Paulino

Henessys Paulino
Persuading and Advocating paper draft
Dr. Spielvogel
CAS 138T
4/5/16
The U.S. Courts were created under Article III of the Constitution to
administer justice fairly and impartially, within the jurisdiction established by the
Constitution and Congress 1. The purpose of the US Criminal Justice System is to
deliver justice for the community, by convicting and punishing the guilty, while
protecting the innocent 2. However, more frequently than expected, innocent people are
being wrongfully accused for acts they did not commit. The Innocence Project, an
organization that focuses solemnly on exonerating the wrongfully convicted, has
exonerated 337 individuals since 1989 3. This number might not seem substantial,
however one can argue that even one person wrongfully accused it excessive. Also, this
number does not include individuals who died in prison or those whose were not granted
another trial to prove their innocence. According to the National Registry of Exonerations
there have been a total of 1761 exonerations in the United States 4, this number includes
individuals exonerated through the Innocence Project and those who were lucky enough
to have an important figure look at their case and exonerate them.

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The Graph above depicts the number of death row exonerations per state in the
United States 5. Last year the Illinois State Academy of Science conducted a research in
which they found that 4.1% of those who were sentenced to death in the United States
were later shown to be innocent 6.That is 1 in every 25 of those sentenced to death were
not guilty. That number is astonishingly high for a court system that claims to make no
mistakes. Those innocent people have spent decades, not only in jail, but awaiting their
death for a crime they did not commit, while the real perpetrator was roaming the streets
committing more crimes. The United States imprisons more that 2 million people per
year, meaning that even one percent of those who were wrongfully convicted equates to
tens of thousands of tragic errors 7. This issue is of upmost importance and relevance to
us, because being wrongfully convicted can happen to anyone. It is also our tax dollars
that finance for an innocent person to be kept in prison, since our tax dollars is what
keeps prisons and jails running.

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Antonin Scalia (1936 - 2016) was an associated Justice of Supreme Court

appointed by Ronald Regan. He claimed that individuals were rarely if ever wrongfully
convicted. In his quest to quench roomers on the wrongfully convicted he presented a
case in which a convicted felon, Henry Lee McCollum, was accused of sexually
assaulting an 11-year-old girl, then proceeded to suffocating her with her own panties 8.
He argued that Lee was a perfect example of someone who should be placed on death
row. Scalia believed that someone who committed such a heinous crime should be put to
death. Remarkably, soon after his argument Lee was pardoned and found innocent of the
crime through DNA evidence. It was found that the perfect man who deserved to be on
death row was actually innocent. Scalia devoted his entire life on advocating for the death
row and for arguing that individuals are rarely wrongfully convicted. However, his
perfect example was found to be not guilty and pardoned by the governor of North
Carolina. If it were up to Scalia, Lee would have long been murdered for a crime he did
not commit. How can we pretend that individuals are rarely wrongfully convicted when
such a high figure in the court system, such as Scalia, cannot advocate for his cause
without running into someone who was wrongfully convicted?
The innocence project is an organization that focuses its resources on exonerating
individuals who are innocent through DNA evidence. They get up to 4 letters daily from
inmates who claim to be innocent 9, as one might expect they do get mail form
individuals who are guilty of their crime, however those who are innocent can be difficult
to get to, because they do not have enough man power to cover all of the cases. That is
why we must take action before the fact, and prevent these wrongfully accusations
instead of intervening after the fact when it might be too late. There are many things that

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go into someone being wrongfully accused, however we have narrowed it down to one
major causes: eyewitness testimony.
Contrary to popular belief our memory is not like a camera. Humans do not
always perceive what happens around us correctly. Another popular rumor is that
individuals remember traumatic events more vividly than they remember normal events;
these memories are called flashbulb memories. Many claim that these memories are as if
our brains recorded what was happening around us, because the traumatic experience
engrained into our brains. A survey done called national study of 9/11 memories
conducted by researchers of New School University and New York University claim that
the flashbulb memories might be even more inaccurate than normal memories 10. A
survey was completed by a random sample of individuals right after the 9/11 attacks
asking a variety of questions pertaining to what happened that day. One year later the
same group was given the exact survey, and was then given the exact survey three years
later; what they found was astonishing. The same people who took the exact same survey
answered differently for each question, meaning that our memory does not work like a
camera and in fact what we remember is dependent on our environment and is subject to
change at any moment 11. One reasoning as to why flashbulb memories are inaccurate is
because of the stress levels experienced by the victims or the bystanders at the time of the
attack. Stress has a negative impact on the retrieval of information. If an individual is
stressed during the attack, which tends to happen, then their testimony can be faulty
because stress levels do interfere with memory 12.
With that in mind, why is it that the court allows eyewitness testimony to be a
valuable piece of evidence? Half of those who were wrongfully accused were due to

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incorrect misidentification by an eyewitness. A case that beautifully depicts the

malleability of human memory is the Ronald Cotton case.

Jennifer Thompson was attacked and raped in her apartment. She took
steps to see her rapist throughout that evening, intentionally turning on
the light to get a look at him or paying attention to him when the light
from a stereo system lighted his face. During these brief glimpses,
Thompson says she tried to memorize features of the rapist. Thompson,
even in a moment of danger and in the midst of a deplorable crime, had
the wherewithal to outsmart her rapist and escape through the door,
running to a neighbors home. Jennifer went from the hospital to the
police station to give her statement. She helped police to create a sketch of
the assailant. She recalls that during the time that she was working on the
sketch she was doing her best to keep her composure and to keep [her]
memory straight. The composite sketch was circulated around local
media. Per Thompsons description, the assailant was a young, lightskinned Black male, around six feet tall and close to 175 pounds. After
the anonymous tip was sent in police made two separate lineups with
Cotton in it. In both cases Thompson chose Cotton from the lineup.
Thompson was so confident that Cotton was her assailant that her
eyewitness testimony was the only piece of evidence against Cotton, and
that was sufficient for the jury to find him guilty. He was sentenced to life
in prison. While in prison, Ronald Cotton came to believe that another
inmate, Bobby Poole, actually committed the rape. Other inmates stated

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that Poole even admitted to the crime. Ronald Cotton was able to obtain a
new trial. Bobby Poole was called to the stand and denied any
involvement in the rape. Now, not only did Jennifer Thompson state that
Ronald Cotton was her rapist, but she also confidently told them that
Bobby Poole was not her rapist. Ronald Cotton was freed after over a
decade in prison; modern technology allowed for the semen to be sent for
DNA testing. Ronald Cotton, the man Jennifer Thompson so confidently
misidentified, as her rapist had not committed the crime. The DNA instead
matched Bobby Poole 13.
Thompson saw her assailant for a full 20 minutes and still did not correctly
identify her perpetrator. She was under a lot of stress both while she was being attacked
and when she was picking someone from a lineup. Her stress levels in both occasions led
her to incorrectly recall what her perpetrator looked like. Her stress levels were not the
only factor that led Thompson to misidentify her perpetrator. Unfortunately, race does
play a role in situations like these. Cross-race effect is the belief that people from the
same race all look alike; this is seen mostly in Caucasians. Correct identifications are
40% more likely when the witness and the suspect are of the same race, and eyewitness
misidentification is 50% more likely when they are of different race; almost half of all
wrongful convictions are partially consequence of cross-race biased 14. So, Thompson
could have thought that Cotton and her actual Rapist, Poole, looked similar leading her to
believe that Cotton was her rapist. Similar does not mean the same however, and that is
what many eyewitnesses fail to take into account when identifying their suspect of a
different race.

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Misidentifications happen too often in the court system for it to be the only peace
of evidence to convict someone. Eyewitness misidentification is the greatest contributing
factor to wrongful convictions proven by DNA testing, playing a role in more than 70%
of convictions overturned through DNA testing nationwide 15. That is why the court
system should pass the notion that someone who is being tried cannot be convicted
solemnly on eyewitness testimony. It is almost impossible to completely rule out
eyewitness testimony as a whole, because of the fact that so many people believe it to be
credible, however jurors, prosecutors, defendants, and judges need to understand that
eyewitness testimony is not accurate. Flipping a coin and deciding if the individual in
question is guilty based on eyewitness testimony yields better result as if an eyewitness
takes the stand, because of the fact that 3/4 of the individuals who are wrongfully accused
is because of eyewitness misidentification. The notion of deeming eyewitness less
credible can be passed by writing to the Chief Justice of the United States, John G.
Roberts Jr., and explain to him the severity of wrongful convictions, and also point out
that eyewitnesses takes up 70% of all those wrongful convictions. If we cannot get
through to Chief Justice Supreme Court then we can convince the jury selection process
team to show a video on the malleability of human memory. The video will entail
statistics and explanations as to why one should not solemnly trust what the eyewitnesses
have to say because of the different factors that can change human memory. If they go
into a trial with the knowledge that eyewitness testimony is not as reliable as many
thought then we can decrease the number of wrongfully convicted by 70%, giving back

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the life to many individuals who would have spent decades in prison for a crime they did
not commit.
If these steps are taken then our court system will become that much greater. If the
jury is well informed, when an eyewitness comes up to the stand they will understand that
what they say cannot be 100% credible, which leads for an innocent person not to be
wrongfully accused.

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Endnotes
1. About Federal Courts uscourts. web. Apr. 2016.
<http://www.uscourts.gov/about-federal-courts>
2. Purpose and Responsibility for courts. Nacmnet. Web. Apr. 2016
<https://nacmnet.org/CCCG/cccg_1_corecompetency_purposes_cgsummary.html
>
3. Innocence Project innocence project. Web. Apr 2016.
<http://www.innocenceproject.org>
4. About the Registry. Law. Web. Apr 2016
<http://www.law.umich.edu/special/exoneration/Pages/about.aspx>
5. Death Penalty Information Center. Deathpenaltyinfo. Web. Apr. 2016. <
http://www.deathpenaltyinfo.org/innocence-and-death-penalty>
6. The staggering number of wrongful convictions in America. The Washington
Post. Web. Apr. 2016 <https://www.washingtonpost.com/opinions/the-cost-ofconvicting-the-innocent/2015/07/24/260fc3a2-1aae-11e5-93b75eddc056ad8a_story.html>
7. Ibid
8. Scalias perfect capital-punishment case falls apart. MSNBC. Web. Apr. 2016
<http://www.msnbc.com/rachel-maddow-show/scalias-perfect-capitalpunishment-case-falls-apart>
9. Innocence Project 2016
10. 9/11 national memory survey on the terrorist attacks. 9/11 memory. Web. Apr.
2016 <http://911memory.nyu.edu>
11. Ibid
12. Stress and glucocorticoids impair retrieval of long-term spatial memory.
Nature. Web. Apr 2016
<http://www.nature.com/nature/journal/v394/n6695/full/394787a0.html>
13. Criminology 201. Prof. Timothy Robicheaux. Lecture on eyewitness testimony,
Word document. Case Profile: Ronald Cotton. Mar 2016

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14. John P. Rutledge. Academic.udayton. Web. Apr 2016.
<http://academic.udayton.edu/race/03justice/justice03.htm>
15. Eyewitness Misidentification. Innocence Project. Web. Apr 2016
<http://www.innocenceproject.org/causes-wrongful-conviction/eyewitnessmisidentification>