« Initial reactions to white-paper outlines | Main | The power of the personal »

March 28, 2007

Recent articles on prosecutorial tunnel vision

I mentioned in class that some of the latest scholarship on wrongful convictions and false confessions is focused on the idea of prosecutorial tunnel vision.  Here are two articles discussing this idea:

Abstract:  The 170-plus postconviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent.  The specific problems include eyewitness error and flawed eyewitness procedures, false confessions, forensic error or fraud, police and prosecutor misconduct, inadequate defense counsel, jailhouse snitch testimony, and others. A theme running through almost every case, that touches each of these individual causes, is the problem of tunnel vision.

Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system.  This Article analyzes tunnel vision at various points in the criminal process, from police investigation through trial, appeal, and postconviction review.  The Article examines the causes of tunnel vision in three domains. First, tunnel vision is the product of natural human tendencies - cognitive distortions that make it difficult for human beings in any setting to remain open-minded. Second, institutional or role pressures inherent in the adversary system can exacerbate the natural cognitive biases, and induce actors to pursue a particular suspect too soon or with too much zeal.  Finally, in some ways the criminal justice system embraces tunnel vision as a normative matter; it demands or teaches tunnel vision overtly, as a matter of policy or rule.  This Article concludes by examining possible corrective measures that might be adopted to mitigate the effects of tunnel vision.

Abstract:  This essay, written as part of a symposium on loyalty, examines the dynamics leading to the disturbing phenomenon of prosecutorial tunnel vision.  Specifically, it asks why prosecutors become loyal to a particular version of events - the guilt of a particular suspect - even when that version of events has been discredited.  The essay begins with an examination of the concept of loyalty and the ambiguities inherent in that concept. It next discusses the relevance of these ambiguities to the divided loyalties of the prosecutor within the complex group dynamics of the prosecutor's office. It then considers the prosecutor's divided loyalties as one aspect of the larger issue of divided loyalties within the adversary system.  Finally, it draws on psychological insights, particularly from the field of cognitive neuroscience, to place these conflicts in the broader context of loyalty to one's beliefs. It concludes by suggesting that reforms are more likely to succeed when they recognize and attempt to ameliorate our ingrained and tenacious loyalty to pre-existing beliefs.

March 28, 2007 in Quality of counsel | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Recent articles on prosecutorial tunnel vision:


I just have a really quick comment or two.

Overall, both speakers were compelling and presented a point of view that is important to the debate.

However, the harping on the death qualification of the jury is a particularly weak complaint in my opinion and doesn't really "skew" anything. Death qualification of the jury, properly performed, eliminates both those who admit to being diametrically opposed to the death penalty but also those who are greatly in favor of the death penalty or who believe that anyone indicted is guilty. It gets both ends with the goal of sitting a jury of those who will follow the law and impose the death penalty if circumstances warrant it. It does not serve to only shave potential jurors from one end of the spectrum as seems to be the implication every time the complaint comes up.

In many jurisdictions imposition of the death penalty for aggravated murder is the law (after weighing all the factors). If a juror admits to being so disposed against the death penalty as to being unable to weigh aggravating factors in favor of death against mitigating factors and that juror will resort to LWOP without even considering death, that juror is admitting to not being willing to follow the law. Such a juror has no place on an aggravated murder trial jury because he is unwilling to follow the law. Particularly in those jurisdictions where a jury recommendation of death must be unanimous, one such juror essentially qualifies the jury against death. That may be all well and good for abolitionists, but it is not the law, nor should it be.

Posted by: Ben D | Mar 29, 2007 3:45:40 PM

I think that death qualifying the jury may be less biased that some people think, but I also believe that there are more people opposed to the death penalty than those that would automatically convict without hearing the evidence. That is my impression, I could be wrong.

However, having two separate juries would take care of the issue entirely. If a state is going to have the death penalty, I think it is the only responsible way to fairly determine guilt.

Posted by: Kristin | Mar 30, 2007 8:13:41 AM

Ben - what about the "fair cross-section" requirement of the jury? Does a jury, made up entirely of persons who are willing to impose the death sentence, truly represent a fair cross-section of the community?

Posted by: Brett T. | Mar 30, 2007 10:19:28 AM

Brett, yes, it does. A "fair cross-section[ed]" jury does not require a jury including someone or anyone from every single socio-economic or political viewpoint or historical background. Convicted felons, for example, are excluded and they are certainly included in a "fair cross-section" of the community. If someone stated that they would acquit because they do not believe in prison (or retributive punishment) for a felony charge (or any charge), they would properly be excluded. There may be other problems with death-qualifying a jury based on some of the other idiosyncrasies they bring to the table, but if a prospective juror is not willing to play by the rules of the game, they should not be allowed to play at all. Allowing them to do so is nothing but (yet another) back-door attempt to undermine a practice that should be fought through the political, democratic process, not through subterfuge.

Posted by: Ben D | Mar 30, 2007 10:42:32 AM

I guess my point, poorly offered, was that unlike prospective jurors who might say "I don't believe in prison," a *large* percentage of our population does not believe in capital punishment. Because the group is so large, I have a hard time believing such exclusion necessarily protects an accused's right to have a fair cross-section of the community sit and condemn.

Your point is well-taken, but the suggestion that excluded, anti-death penalty prospective jurors would seek to engage in "back-door" "subterfuge" is a bit over the top, no?

The fact is, we have conflicting interests. Jurors are expected to "play by the rules," but the accused is entitled to be condemned only by a fair cross-section of the community. Eliminating a large chunk of the population to serve the first interest, I am suggesting, is quite contrary to the second. How do you suggest we reconcile the two? Certainly your answer can't be to throw out the second interest in capital cases.

And dancing at the edges of this discussion remains the point (proven or unproven, I haven't read the literature) that those prospective jurors who are willing to impose death are also disproportionately predisposed to convicting in the first place. If that is true, the cross-section in capital cases becomes even more "unfair."

Posted by: Brett T. | Mar 30, 2007 11:29:04 AM

Brett, my point wasn't over the top because I think it might have been misunderstood (or poorly articulated). I'm not saying the individual juror who is against the DP who becomes seated on a capital jury is doing so for the purpose of subterfuge. What I am saying is that abolitionists view this as one additional way to undermine the system with which they so vehemently disagree. If they win the fight to get those diametrically opposed to the DP onto a death penalty jury, they know they can ensure (particularly in those instances where unanimous recommendations of death are required) that the DP is not imposed. That, in my book, is exactly the definition of "subterfuge". What they cannot win (at least as of yet) through the democratic process, they attempt to undermine through any alternative means. I'm not even stating this as a suggestion - I submit that this agenda is often at the heart the abolitionist's motivations in fighting most of these individual battles - not to ensure a fair jury trial as you are currently (and quite legitimately) concerned, but rather to stop executions period. I'm just saying I see the endgame that is at issue here and it is not a pure concern for fair-minded, balanced juries.

For example, the binder Julie Przybysz gave to Professor Berman is from "Ohioans to Stop Executions." She might be fighting this current challenge on Eighth Amendment grounds because of a concern that some prisoners might experience "cruel and unusual punishment" through an inadequate execution process but that is not ultimately her agenda. Her agenda is clearly delineated by the name of the organization whose materials she gave to Professor Berman. I think it's important to make as transparent as possible the motivations driving some of these debates. We can talk about whether the jury is fair or not and that is a completely legitimate debate, but it's patently obvious that is not all that is going on in that debate when it is entered by abolitionists. It is not, in this instance to ensure a fair jury trial – for if it were, they would be willing to set aside their ideological beliefs and follow the law – it is to use the façade of a fair jury trial as a means to stop executions.

I appreciate that there are competing interests at stake in this discussion, however, I think that you’re overplaying your hand in two ways – first, by overstating the danger to fair jury trials and second, by positing that the competing interests are irreconcilable.

With regard to the first instance, I do not believe the risk to a fair jury trial is at all compelling or, in most cases, even real. As you pointed out, “unlike prospective jurors who might say ‘I don't believe in prison,’ a *large* percentage of our population does not believe in capital punishment”. Equally as true, there is a small portion of the population consisting of “those prospective jurors who are willing to impose death” and who “are also disproportionately predisposed to convicting in the first place”. As I initially pointed out, death qualifying the jury eliminates both ends of the spectrum – at least with competent attorneys performing voir dire. However, one end of the spectrum is admittedly considerably wider. So what? As long as both extremes are not allowed to function as jurors, I think a right to a fair jury is protected and I think that is satisfied with the current death qualification. Even if any given individual juror is, as you posited (and which I do not necessarily believe is at all common, but will accept for current purposes), “disproportionately predisposed to convict”, the right to a fair jury trial is ensured by the burden the government must meet: a unanimous guilty verdict and (in many, if not most jurisdictions) a unanimous recommendation of death. On the flip side of this, only one prospective juror can blow up either a verdict or a recommendation of death. Together, the small population of the “problem” juror that you have isolated and the unanimity requirements, in my mind, satisfy this concern. No disrespect to Dale Johnston or Gary Beeman, as they both suffered terrible injustices, not only in being placed in prison on death row, but in not being in any way meaningfully compensated for their experiences once exonerated, but the 80% figure Johnston quoted relating to this arena smacks of a manufactured, biased statistic dripping with “fudge”. I don't buy that for even a half-second. But he’s clearly a biased individual (with damn good reason) who himself has an agenda (also with damn good reason). If I were in his shoes, I'm sure I would feel the same way. However, the very fact that he and Gary Beeman were speaking to us and were not executed proves that on some level that the system works, albeit imperfectly. The claim that Beeman made that he would not be exonerated if in the court system today is unfounded, but it “sounded good,” didn’t it?

Second, I do not believe that the competing interests are irreconcilable. I think the current system does a pretty good job of doing just that. Assuming that “pretty good” is not good enough, the other options I think will ultimately prove no better. Sitting dual juries for both the trial phase and the penalty phase may assuage this problem, but maybe not. People aren’t stupid and an abolitionist asked to sit on a trial phase jury will likely come to know, through some means, that the jury on which they sit is deciding a capital case, even if not deciding the ultimate punishment. Would that person be able to render a fair verdict during the guilt phase knowing that a verdict of guilt will be followed by the capital penalty phase? I don’t know. My presumption is that such a juror may want to have no part at all in furthering along the process that may lead to a death sentence and may vote accordingly. If we could be sure that such persons could render fair verdicts and keep their politics out of the courtroom, fighting that battle on the proper grounds, it would not be an issue, but from death penalty opponents to anti-abortion protestors outside clinics, too often they do not care what means they must use provided those means suit their ends.

I think there are, for the most part, already adequate safeguards in this realm. There are many instances of even death-qualified jurors who claim to be able to impose death being unable to sign their name to a death recommendation when it is otherwise warranted. In my eyes, allowing death-qualified jurors to impose their reasoned, open judgment according to the law is sufficient. I think that’s what we have. However, there are exceptions to every rule. And even jurors who are “predisposed to convicting in the first place” are still implicitly open to the power of persuasion. And that’s exactly what a trial is for.

I don’t know. Maybe I’m naïve.

Posted by: Ben D | Mar 30, 2007 2:04:13 PM

I don't have a whole lot more to say on the issue, as my points were pithy and few, but I didn't want to leave your post hanging without response - especially because it was such a thorough, well put-together post.

I'm trying to decide if I question the "fairness" of a death-qualified jury because I believe in the importance of a fair cross-section, or if deep down on some level I just hope that it will make impositions of the death penalty impossible. The question of intellectual honesty here is a difficult one. I believe deep down, though, I'm coming from a place where it just bothers me that you could have a community that as a whole is strongly opposed to the death penalty, but sits in a state which provides for the death penalty, and that community cannot choose to condemn the accused in the manner it - in the aggregate - believes is appropriate. That's what the fair cross-section requirement was all about in the first place. The community is harmed by the crime, and that community should therefore be entitled to choose who and how to punish in order to heal.

Posted by: Brett T. | Mar 30, 2007 8:57:11 PM

The comments to this entry are closed.