Anecdotal Proof

Here’s an interesting exchange, and a stark contrast, in comments over at Gamso’s blog, about estimating the error rate of the criminal justice system:

Prosecutor type says this.

Scott Greenfield says this.

For what it’s worth, my estimates, mostly based on experience from years ago, and SHG’s are almost exactly the same.  But there isn’t universal agreement on this.  I know criminal defense lawyers who would be more in agreement with the prosecutor type.

What accounts for the difference?  Mindset, apparently.  Like me (I think), SHG is the kind of person who could never be a prosecutor even though I believe at one time, a long time ago, he was a police officer.

Well, maybe I shouldn’t say never.

In my own case, it’s not that I have any moral objection to prosecuting.  It just seems my efforts are far more needed elsewhere, and that there are all kinds of others lined up to do the prosecuting.  It’s a much easier job, for the most part.  And I also have an aversion to ease.  Maybe I’m compensating for something.

But I digress.

Let’s put it another way.  It would be hard for a prosecutor, well knowing that conviction rates are north of 95%, to live with himself unless he believed what the prosecutor type believes.  So his anecdotal belief is consistent with maintaining a positive self-image, or self respect, or maybe even self-preservation.

But it isn’t necessary in any personal sense for SHG – or me for that matter – to believe that overcharging and wrongful convictions are much higher than the prosecutor type believes.  In other words, as between the two competing takes on things it is SHG’s and mine that is more likely to be a dispassionate and objective appraisal.

Anecdotally speaking.  Because the Bureau of Justice statistics is never going down this road.

Beyond anecdotes, however, I would note (no link right now, but I certainly don’t mind if someone else finds it and brings it to my attention) that some years back when there was a sufficient sample of DNA exonerations the Innocence Project published something indicating that the rate of wrongful convictions was pretty much completely in line with SHG’s and my estimates.

So there’s that, then.



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2 responses to “Anecdotal Proof

  1. Min

    I would have guessed around 15% wrongful convictions, **not counting guilty pleas**. That’s based on the rate of DNA based reversals, and the thought that wrongful convictions are higher for less serious crimes, where the death penalty or life imprisonment is not the result of a wrongful conviction. It is also based upon the greater likelihood that innocent people will be willing to go to trial rather than plead guilty. The idea that fewer than 5% of people who go to trial are innocent seems absurd on its face. So I seem to fall in the middle, I guess.


    • Min

      BTW, my wife’s father was both a policeman and a lawyer. At one point as a policeman, because of an injury he was taken off the beat and assigned to court duty. Then he saw how often people were screwed by the system and decided to become a criminal lawyer.


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