences Fall Sharply When Parole Is Not an Option,
WASHINGTON POST, Feb. 3, 1997, A1.
3. Bowers & Steiner, supra note 1; Theodore Eisenberg and Martin T. Wells, Deadly Confusion: Juror Instructions in
Capital Cases, 79 CORNELL LAW REVIEW 1 (1993).
4. See William J. Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 INDIANA
LAW JOURNAL 1043, 1100-01 (1995).
5. Eddings v. Oklahoma, 455 U.S. 104, 110 (1982).
6. See Jurek v. Texas, 428 U.S. 262, 275 (1976).
7. See California v. Brown, 479 U.S. 538, 545 (1987).
8. Simmons v. South Carolina, 512 U.S. 154, 161 (1994).
9. See also Shafer v. South Carolina, 121 S. Ct. 1263 (2001) (reafﬁrming Simmons).
10. California v. Ramos, 463 U.S. 992, 1026-27 (1983).
11. Penry v. Lynaugh, 492 U.S. 302, 319 (1989).
12. See James S. Liebman, The Overproduction of Death, 100 COLUMBIA LAW REVIEW 2030 (2000).

EDITOR’S NOTES FOR CHAPTER III
E1. http://www.deathpenaltyinfo.org/article.php?did=555&scid=59.
E2. S.B. 60, 79th Leg. (Tex. 2005) (Life Without Parole Bill).

CHAPTER IV: SAFEGUARDING RACIAL FAIRNESS
1.
2.

4.
5.

McCleskey v. Kemp, 481 U.S. 279 (1987).
See Peter D. Hart/American Viewpoints, America’s Views on the Death Penalty (Sept. 14, 2000); see also Gallup
Organization, Poll Analysis, Slim Majority of Americans Think Death Penalty Applied Fairly in the Country
(June 30, 2000).
See McCleskey v. Kemp, 481 U.S. 279, 319 (1987) (“Legislatures . . . are better qualiﬁed to weigh and ‘evaluate the
results of statistical studies in terms of their own local conditions and with a ﬂexibility of approach that is not
available to the courts.’”) (citation omitted).
Batson v. Kentucky, 476 U.S. 79 (1986).
See Appendix for dissent of Timothy Lynch.

CHAPTER V: ENSURING PROPORTIONALITY REVIEW
1.
2.

Furman v. Georgia, 408 U.S. 238 (1972).
Gregg v. Georgia, 428 U.S. 153 (1976).
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3.
4.

Pulley v. Harris, 465 U.S. 37 (1984).
See Appendix for additional statement of William G. Broaddus, Esq.

CHAPTER VI: PROTECTING AGAINST WRONGFUL CONVICTIONS
AND SENTENCES
Exculpatory DNA Evidence and Newly Discovered Evidence; Credible Claims of Innocence
1.

2.
3.
4.

5.
6.
7.
8.

Joseph L. Hoffman, Substance and Procedure in Capital Cases: Why Federal Habeas Courts Should Review the Merits of Every Death Sentence, 78 TEXAS LAW REVIEW 1771 (2000); Susan Bandes, Simple Murder: A Comment on
the Legality of Executing the Innocent, 44 BUFFALO LAW REVIEW 501 (1996).
See Hoffman, supra note 1.
See Vivian Berger, Herrera v. Collins: The Gateway of Innocence for Death Sentenced Prisoners Leads Nowhere, 35
WILLIAM & MARY LAW REVIEW 943 (1994).
In 2001, Virginia enacted a “Writ of Actual Innocence” to allow the Virginia Supreme Court to issue such writs,
but only in cases in which an individual’s innocence could be proven through biological evidence, see http://leg1.
state.va.us/cgi-bin/legp504.exe?000+coh+19.2-327.2+403617. In 2004, the “Writ of Actual Innocence” was extended to cases in which innocence could be proven through nonbiological evidence; however those who plead
guilty are excluded from relief, see http://leg1.state.va.us/cgi-bin/legp504.exe?000+coh+19.2-327.10+403617.
Under both statutes the evidence must be newly discovered to qualify.
No. 04-8990 (2005).
House v. Bell, 125 S. Ct. 2991 (2005).
Bandes, supra note 1.
Strickland v. Washington, 466 U.S. 668 (1984).

Learning from Wrongful Convictions and Sentences and Avoiding Future Wrongful Convcitions
and Sentences
9.
10.
11.
12.
13.
14.
15.

16.
17.

See generally ANDREW E. TASLITZ AND MARGARET L. PARIS, CONSTITUTIONAL CRIMINAL PROCEDURE (2d ed. 2003).
See id. at 579-89.
C. RONALD HUFF, WRONGFUL CONVICTIONS: CAUSES AND PUBLIC POLICY ISSUES 15, 15-16 (2003).
See id. at 16-19; BRIAN FORST, ERRORS OF JUSTICE: NATURE, SOURCES, AND REMEDIES (2004).
Ronald Huff, What Can We Learn From Other Nations About the Problem of Wrongful Conviction, 86 JUDICATURE 91 (2002).
DONALD DRIPPS, ABOUT GUILT AND INNOCENCE: THE ORIGINS, DEVELOPMENT, AND FUTURE OF
CONSTITUTIONAL CRIMINAL PROCEDURE 175 (2003).
See Barry Scheck and Peter Neufeld, DNA and Innocence Scholarship, WRONGLY CONVICTED: PERSPECTIVES ON FAILED JUSTICE 241, 241 (Saundra D. Westervelt and John A. Humphrey eds 2001); www.innocenceproject.org.
www.deathpenaltyinfo.org.
See HUFF, supra note 11, at 16. “Index crimes” are those included in the Federal Bureau of Investigation’s Uniform Crime Reports — primarily and most reliably murder, rape, robbery, aggravated assault, burglary, theft,
and motor vehicle theft. See GARY LAFREE, LOSING LEGITIMACY: STREET CRIME AND THE DECLINE OF
SOCIAL INSTITUTIONS IN AMERICA 13 (1998).

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18. BARRY SCHECK, PETER NEUFELD, AND JAMES DWYER, ACTUAL INNOCENCE: WHEN JUSTICE
GOES WRONG AND HOW TO MAKE IT RIGHT 315-16 (rev. ed. 2001); See also HUFF, supra note 11, at 16
(“[T]housands of miscarriages of justice . . . allow many of the criminals who actually committed their crimes to
remain free to victimize others.”).
19. See, e.g., DRIPPS, supra note 14, at 175.
20. See Transcript, National Public Radio, Talk of the Nation: The Concept of False Confessions and Its Relevance in the
Central Park Jogger Case (December 20, 2002).
21. See Andrew E. Taslitz, Wrongful Rights, 18 CRIMINAL JUSTICE 4, 4-6 (Spring 2003).
22. See Barry Scheck and Peter Neufeld, DNA and Innocence Scholarship, WRONGLY CONVICTED: PERSPECTIVES ON FAILED JUSTICE 241, 241 (Saundra D. Westervelt and John A. Humphrey eds, 2001); www.innocenceproject.com.
23. See Taslitz, supra note 21, at 5.
24. See DRIPPS, supra, note 14, at 125 (“In a nationwide sample of more than twenty thousand . . . [DNA] tests, a
quarter of the conclusive results exonerated the suspect. There is little reason to believe that the police do better
in cases without DNA evidence.”).
25. See Report of the Governor’s Commission on Capital Punishment 1, 1 (April 15, 2002)[hereinafter Illinois Commission Report].
26. See Robert Pierre and Kari Lyderson, Illinois Death Row Emptied, WASHINGTON POST, January 12, 2003, A1, A11.
27. Id. at A1.
28. See Illinois Commission Report, supra note 25, at 1.
29. Margaret Graham Tebo, Closing Argument: Barnett Supports Bill Seeking Death Penalty Inquiry, 87 AMERICAN
BAR ASSOCIATION JOURNAL 86 (October 2001).
30. Samuel R. Gross and Phoebe C. Ellsworth, Second Thoughts: Americans’ Views on the Death Penalty at the Turn of
the Century, AMERICA’S DEATH PENALTY: BEYOND REPAIR? 7, 30 (Stephen P. Garvey ed., 2003) [hereinafter
Beyond Repair].
31. See generally HUFF, supra note 11, at 16-19.
32. See generally JEFFREY ROSEN, THE NAKED CROWD 62-95 (2004).
33. ABA, Report of the Post-Conviction and Systemic Issues Subcommittee of the ABA Criminal Justice Section’s Committee on Innocence and the Integrity of the Criminal Justice Process 1, 2 (draft 2003) [hereinafter Systemic Issues
Subcomittee Report].
34. Id. at 2.
35. See generally id.
36. Keith A. Findley, Learning from Our Mistakes: A Criminal Justice Commission to Study Wrongful Convictions, 38
CALIFORNIA WESTERN LAW REVIEW 333, 344-45 (2002).
37. See Criminal Appeal Act, 1995, §13 (1)(a)(Eng.) (declaring the standard); Lissa Grifﬁn, The Correction of Wrongful Convictions: A Comparative Perspective, 16 AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW
1241, 1276 (2001) (explaining the standard); See R.V. Criminal Cases Review Commission, Ex Parte Pearson, 3
ALL ENGLAND LAW REPORTS 498 (1999).
38. Criminal Appeal Act, supra note 37, §13(1)(b).
39. Grifﬁn, supra note 37, at 1276 (citing FRANK BELLONI AND JACQUELINE HOGSON, CRIMINAL INJUSTICE 187 (2000)).
40. Id. at 1279.
41. Id. at 1278; see also David Horan, The Innocence Commission: An Independent Review Board for Wrongful Convictions, 20 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW 91, 140 (2000) (tracing origins of CCRC and its
processes).

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42. See Grifﬁn, supra note 37, at 1278-79 (summarizing the above procedures).
43. See id. at 1279; CCRC ANNUAL REPORT for 1998-99 132; R.V. Mattan, (unreported) (C.A. Mar. 5, 1998), available at http://www.casetrack.com (on the short review procedure).
44. See Systemic Issues Subcomittee Report, supra note 33.
45. Grifﬁn, supra note 37, at 1276-77.
46. See Barry C. Scheck and Peter J. Neufeld, Toward the Formation of “Innocence Commissions” in America, 86 JUDICATURE 98, 1000 (Sept.-Oct. 2002).
47. See Findley, supra note 36, at 342.
48. See Jack King, The Ordeal of Guy Paul Morin: Canada Copes with Systemic Injustice, THE CHAMPION (Aug.
1998), available at http://www.criminaljustice.org/CHAMPION/ARTICLES/98aug1.htm.
49. See Findley, supra note 36, at 342.
50. See id.
51. See id.
52. See id. at 343.
53. Fred Kaufman, Executive Summary: Commission on Proceedings Involving Guy Paul Morin 14 (1998), available at
http://www.attorneygeneral.jus.gov.on.ca/html/MORIN/excesumrec/morin-esumm.pdf.
54. See Findley, supra note 36, at 343-44.
55. Id. at 344.
56. See Scheck & Neufeld, supra note 15, at 102-03.
57. See 49 U.S.C. §§1101-1155 (2000).
58. See Scheck & Neufeld, supra note 15, at 103.
59. See Carlisle, Comments, The FAA v. the NTSB: Now That Congress Has Addressed the Federal Aviation Administration’s “Dual Mandate,” has the FAA Begun Living Up to Its Amended Purpose of Making Air Travel Safer, or is the
National Transportation Safety Board Still Doing Its Job Alone?, 66 AIR LAW & COMMERCE 741, 757 (2001).
60. Scheck & Neufeld, supra note 15, at 103-05.
61. See Michael Saks, et al., Model Prevention and Remedy of Erroneous Convictions Act, 33 ARIZONA STATE LAW
JOURNAL 665, 712 (2001).
62. See Scheck & Neufeld, supra note 15, at 102.
63. Systemic Issues Subcommittee Report, supra note 33, at 8. These recommendations were adopted by the ABA
House of Delegates at the 2005 ABA Annual meeting. See http://www.abanet.org/crimjust/news/home.html. In
the interim some language has changed.
64. Id.; see also Lauren B. Simon and Mary Katherine Moore, Intermediate Sanctions for Women Offenders Project, 16
CRIMINAL JUSTICE 54 (Spring 2001).
65. See Systemic Issues Subcommittee Report, supra note 33, at 8.
66. Id. at 9.
67. www.state.ga.us./cjcc.
68. Systemic Issues Subcommittee Report, supra note 33, at 9 (quoting www.state.ga.us/cjcc).
69. See Systemic Issues Subcommittee Report, supra note 33, at 9 (quoting www.cjjcc.org).
70. Id. at 9.
71. See www.innocenceproject.org.
72. See Andrew E. Taslitz, Wrongful Convictions Seminar Website, www.lawschool.westlaw.edu/taslitz/wrongfulconvictions; see also www.innocenceproject.org/about/course.php (national on-line wrongful convictions course
taught at a growing number of law schools).

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DNA Evidence
73. National Institute of Justice, Ofﬁce of Justice Programs, U.S. Department of Justice, Postconviction DNA Testing:
Recommendations For Handling Requests, Pub. No. NCJ 177626 (Sept. 1999) [hereinafter Postconviction DNA
Testing] at 1; National Institute of Justice, U.S. Department of Justice, Using DNA To Solve Cold Cases, No. NCJ
194197 (July 2002).
74. As of March 2004, there were over 1.6 million convicted offender proﬁles in CODIS’s National DNA Index System, and over 78,000 proﬁles from unsolved cases. See www.fbi.gov/hq/lab/codis/index1.htm.
75. See http://www.innocenceproject.org/case/index.php.
76. Transcript of news conference, March 4, 2002. Available at http://www.usdoj.gov/ag/speeches/ 2002/030402newsconferncednainitiative.htm.
77. Nina Morrison, Innocence Project, July 21, 2005. See http://www.innocenceproject.org/legislation/index.php. See
also Postconviction DNA Testing, supra note 73, at 3-6 (outlining framework of analysis, with ﬁve categories of
cases in which post-conviction DNA testing may or may not be probative of innocence, to guide prosecutors and
judges in determining whether to consent to testing).
78. See, e.g., William Sessions, DNA Tests Can Free the Innocent: How Can We Ignore That?, WASHINGTON POST,
Sept. 21, 2003; The Real Problem With DNA Tests (Editorial), NEW YORK TIMES, Sept. 1, 2003, A.16; Adam Liptak, Prosecutors Fight DNA Use for Exoneration, NEW YORK TIMES, Aug. 29, 2003, A1; David Rudovsky, Double
Helix, Double Bind: Factual Innocence and Postconviction DNA Testing, 151 UNIVERSITY OF PENNSYLVANIA
LAW REVIEW 547 (2002).
79. See Rudovsky, supra note 78, at 547-50; Sara Rimer, DNA Testing in Rape Cases Frees Inmate After Fifteen Years,
NEW YORK TIMES, Feb. 15, 2002, A.12.
80. See DNA Used to Link Suspected Killer to 8th Slaying (Eddie Lee Mosley), TALLAHASSEE DEMOCRAT, Sept.2,
2001; Ardy Freedberg and Jason Smith, Townsend Released: Judge Cites ‘An Enormous Tragedy,’ SOUTH FLORIDA
SUN-SENTINEL, June 16, 2001, 1A; Daniel deVise, For 14 Years, Justice Failed a Man Condemned to Die (Frank
Lee Smith), June 25, 2001; Sydney Freedberg, DNA Clears Inmate Too Late (Frank Lee Smith), ST. PETERSBURG TIMES, Dec. 15, 2000. See also Testimony of Prof. Barry Scheck before the U.S. Senate, Committee on the
Judiciary, June 11, 2002, available at http://judiciary.senate.gov/ testimony.cfm?id=290&wit_id=633 (noting that
investigation of related crimes after Smith and Townsend’s exonerations have led Florida police to conclude that
Mosley may have committed as many as sixty-two rapes and/or murders altogether).
81. See Dennis Wagner et al., DNA Frees Arizona Inmate after 10 Years in Prison, ARIZONA REPUBLIC, April 9,
2002; see also Tom Tingle, First Day Out as a Free Man, ARIZONA REPUBLIC, April 10, 2002 (re: Phillips’ prior
sex offense conviction); We ‘Won’t Ever Know All the Truth’ (Editorial), LAS VEGAS REVIEW-JOURNAL, Dec. 7,
2003 (same).
82. See Charlie Goodyear and Erin Hallisy, The Other Side of DNA Evidence: An Innocent Man is Freed, SAN FRANCISCO CHRONICLE, Oct. 19, 1999; BARRY SCHECK, PETER NEUFELD, AND JIM DWYER, ACTUAL INNOCENCE: WHEN JUSTICE GOES WRONG AND HOW TO MAKE IT RIGHT, 309-16 (2003 ed.).
83. See James Dao, In Same Case, DNA Clears Convict and Finds Suspect, NEW YORK TIMES, Sept. 6, 2003; Dan
Rodricks, Delay in Matching DNA Should be Explained, BALTIMORE SUN, Sept. 11, 2003.
84. See, e.g., Robert McFadden, Ofﬁcial Says DNA and Alibis Clear Suspect in Sex Attacks, NEW YORK TIMES, Feb.
27, 2004 (reporting that charges would be dismissed against man arrested and charged with series of four rapes
based on eyewitness identiﬁcation in police lineups, after DNA tests excluded him and proved victims’ identiﬁcations were mistaken); Marcus Franklin, DNA Pinpoints a New Suspect in 2003 Slaying, ST. PETERSBURG TIMES,
Jan. 8, 2004 (reporting that DNA “hit” in databank identiﬁed real perpetrator, and exonerated suspect who had
been wrongfully jailed for previous year). Indeed, one notable FBI study in 1996 showed that, in nearly 25 percent of all sexual assault cases in which DNA testing was obtained pretrial that were tracked by the Bureau over a

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85.

86.

87.

88.
89.

seven-year period, the person identiﬁed by investigators as the “prime suspect” in the case was actually excluded
by the DNA results. See National Institute of Justice, Ofﬁce of Justice Programs, U.S. Department of Justice,
Convicted By Juries, Exonerated By Science: Case Studies In The Use Of DNA Evidence To Establish Innocence After
Trial, Pub. No. 161258 (June 1996) at xxviii.
See, e.g., Jennifer Thompson and Debbie Smith, Florida’s DNA Deadline Can Hurt Victims, Too (op-ed), TALLAHASSEE DEMOCRAT, Sept. 5, 2003 (argument by two rape survivors that crime victims’ interests are served by
giving inmates liberal access to post-conviction DNA testing that can both prove innocence and identify the real
perpetrators); Jennifer Thompson, I Was Certain, But I Was Wrong (op-ed), NEW YORK TIMES, June 18, 2000
(ﬁrst-person account of rape victim’s eyewitness identiﬁcation proven to be mistaken through post-conviction
DNA testing).
See, e.g., Let DNA Settle the Coleman Case (Editorial), ROANOKE TIMES & WORLD NEWS, Mar. 2, 2004 (urging Virginia Gov. John Warner to permit posthumous DNA testing to proceed in the case of Roger Coleman,
who was executed in 1992 for a rape-murder in which testable evidence remains at a DNA laboratory; and quoting prosecutor’s support for testing on ground that state should not “be afraid of the truth, wherever it may lie”);
Test Time, Mr. Warner (Editorial), WASHINGTON POST, Sept. 3, 2003 (same).
In one remarkable such case, a prosecutor in Florida, arguing that exculpatory DNA test results should not be
admissible because the defendant’s claim of innocence was time-barred, told the court that the State’s position
would not change even if ofﬁcials “knew with 100% certainty that this [defendant] was absolutely innocent.”
Carl Hiaasen, Still Behind Bars, Despite DNA Evidence, MIAMI HERALD (op-ed), May 9, 2004; Liptak, Prosecutors Fight DNA Use for Exoneration, supra note 78 (discussing same case). See also DA to Retry ‘Slayer’ Freed
by DNA (AP), NEW YORK POST, Sept. 12, 2003 (DA of Nassau County, NY, announcing plans to retry man
convicted, along with two co-defendants, of 1986 rape-murder, despite the fact that a series of DNA tests had
excluded all three men from semen found in victim); Sara Rimer, Convict’s DNA Sways Labs, Not a Determined
Prosecutor, NEW YORK TIMES, Feb. 6, 2002, A.14 (reporting District Attorney’s refusal to concede that two
identical DNA test results on two rape kits, conducted in private lab and state’s crime lab, prove innocence of
Bruce Godschalk, who was excluded in each of the tests).
See Sessions, supra note 78.
See, e.g., Maurice Possley and Steve Mills, Crimes Go Unsolved as DNA Tool Ignored, CHICAGO TRIBUNE, Oct. 26,
2003 (reporting that in nearly half of all cases in U.S. in which a post-conviction DNA exoneration left the underlying crime unsolved, prosecutors and police still have not submitted DNA from case into CODIS database).

Forensic Laboratories
90. STANLEY COHEN, THE WRONG MEN: AMERICA’S EPIDEMIC OF WRONGFUL DEATH ROW CONVICTIONS 220 (2003).
91. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
92. See STEVEN FRIEDLAND, PAUL BERGMAN, AND ANDREW E. TASLITZ, EVIDENCE LAW AND PRACTICE
283-84 (2000) (summarizing Daubert criteria).
93. Weisgram v. Marley Co., 528 U.S. 440, 442 (2000).
94. See Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
95. See General Electric Co. v. Joiner, 522 U.S. 136, 138-39 (1997).
96. See 1 PAUL GIANNELLI AND EDWARD J. IMWINKELRIED, SCIENTIFIC EVIDENCE §1-15 (3d ed. 1999)
(summarizing jurisdictions retaining Frye); Ramirez v. State, 810 S. 2d 836, 843 (Fla. 2001) (Frye is dictated by
the state’s burden to prove every element of its case beyond a reasonable doubt); State v. Copeland, 922 P. 2d
1304, 1314 (Wash. 1996) (en banc) (“The trial court’s gatekeeper role under Frye involves by design a conservative approach, requiring careful assessment of the general acceptance of the theory and methodology of novel

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science, thus helping to ensure, among other things, that ‘pseudoscience’ is kept out of the courtroom.”).
97. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Frye test, see American Bar Association Criminal Justice Section,
Ad Hoc Committee on Innocence and Ensuring the Integrity of the Criminal Justice System, Scientiﬁc Evidence
Subcommittee Recommendations 5 (November 2003 Draft) (describing Frye standard as “reinvigorated”) [hereinafter Scientiﬁc Subcommittee Recommendations].
98. Scientiﬁc Subcommittee Recommendations, supra note 97, at 5.
99. See Paul C. Giannelli and Emmie West, Forensic Science: Hair Comparison Evidence, 37 CRIMINAL LAW BULLETIN 514 (Sept.-Oct. 2001) (documenting cases); Edward Imwinkelried, Flawed Expert Testimony: Striking the
Right Balance in Admissibility Standards, 18 CRIMINAL JUSTICE 29 (Spring 2003) (noting widespread recognition of the problem).
100. See Paul Giannelli, The “Science” of Wrongful Convictions, 18 CRIMINAL JUSTICE 55, 55 (Spring 2003) (hair
comparison); Andrew E. Taslitz, Does the Cold Nose Know? The Unscientiﬁc Myth of the Dog Scent Lineup, 41
HASTINGS LAW JOURNAL 15 (1990); COHEN, supra note 90, at 225-30 (bite mark comparison and hypnosis
illustrative cases); BARRY SCHECK, PETER NEUFELD, AND JIM DWYER, ACTUAL INNOCENCE: WHEN
JUSTICE GOES WRONG AND HOW TO MAKE IT RIGHT 209 (2001) (“The weakness of the ﬁeld [of hair
comparison] is well established.”).
101. See Jim Dwyer, Some Ofﬁcials Shaken by New York Central Park Jogger Inquiry, NEW YORK TIMES, Sept. 28,
2002, B1, B3 (“At the trial, the prosecution had argued that hairs found on Ms. Richardson’s clothes came from
the jogger. Recent DNA tests show that claim to be wrong.”).
102. Ramirez v. State, 810 So. 2d 836, 853 (Fla. 2001) (citations omitted).
103. See, e.g., Paul C. Giannelli, The Abuse of Scientiﬁc Evidence in Criminal Cases: The Need for Independent Crime
Laboratories, 4 VIRGINIA JOURNAL OF SOCIAL POLICY & THE LAW 439 (1997) (documenting instances of
fraud); George Castelle, Lab Fraud: Lessons Learned, THE CHAMPION 13-14 (May 1999) (fraud and inadvertent
error are equally pervasive).
104. See Castelle, supra note 103, at 14.
105. See Hansen, Caudill and Boone, Crisis in Drug Testing: Results of CDC Blind Study, 253 JOURNAL OF THE
AMERICAN MEDICAL ASSOCIATION 2382 (1985) (Center for Disease Control proﬁciency test of laboratories
doing immunoassay drug testing); J. PETERSON, E. FABRICANT AND K. FIELD, CRIME LABORATORY PROFICIENCY TESTING RESEARCH PROGRAM (1978) (a study of 21 tests in 240 laboratories); Paul C. Giannelli,
The Admissibility of Laboratory Reports in Criminal Trials: The Reliability of Scientiﬁc Proof, 49 OHIO STATE
LAW JOURNAL 671, 675-92 (1988) (discussing the Laboratory Proﬁciency Testing Program of the Law Enforcement Assistance Administration); D. Michael Risinger, Mark P. Denbeavy, and Michael J. Saks, Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identiﬁcation “Expertise,” 137 UNIVERSITY
OF PENNSYLVANIA LAW REVIEW 731, 743-51 (1989) (proﬁciency tests of questioned documents examiners
by the Forensic Science Foundation); Grieve, Possession of Truth, 46 JOURNAL OF FORENSIC INDENTIFICATION 521 (1996) (proﬁciency test of ﬁngerprint examiners).
106. See Giannelli, Science of Wrongful Convictions, supra note 100, at 55-56; Imwinkelried, Flawed Expert Testimony,
supra note 99, at 33 (“Many of the published proﬁciency tests identify sloppy test procedures as a leading cause
of erroneous ﬁndings.”).
107. Imwinkelried, Flawed Expert Testimony, supra note 99, at 33; see also Edward J. Imwinkelried, The Debate in the
DNA Cases Over the Foundation for the Admission of Scientiﬁc Evidence: The Importance of Human Error as a
Cause of Forensic Misanalysis, 69 WASHINGTON UNIVERSITY LAW QUARTERLY 19, 32 (1991).
108. See Imwinkelried, Flawed Expert Testimony, supra note 99, at 33-34.
109. Castelle, supra note 103, at 479.
110. See FEDERAL RULES OF EVIDENCE 702; FRIEDLAND, et. al., supra note 92, at 298-304 (explaining genesis

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and signiﬁcance of this amendment to Rule 702).
111. See, e.g., U.S. DEPARTMENT OF JUSTICE, OFFICE OF INSPECTOR GENERAL, THE FBI LABORATORY: AN
INVESTIGATION INTO LABORATORY PRACTICES AND ALLEGED MISCONDUCT IN EXPLOSIVES-RELATED AND OTHER CASES (April 1997) (recommending, among other things, that FBI forensic analysts have
adequate scientiﬁc backgrounds, mandating the preparation and signing of separate reports attributable to each
examiner, establishing unit chief review procedures, requiring adequate case ﬁles to support reports, monitoring
courtroom testimony to preclude examiners from testifying in unprofessional ways or beyond their expertise,
and calling for development of written protocols for scientiﬁc procedures).
112. See Castelle, supra note 103, at 13.
113. Id.
114. Id.
115. Id.
116. In re Investigation of the W. Va. State Police Crime Lab, Serology Div., 438 S.E. 2d 501, 503 (W. Va. 1993) (quoting report).
117. See Castelle, supra note 103, at 13.
118. Id.
119. Id.
120. See id.
121. See Scientiﬁc Subcommittee Recommendations, supra note 97, at 5-6.
122. See MARK FUHRMAN, DEATH AND JUSTICE: AN EXPOSE’ OF OKLAHOMA’S DEATH ROW MACHINE 20
(2003).
123. Id. at 21.
124. Id.
125. See id. at 22, 110-11.
126. Id. at 22.
127. See id. at 106-22.
128. Id. at 120.
129. See id. at 22.
130. Castelle, supra note 103, at 13.
131. http://www.hpdlabinvestigation.org/reports/050630report.pdf (July 2005).
132. See e.g., Imwinkelried, Flawed Experts Testimony, supra note 99, at 30 (“[T]here is now solid evidence that erroneous expert testimony is causing a signiﬁcant number of erroneous convictions.”).
133. BARRY SCHECK, ET AL., ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES
FROM THE WRONGLY CONVICTED 246 (2000); COHEN, supra note 90, at 223-25, 230-34 (discussing forensic errors and their contributions to mistaken verdicts in selected infamous cases).
134. See, e.g,. COHEN, supra note 90, at 232-25, 230-34.
135. Steve Mills and Maurice Possley, Texas Man Executed on Disproved Forensics; Fire that Killed his 3 Children Could
Have Been Accidental, CHICAGO TRIBUNE, Dec. 9, 2004, C1.
136. FRIEDLAND, ET AL., supra note 92, at 237-38, 241-42.
137. Castelle, supra note 103, at 14.
138. Id.
139. Id.
140. See id.
141. See id. (noting that there was “independent” non-scientiﬁc evidence in every one of Fred Zain’s cases, evidence
likely contaminated by Zain’s fraudulent ﬁndings).

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142.
143.
144.
145.

See id. at 15-16.
See Scientiﬁc Subcommittee Recommendations, supra note 97, at 19-28.
See id. at 23-30.
Compare Clinical Laboratory Improvements Act of 1988, 42 U.S.C. §2639, with Scientiﬁc Subcommittee Recommendations, supra note 97, at 7 (noting no equivalent federal statute for crime laboratories).
146. See N. Y. EXEC. §995-b (McKinney 1996); OKLA. STAT. ANN. TIT. 74 §150.37 (requiring accreditation by the
American Society of Crime Laboratory Directors/Laboratory Accreditation Board (“ASCLAD”) or the American Board of Forensic Psychology); TEX. CRIM-PROC. CODE ART. 38.35 (accredited by the Department of
Public Safety).
147. Eric Lander, DNA Fingerprinting On Trial, 339 NATURE 501, 505 (1989).
148. Jack B. Weinstein, Science and the Challenge of Expert Testimony in the Courtroom, 77 OREGON LAW REVIEW
1005, 1011 (1998).
149. See DNA Identiﬁcation Act of 1994, 42 U.S.C. §14131(i)(a)&(c).
150. State v. Smith, 702 N.E. 2d 668, 073 (Ind. 1998).
151. Graham R. Jones, President’s Editorial — The Changing Practice of Forensic Science, 47 JOURNAL OF FORENSIC
SCIENCE 437, 438 (2002).
152. Scientiﬁc Subcommittee Recommendations, supra note 97, at 12.
153. See, e.g., Joseph L. Peterson, et. al., The Feasibility of External Blind DNA Proﬁciency Testing, Background and
Findings, 48 JOURNAL OF FORENSIC SCIENCE 21, 30 (2003).
154. Cf. NATIONAL RESEARCH COUNCIL, DNA TECHNOLOGY IN FORENSIC SCIENCE 55 (1992) (“No
laboratory should let its results with a new DNA typing method be used in court, unless it has undergone such
proﬁciency testing via blind trials.”).
155. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993).
156. Id. at 593-94.
157. See generally Imwinkelried, Flawed Expert Testimony, supra note 99.
158. See, e.g., Howard v. State, 697 So. 2d 415, 429 (Miss. 1997) (“[W]hile few courts have refused to allow some form
of bite-mark comparison evidence, . . . [s]ufﬁce it to say that testimony concerning bite marks in soft, living ﬂesh
has not been scientiﬁcally accredited at this time.”). Lisa Steele, “All we want you to do is conﬁrm what we already
know”: A Daubert Challenge to Firearms Identiﬁcation, 38 CRIMINAL LAW BULLETIN 465 (2002) (suggesting
that there is an embarrassing lack of empirical research on ﬁrearms identiﬁcation); Robert Epstein, Fingerprints
Meet Daubert: The Myth of Fingerprint “Science” Is Revealed, SOUTHERN CALIFORNIA LAW REVIEW 13
(2001).
159. See NATIONAL RESEARCH COUNCIL, THE EVALUATION OF FORENSIC DNA EVIDENCE (1996); NATIONAL RESEARCH COUNCIL, AN ASSESSMENT OF COMPARATIVE BULLET LEAD ANALYSIS (2003);
NATIONAL RESEARCH COUNCIL, ON THE THEORY AND PRACTICE OF VOICE IDENTIFICATION
(1979).
160. See FRIEDLAND, ET AL., supra note 92, at 292-93.
161. See generally, D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left in
the Dark?, 64 ALBANY LAW REVIEW 99 (2000).
162. See Mark Hansen, Expertise to Go, 86 AMERICAN BAR ASSOCIATION JOURNAL 5 (Feb. 2000) (“checkbook
credentials”); Elizabeth MacDonald, The Making of an Expert Witness: It’s in the Credentials, WALL STREET
JOURNAL, Feb. 8, 1999.
163. Scientiﬁc Subcommittee Recommendations, supra note 97, at 13.
164. Id.
165. Id. at 13-14.

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166. Castelle, supra note 103, at 14.
167. http://www.hpdlabinvestigation.org/reports.htm (July 2005).
168. See Castelle, supra note 103 at 13-14; NEW YORK TIMES, Oct. 29, 1997; AMERICAN BAR ASSOCIATION
JOURNAL March 1993, June 1993, Feb. 1996; Ofﬁce of Inspector General Memorandum of Investigation, Jan.
23, 1996, Interview of FBI agent Greg Parsons.
169. Castelle, supra note 103, at 14.
170. See Andrew E. Taslitz, Racial Auditors and the Fourth Amendment: Data with the Power to Inspire Political Action,
66 LAW AND CONTEMPORARY PROBLEMS 221, 228 (2003) [hereinafter Taslitz, Racial Auditors].
171. See RAY WHITTINGTON AND KURT PANY, PRINCIPLES OF AUDITING AND OTHER ASSURANCE SERVICES 11 (13th ed. 2001).
172. Notably, the FBI DNA Quality Assurance Standards, which governs DNA laboratories receiving federal funding,
require periodic external audits to ensure compliance with the required quality assurance standards. See Scientiﬁc
Subcommittee Recommendations, supra note 97, at 7 n. 24; 42 U.S.C. §14131(i)(a) & (c). ASCLAD does these
audits for the laboratories accredited under its program (there are few mandatory auditing procedures, however,
for forensic methods other than DNA). See Scientiﬁc Subcommittee Recommendations, supra note 97, at 7 & n. 24.
Other audits may be specially ordered where evidence is uncovered of endemic problems in a speciﬁc lab.
173. See Taslitz, Racial Auditors, supra note 170, at 230-31.
174. This Committee’s charge concerns capital cases only. The Committee takes no position on the wisdom of requiring examiner audits in other sorts of cases.

Videotaping and Recording of Custodial Interrogations
175. See Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, Northwestern School of Law,
Center for Wrongful Convictions, 6, 24-26 (2004), available at http://www.law.northwestern.edu/depts/clinic/
wrongful/documents/SullivanReport.pdf. Shorter versions of this article may be found at Thomas P. Sullivan, Police Experience with Recording Custodial Interrogations, JUDICATURE 132 (Nov.-Dec. 2004); Thomas P. Sullivan,
The Police Experience: Recording Custodial Interrogations, THE CHAMPION 24 (Dec. 2004); Thomas P. Sullivan,
Recording Custodial Interrogations: The Police Experience, FEDERAL LAW 20 (Jan. 2005); Thomas P. Sullivan,
Recording Custodial Interrogations, LAW & ORDER, 46 (Mar. 2005).
176. See Andrew E. Taslitz, Wrongful Rights, 18 CRIMINAL JUSTICE MAGAZINE 4, 8-9 (2003).
177. Welsh White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARVARD
CIVIL RIGHTS - CIVIL LIBERTIES LAW REVIEW 105, 153-554 (1997).
178. Editorial, Crime, False Confessions, and Videotape, NEW YORK TIMES Jan. 20, 2003 A24. See also STANLEY
COHEN, THE WRONG MEN 255-67 (2003) (describing the detailed events supporting the exoneration of the
Central Park jogger defendants).
179. See Illinois Commission Report, supra note 25, Recommendation 16.
180. Richard Ofshe and Richard Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENVER UNIVERSITY LAW REVIEW 979, 1118 (1997).
181. See Scheck & Neufeld, supra note 15; Ronald Duff, Wrongful Convictions: Causes and Public Policy Issues, 18
CRIMINAL JUSTICE 15, 18 (Spring 2003).
182. See WELSH S. WHITE, MIRANDA’S WANING PROTECTIONS: POLICE INTERROGATION PRACTICES
AFTER DICKERSON 140-46 (2001).
183. See id. at 146.
184. See Hugo M. Bedeau and Michael Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STANFORD
LAW REVIEW 21 (1987) (the source of these data); WHITE, supra note 182, at 144-46 (analyzing the data on
those interrogations that resulted in wrongful convictions).

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185.
186.
187.
188.
189.
190.
191.
192.
193.

CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT 37-38 (2003).
Id. at 38.
See id. at 37-38.
Id. at 38.
See generally Ofshe & Leo, supra note 180; WHITE, supra note 182, at 196-215.
See WHITE, supra note 182, at 196-215.
Miranda v. Arizona, 384 U.S. 436 (1966).
See WHITE, supra note 182, at 76-101.
LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 304 (1993) (quoting
DAVID SIMON, A YEAR ON THE STREETS (1985)).
194. See ANDREW E. TASLITZ AND MARGARET L. PARIS, CONSTITUTIONAL CRIMINAL PROCEDURE 590612 (2d. ed. 2003) (summarizing the case law).
195. See id. at 645.
196. Shaila K. Dewan, New York Police Resist Videotaping Interrogations, NEW YORK TIMES, Sept. 2, 2003 (quoting
Commissioner Kelly).
197. See id.
198. See id.
199 Id.
200. Id.
201. Id.
202. Thomas Sullivan, Three Police Station Reforms to Prevent Convicting the Innocent, 17 APR CBA RECORD 30
(April 2003).
203. Id. at 32.
204. 725 ILL. COMP. STAT. ANN. 5/103-2.1 (West 2004); 705 ILL. COMP. STAT. ANN. 405/5-401.5 (West 2004).
205. ME. REV. STAT. ANN. tit. 25 § 2803-B(1)(K) (West 2004); H. B. 382, 47th Gen. Assem., Reg. Sess. (N.M. 2005).
D.C. OFFICIAL CODE §§ 5-116.01, 5-116.03 (2005).
206. Stephan v. State, 711 P.2d 1156 (Alaska 1985); State v. Scales, 518 N.W.2d 587 (Minn.1994); State v. Jerrell,
No.2002AP3423 (Wis. July 7, 2005), available at http://www.courts.state.wi.us/sc/opinion/DisplayDocument.
html?content=html&seqNo=18921.
207. Commonwealth v. DiGiambattista, 813N.E.2d 516, 533-34 (Mass. 2004).
208. “Guidelines for Electronice Recording of Interrogations”, email communication with Eleanor Sinnott, Chief
Legal Counsel for Massachusetts State Police (August 3, 2005).
209. Interview with Thomas Sullivan, July 21, 2005.
210. See Sullivan, supra note 202.
211. See American Bar Association, House of Delegates, Report No. 8A, Resolution on Videotaping Custodial Interrogations (passed February 2004).
212. Cf. TASLITZ & PARIS, supra note 194, at 210 (prosecution ordinarily has the burden of proving the existence of
an exception to the rule requiring suppression of the fruits of all unconstitutional searches or seizures).
213. Cf. Andrew E. Taslitz, The Inadequacies of Civil Society: Law’s Complementary Role in Regulating Harmful
Speech, 1 MARGINS 306, 380 & n. 415 (2001)(employer beneﬁts in discrimination suits where he can show
that his company has instituted adequate procedures to discourage hostile environment sexual harassment);
Ellen McLaughlin and Carol Merchasin, Training Becomes Important Step to Avoid Liability, NAT. L.J. BIO,
Jan. 29, 2001, at Bio (“Training a work force on a company’s anti discrimination/harassment policy has thus
become arguably the most important tool for an employer that wants to protect itself from Title VII liability
and punitive damages.”).
214. Cf. Andrew E. Taslitz, Report to the American Bar Association House of Delegates in Support of the Criminal Justice
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Section Resolution on Eyewitness Testimony (April 2004) (reviewing case and administrative law on, and recommending, cautionary jury instructions where lineup and photo spread procedures have not been videotaped or
otherwise adequately recorded or where other procedural factors create a risk of misidentiﬁcation).
215. See Appendix for dissent of Beth Wilkinson.

CHAPTER VII: DUTY OF JUDGE AND ROLE OF JURY
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.

21.
22.
23.
24.
25.

26.
27.
28.

Jackson v. Virginia, 443 U.S. 307, 318 (1979) (emphasis in original).
Id. at 318-19.
See Lissa Grifﬁn, The Correction Of Wrongful Convictions: A Comparative Perspective, 16 AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW 1241 (2001).
Jon O. Newman, Beyond “Reasonable Doubt,” 68 NEW YORK UNIVERSITY LAW REVIEW 979, 991 (1993).
James S. Liebman, The Overproduction of Death, 100 COLUMBIA LAW REVIEW 2030 (2000).
See Gregg v. Georgia, 428 U.S. 153 (1976).
SCOTT TUROW, ULTIMATE PUNISHMENT: A LAWYER’S REFLECTIONS ON DEALING WITH THE
DEATH PENALTY 34 (2003).
Id. at 37.
Steven Semeraro, Responsibility in Capital Sentencing, 39 SAN DIEGO LAW REVIEW 79, 83, 138 (2002).
Newman, supra note 4, at 992.
Id. at 987.
See, e.g., Spaziano v. Florida, 468 U.S. 447 (1984).
Witherspoon v. Illinois, 391 U.S. 510, 519 (1968).
Spaziano v. Florida, 468 U.S. 477, 469-70 (1984) (Stevens, J., dissenting).
Lockhart v. McCree, 476 U.S. 162, 181 (1986).
Lockett v. Ohio, 438 U.S. 586, 604 (1978).
Franklin v. Lynaugh, 487 U.S. 164 (1988).
Jennifer R. Treadway, Note, “Residual Doubt” in Capital Sentencing: No Doubt It Is an Appropriate Mitigating Factor, 43 CASE WESTERN RESESERVE LAW REVIEW 215, 222 (1992).
See id.
See William J. Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 INDIANA
LAW JOURNAL 1043, 1090-93 (1995); James Luginbuhl and Julie Howe, Discretion in Capital Sentencing
Instructions: Guided or Misguided?, 70 INDIANA LAW JOURNAL 1161, 1164-67 (1995); Jordan M. Steiker, The
Limits of Legal Language: Decisionmaking in Capital Cases, 94 MICHIGAN LAW REVIEW 2590, 2596-99 (1996).
See Steiker, supra note 20; see also Craig Haney, Taking Capital Jurors Seriously, 70 INDIANA LAW JOURNAL
1223 (1995).
See Bowers, supra note 20.
Woodson v. North Carolina, 428 U.S. 280 (1976).
See Steiker, supra note 20.
See, e.g., Weeks v. Angelone, 528 U.S. 225 (2000) (upholding an instruction that arguably left the jury with the
impression that it was required to sentence the defendant to death if it found the requisite aggravating factors
existed). See also id.at 237-39 (Stevens, J, dissenting); Stephen Garvey, Sheri Lynn Johnson, and Paul Marcus,
Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases, 85 CORNELL LAW REVIEW 627
(2000); see also Bowers, supra note 20.
See Steiker, supra note 20, at 2622 n.134.
Garvey, et al., supra note 25.
Id.
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EDITOR’S NOTES FOR CHAPTER VII
E1.
E2.
E3.
E4.
E5.
E6.
E7.
E8.

530 U.S. 466 (2000).
536 U.S. 584 (2002).
125 S. Ct. 21 (2004).
125 S. Ct. 738 (2005).
125 S. Ct. 26 (2004).
Ring v. Arizona, 536 U.S. 584, 621 (2002) (O’Connor, J., dissenting).
487 U.S. 164 (1998).
No. 04-928.

CHAPTER VIII: ROLE OF PROSECUTORS
1.
2.
3.
4.

Gregg v. Georgia, 428 U.S. 153 (1976).
See FLA. REV. CRIM. PROC. 3.220.
Brady v. Maryland, 373 U.S. 83 (1963).
See Jackson v. State, 770 A.2d 506, 514 (Del. 2001) (requiring disclosure of an implicit promise of leniency, which
the court labeled a “troubling practice,” and which was used by the state in an effort to avoid disclosure and the
undermining of a witness’s credibility).
5. See United States v. Wade, 388 U.S. 218 (1967).
6. See Recommendation 8 of this report, supra Chapter III.
7. Samuel R. Gross, Lost Lives: Miscarriages of Justice in Capital Cases, 61 LAW & CONTEMPORARY PROBLEMS
125 (1998).
8. See N.Y.CRIM. PROC. LAW § 250.40.
9. David Baldus and George Woodworth, Proportionality: The View of the Special Master, 6 CHANCE MAGAZINE
1 (1993).
10. See THE CONSTITUTION PROJECT, MANDATORY JUSTICE: EIGHTEEN REFORMS TO THE DEATH
PENALTY 23-29 (2001). In addition to the sources referenced in that publication, there is a wealth of literature suggesting that charging decisions in death penalty cases depend in part on illegitimate factors such as
the race of the victim, the urban/rural nature of the county in which the crime occurred, and the race of the
prosecutor. See, e.g., Report of the Governor’s Commission on Capital Punishment, Recommendation 30
(April 15, 2002) [hereinafter Illinois Commission Report] (discussing and citing studies demonstrating rural/
urban bias in death penalty charging decisions); Jeffrey J. Pokorak, Probing the Capital Prosecutor’s Perspective:
Race of the Discretionary Actors, 83 CORNELL LAW REVIEW 1811 (1998) (addressing impact of prosecutor’s
race on charging decision); Samuel R. Gross and Robert Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimizing, 37 STANFORD LAW REVIEW 27 (1984) (analyzing
impact of victim’s race on charging decision); see also Garth Davies, Jeffrey Fagan, Andrew Gelman, Alexander
Kiss, James Liebman, and Valerie West, A Broken System, Part II: Why There Is So Much Error in Capital Cases,
and What Can Be Done About It, (documenting wide disparities in charging decisions), available from the
Criminal Justice Reform Education Fund, at http://justice.policy.net/cjedfund/dpstudy/.
11. See Recommendation 16 of this report, supra Chapter VI.
12. The Illinois Commission recommended staggered terms of ofﬁce relating to the terms of ofﬁce of its member
elected ofﬁcials. The Commission suggested that most members have 4 year terms, although staggered, “so that
the Committee would have stability; there would be several members with shorter terms to enable a rotation
through the process with some regularity.” See Illinois Commission Report, supra note 10, Recommendation 30.
Our recommendations concerning the Committee’s composition are adapted from the Illinois Commission,
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which proposed: “(1) the elected Attorney General or his or her designee; (2) the elected State’s Attorney of Cook
County [head of prosecution in the state’s largest county] or his or her designee; the current president of the Illinois State’s Attorneys Association; (4) a State’s Attorney from some County other than Cook chosen by lottery;
and (5) a retired judge, preferably with experience in criminal law and/or appellate level cases, who would be
appointed by the Governor.” See id.
13. See, e.g., id. The Illinois Commission recommended:
The death penalty sentencing statute should be revised to include a mandatory review of death eligibility
undertaken by a state-wide review committee. In the absence of legislative action to make this a mandatory
scheme, the Governor should make a commitment to setting up a voluntary review process, supported by
the presumption that the Governor will commute the death sentences of defendants when the prosecutor
has not participated in the voluntary review process, unless the prosecutor can offer a compelling explanation, based on exceptional circumstances, for the failure to submit the case for review.
The Illinois legislature has not yet implemented a mandatory review process of charging decisions. See Edwin
Colfax, Status of Action on Recommendations of the Illinois Governor’s Commission on Capital Punishment, available from Northwestern University School of Law’s Center on Wrongful Convictions, www.law.northwestern.
edu/depts/clinic/wrongful/documents/GCCPStatus.htm.
Thomas Sullivan, a highly-respected former prosecutor and co-chair of the Illinois Commission, has called for
Illinois to continue its moratorium on executions because “some of the most important [Commission] recommendations have yet to be adopted.” Thomas P. Sullivan, Death Penalty: For Capital Punishment, More Reforms
Necessary, CHICAGO TRIBUNE, Jan. 4, 2004. Recommendation 30 is among those that Sullivan identiﬁed as
“most important.”
14. See United States Department of Justice, U.S. Attorney’s Manual § 9-10.020, available from the Department of
Justice, www.usdoj.gov.
15. Vienna Convention on Consular Relations, April 21, 1963, 596 U.N.T.S. 262-512. Article 36 of the VCCR provides:
Communication and Contact with Nationals of the Sending State
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular ofﬁcers shall be free to communicate with nationals of the sending State and to have
access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular ofﬁcers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform
the consular post of the sending State if, within its consular district, a national of that State is
arrested or committed to prison or to custody pending trial or is detained in any other manner.
Any communication addressed to the consular post by the person arrested, in prison, custody or
detention shall also be forwarded by the said authorities without delay. The said authorities shall
inform the person concerned without delay of his rights under this sub-paragraph;
(c) consular ofﬁcers shall have the right to visit a national of the sending State who is in prison,
custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison,
custody or detention in their district in pursuance of a judgment. Nevertheless, consular ofﬁcers
shall refrain from taking action on behalf of a national who is in prison, custody or detention if
he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the
laws and regulations of the receiving State, subject to the proviso, however, that the said laws and
regulations must enable full effect to be given to the purposes for which the rights accorded under
this Article are intended.
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16. Avena and Other Mexican Nationals (Mexico v. United States of America), Merits, Judgment of 31 March 2004. The
Avena judgment and other materials relating to the case can be found on the ICJ’s website at http://www.icj-cij.
org/icjwww/idocket/imus/imusframe.htm.
17. See JORDAN J. PAUST, INTERNATIONAL LAW AS LAW OF THE UNITED STATES 115-16 (2nd ed. 2003).
18. Id. at 116 (quoting United States v. Pink, 315 U.S. 203, 230-32 (1942)).
19. Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of
Disputes, April 21, 1963, 596 U.N.T.S. 262-512; see also Torres v. Mullin, 124 S.Ct. 919 (2003) (opinion of Stevens,
J., respecting the denial of the petition for certiorari) (denial of certiorari reported at 123 S.Ct. 1580 (2003)).
Article I of the Optional Protocol provides:
Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory
jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an
application made by any party to the dispute being a Party to the present Protocol.
The ICJ has the authority to interpret the VCCR for purposes of the disputes brought before it. Its interpretations and decisions would appear to be binding upon the United States insofar as those disputes are concerned,
although presumably they are not binding within the United States for other purposes. See PAUST, supra note
17, at 12-15. But the United States Supreme Court has not yet spoken clearly on this issue. In the Torres case,
cited above, the Court denied certiorari in a case raising the issue. In his “opinion respecting the denial,” Justice
Stevens implied that he considers the ICJ’s interpretations to be binding in Convention-related disputes: “In its
authoritative interpretation of Article 36 in the LaGrand Case, the International Court of Justice explained . . .”
Torres, supra, at 919 (opinion of Stevens, J., respecting the denial of the petition for certiorari, emphasis added;
citations omitted). Justice Breyer also wrote an opinion in the Torres case, dissenting from the denial of certiorari.
With respect to the question whether the treaty and ICJ interpretations bind the United States, Breyer stated that
“Torres’s and Mexico’s arguments seem substantial.” Torres, 124 S. Ct. 562, 565 (2003) (opinion of Breyer, J., dissenting from denial of certiorari). Justice Breyer also noted:
[T]he United States has not ﬁled a brief directly addressing the issues Torres has raised in this case, nor has
any group of individuals expert in the subject of international law. The United States has ﬁled a brief in
opposition in the related cases Ortiz v. United States, and Sinesterra v. United States, in which it argues, inter
alia, that “the ICJ does not exercise any judicial power of the United States, which is vested exclusively by the
Constitution in the United States federal courts.” While this is undeniably correct as a general matter, it fails
to address the question whether the ICJ has been granted the authority, by means of treaties to which the
United States is a party, to interpret the rights conferred by the Vienna Convention.
Id. (citations omitted).
20. Bureau of Consular Affairs, U.S. Department of State, Consular Notiﬁcation and Access, Part One: Basic Instructions, available at www.travel.state.gov/notiﬁcation1.html.
21. Avena judgment, supra note 16 at paragraph 90.
22. See id.
23. Brief of the Government of Mexico at 66-7. The brief can be found on the ICJ’s website, supra note 16.
24. In his ofﬁcial press release announcing the grant of clemency, Governor Henry took note of the ICJ’s decision
and acknowledged that “the ruling of the ICJ is binding on U.S. Courts.” Said Governor Henry, “I took into
account the fact that the U.S. signed the 1963 Vienna Convention and is part of that treaty.” See Press Release of
May 13, 2004, available at http://www.governor.state.ok.us/display_article.php?article_id=301&article_type=1.
Just prior to Governor Henry’s action, the Oklahoma Court of Criminal Appeals had stayed Torres’s execution
based on the ICJ’s decision. See id.
25. Medellin v. Dretke, No. 04-5928 (U.S. 2004)
26. George W. Bush, Memorandum for the Attorney General (Feb. 28, 2005), App. 2 to Brief for United States as
Amicus Curaie 9a.
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27. See Louis Klarevas and Howard Schiffman, The Supreme Court Dismisses the Controversial Consular Rights Case:
A Blessing in Disguise for International Law Advocates?, FindLaw (June 6, 2005).
28. See The International Justice Project, Current Cases and Past Cases, available at www.internationaljusticeproject.org.
29. Torres, supra note 19 at 919 (opinion of Stevens, J., respecting the denial of the petition for certiorari).
30. See Avena, supra note 16; see also LaGrand (Germany v. United States of America), Merits, Judgment of 27 June
2001. The LaGrand judgment and other materials relating to the case can be found on the International Court of
Justice website at www.icjcij.org/icjwww/idocket/igus/igusframe.htm.
31. The ICJ has declined to hold that the VCCR requirement of notiﬁcation “without delay” necessarily requires notiﬁcation before interrogation. See Avena, supra note 16, at paragraph 87. Instead, the notice requirement is tied
to the point at which the authorities realize, or have grounds to think, that the person is a foreign national. Id. at
paragraph 88.
32. LaGrand, supra note 30, paragraph 74.
33. U.S. Department of State, 7 FOREIGN AFFAIRS MANUAL 400, Annex 28.
34. See United States v. Li, 206 F.3d 56, 63 (1st Cir. 2000).
35. This is the interpretation of the “without delay” standard adopted by the ICJ. Avena, supra note 16, at paragraphs
87-88.
36. We note with particular interest that since 1999 California has required its law enforcement ofﬁcers to provide
notiﬁcation of consular rights “upon arrest and booking or detention for more than two hours” of a foreign
national. Cal. Penal Code § 834c(a)(1)(1999).

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