Selected Publications for Keith A. Findley

URL icon Assessing Experiential Legal Education: A Response to Professor Yackee

In his recent article, my colleague Jason Yackee offers some interesting data on comparative rates of law-related job placement for graduates of the top 100 U.S. law schools. In the end, his analysis in part reaches the entirely unsurprising conclusion that higher-ranked law schools are more successful at placing their graduates in full-time law-related jobs than are lower-ranked schools. More interestingly, and less obviously, his data also suggest that schools that offer more experiential learning opportunities do not have any greater success in placing their students in full-time law-related jobs than do schools with fewer clinical offerings. From this, he queries whether clinical legal education is worth the expense and opportunity costs that it represents to law schools. In this response I focus on two important but largely overlooked questions that Yackee's data analysis (if correct) raises. First, I address the fundamental question Yackee's paper raises implicitly "what significance should attach to any disconnect that may exist between clinical opportunities and hiring rates? My answer is that hiring rates shouldn't affect curricular design in the way Yackee suggests. Simply put, the primary objective underlying the move toward clinical education, and the reason the American Bar Association (ABA) has increasingly demanded more attention to a skills-based curriculum and practice-ready graduates, is not to improve the hiring rates for law school graduates. Rather, the rationale for clinical education is much more about effective pedagogy for adult learners (both about substance and skills) and the need to create effective lawyers, not just as beginning attorneys, but as life-long learners and reflective practitioners. Second, again assuming that Yackee is correct about the hiring disconnect, the real question is why aren't employers influenced by clinical education when (a) they vocally demand practice-ready lawyers and (b) it is so pedagogically valuable? I suggest that the problem does not reflect a lack of interest by employers in experientially trained and practice-ready graduates (and hence in clinics), but rather inadequacy in the hiring metrics and heuristics that are currently available to employers, and indeed a desire by private law firms for a broader range of clinical offerings (not fewer clinics).



URL iconBook Review: Shaken Baby Syndrome on Trial

This is a short review of Deborah Tuerkheimer's book, "Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice" (Oxford University Press 2014).



URL iconInnocence Found: The New Revolution in American Criminal Justice

This short extract--the first four pages of Chapter 1 in an edited volume, Controversies in Innocence Cases in America--begins to describe the history and significance of the Innocence Movement in the American Criminal Justice System. The full chapter traces the origins of the innocence organizations that came together to form the Innocence Network and fostered the new Innocence Movement, the manner in which the Innocence Movement has created an impetus and model for criminal justice reform that shifts the focus from the Warren Court's due process revolution of the 1960s to a more substantive focus on reliability. In this framework, the chapter then considers some of the specific reforms that have emerged from the Innocence Movement's focus on substantive justice, and the challenges that lie ahead.



URL iconPsychological Perspectives: Cognition and Decision Making

In this chapter from the forthcoming edited volume entitled, EXAMINING WRONGFUL CONVICTIONS: STEPPING BACK, MOVING FORWARD, we offer an overview of what social and cognitive psychological research can tell us about how people make decisions about investigating, prosecuting, and adjudicating criminal cases. In particular, we examine the factors that can undermine the reliability of the judgments made at each of these stages of the criminal process, and how these phenomena might contribute to wrongful convictions. An impressive body of research exists demonstrating how the ways in which people process and use information can produce errors in the criminal justice system. This research has also taught us a lot about how to improve the accuracy of the system.



URL iconExpert Testimony on Interrogation and False Confessions

This article examines the need and bases for expert testimony on false confessions in criminal cases. Drawing on social science research, the article first briefly assesses the role of false confessions in wrongful convictions, including the nature of the false confession problem and the impact of false confessions in producing false convictions as well as in tainting other evidence and other aspects of police investigations. The article then turns to admissibility standards that govern expert testimony and their application to false confession expert testimony. In particular it sets forth the typical standards used for assessing admissibility of expert evidence and then shows that, when those standards are applied objectively, appropriately framed expert testimony on false confessions should be admissible in most cases. In particular, the article discusses the research on false confessions to highlight the types of facts that experts can provide to juries. The article then addresses the most prominent systemic response to coerced confessions"the Miranda warnings. The article examines psychological research to demonstrate that Miranda provides very little protection against coerced and false confessions, and, therefore, cannot provide justification for dispensing with expert testimony.



URL iconJudicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence

The growing number of wrongful convictions exposed over the past two-and-a-half decades, and the research that points to a few recurring types of flawed evidence in those cases, raise questions about the effectiveness of the rules of evidence and the constitutional admissibility standards that are designed to guard against unreliable evidence. Drawing on emerging empirical data, this Article concludes that the system can and should be adjusted to do a better job of guarding against undue reliance on flawed evidence. The Article first considers the role of reliability screening as a constitutional concern. The wrongful convictions data identify what might be called “suspect evidentiary categories”



URL iconBook Review: Understanding Failed Evidence

This is a short book review of David Harris's new book, Understanding Failed Evidence: Why Law Enforcement Resists Science. Harris's book neatly and comprehensively summarizes the social science research on wrongful convictions, focusing on three types of flawed evidence: eyewitness identifications, forensic sciences, and confessions. Where the book makes its most significant contributions is in its exploration of why the criminal justice system has largely not yet responded to and incorporated the social scientific research about these types of evidence (which Harris largely attributes to cognitive biases), and his prescriptions both for what to reform, and how to do it.



URL iconShaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting it Right

In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly with the anatomy and physiology of the infant brain, that there are many natural and accidental causes for these findings, and that the onset of symptoms does not reliably indicate timing. In the last issue of this journal, Dr. Sandeep Narang marshaled the arguments and evidence that he believes support the diagnostic specificity of the medical signs that are used to diagnose SBS/AHT. Dr. Narang does not dispute the alternative diagnoses but nonetheless argues that, in the absence of a proven alternative, the SBS/AHT hypothesis is sufficiently reliable to support criminal convictions. The cited studies do not, however, support this position since they assume the validity of the hypothesis without examining it and classify cases accordingly, often without considering alternative diagnoses. To address this problem, Dr. Narang argues that, in diagnosing SBS/AHT, we should rely on the judgment of child abuse pediatricians and other clinicians who endorse the hypothesis. Reliance on groups that endorse a particular hypothesis is, however, antithetical to evidence-based medicine and Daubert, which require an objective assessment of the scientific evidence. In the past decades, thousands of parents and caretakers have been accused "and many convicted" of abusing children based on a hypothesis that is not scientifically supported. While we must do everything in our power to protect children, we must refrain from invoking abuse as a default diagnosis for medical findings that are complex, poorly understood and have a wide range of causes, some doubtlessly yet unknown. To this end, we are calling for collaboration between the medical and legal communities for the sole purpose of "getting it right."



URL iconAdversarial Inquisitions: Rethinking the Search for the Truth

The growing number of exonerations of wrongly convicted individuals has fostered new interest in alternative mechanisms for factfinding in criminal cases, including some recent suggestions for special "innocence procedures." Such procedures would be optional, and available only in cases in which the defendant claims factual innocence. Discussion about alternative methods of investigating and adjudicating facts in criminal cases inevitably renews longstanding debates about the relative merits of inquisitorial versus adversarial system. This article analyzes and critiques some of the recent suggestions for "innocence procedures," concluding that most do both too much and too little to enhance adjudicative reliability. The article then draws on the strengths of both the adversary and inquisitorial systems to propose an alternative model that might promise enhanced reliability, and thus both better justice and public safety.



URL iconDefining Innocence

The DNA exonerations of the past 20 years have heightened awareness of the problem of wrongful convictions. As the number of exonerations expands, and increasingly includes exonerations in cases with no DNA evidence, just what counts as an "exoneration," and who can legitimately claim to be "innocent," becomes increasingly important and controversial. The definitions are important for research and policy reasons, for they define the pool of cases that can be studied to learn about the causes of error and to generate reform proposals. They are also important at the individual case level, both for defining who is entitled to relief from a conviction, and the extent to which such individuals are entitled to reclaim their good names in full. But innocence, it turns out, is a complex concept. The purity and simplicity of the story of the clear DNA exoneration continues to have power, but that story alone cannot sustain the Innocence Movement. It is too narrow. It fails to accommodate the vast majority of innocent people in our justice system. It fails to embrace innocence in its full complexity. This article explores what "exoneration" and "innocence" mean in the criminal justice system today. It concludes that there are many standards of innocence, dependent on whether innocence is being identified for research or litigation purposes, and depending on the jurisdiction and nature of the proceedings. But it argues that, in the end, for virtually all purposes, innocence must be understood under the objective rules that have long governed the criminal justice system. In the end, under those rules, the presumption of innocence fully defines innocence, absent proof of guilt established beyond a reasonable doubt in court. This article thus argues for a fuller embrace of the constitutional values embedded in the presumption of innocence.



URL iconInnocence Protection in the Appellate Process

It is often said that truth “accurate sorting of the guilty from the innocent” is the primary objective of criminal trials. Among the important safeguards in our criminal justice system intended to ensure that the innocent are protected from wrongful conviction is the system of appeals and postconviction remedies. Recent empirical evidence based on DNA exoneration cases reveals, however, that the appellate process does not do a good job of recognizing or protecting innocence. Examination of known innocents “those proved innocent by postconviction DNA testing” shows that they have rarely obtained relief on appeal. Moreover, those individuals subsequently proved innocent by postconviction DNA testing do no better on appeal and their innocence is no more regularly acknowledged than otherwise similarly situated individuals who have not been exonerated by DNA. This article examines the variety of reasons why the appellate system fails to effectively guard against wrongful conviction of the innocent, and considers possible reforms that might enhance the system's innocence-protecting functions.



URL iconTunnel Vision

This book chapter examines the psychological research that helps explain the phenomenon of “tunnel vision” in criminal cases that can lead to wrongful conviction of the innocent. It focuses, in particular, on the effects of such cognitive distortions as confirmation bias and hindsight bias, and situates them in the criminal justice system.



URL iconToward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process

In the criminal justice system we have become accustomed to thinking in terms of a conflict between society’s interest in convicting the guilty and the rights of criminal defendants. This conflict is perhaps best captured by Herbert Packer’s competing “Crime Control” and “Due Process” Models of criminal justice. In recent years, postconviction DNA testing and other forms of new evidence have exposed a surprisingly large number of wrongful convictions of factually innocent people. The resulting Innocence Movement has pushed for reforms to reduce the rate of factual error. Those efforts have caused some to ask if we can indeed convict fewer innocents without acquitting too many guilty people. That question is premised on a paradigm of competing goals, such as those posited by Packer’s two models. This article responds to that question in two ways. First, it suggests that the question, at least to a large degree, is the wrong question to ask under our constitutional system. Our constitutional system chooses protecting the innocent as a highest-order value, which preferences innocence protection over convicting wrongdoers. Second, confronting the question on its own terms, it suggests that the answer is yes, we can reduce the number of wrongful convictions without sacrificing too many convictions of the guilty. Indeed, the Innocence Movement shows that those goals are not inherently contradictory; rather, they are quite complementary. In this sense, the Innocence Movement alters our understanding of the criminal justice system by giving us a new paradigm



pdf icon Wrongful Convictions

Author: Keith Findley

This is an entry in the Encyclopedia of Psychology and Law that describes the problem of wrongful convictions in the United States, and the psychological factors that can lead to flawed investigations and prosecutions.



URL iconInnocents at Risk: Adversary Imbalance, Forensic Science, and the Search for Truth

Although the American criminal justice system purports to put most risk of error on the prosecution, in reality the system places considerable risk of error on criminal defendants, particularly innocent defendants. This imbalance begins at the investigation stages of criminal cases and continues at every stage of the criminal justice process. This imbalance is strengthened by cognitive biases and systemic pressures that create tunnel vision, by resource inequities, and by some rules of procedure and evidence. This article, which will be published in 38 Seton Hall Law Review, surveys the variety of ways in which the system creates such imbalance and poses risks to innocent defendants. It focuses particularly on the way we use and provide access to forensic sciences that can sometimes lead to mistaken convictions of the innocent. The article concludes with recommendations for new administrative mechanisms that go beyond traditional adversarial testing to improve the reliability of forensic science evidence.



URL iconThe Multiple Dimensions of Tunnel Vision in Criminal Cases

The numerous 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.



URL iconThe Pedagogy of Innocence: Reflections on the Role of Innocence Projects in Clinical Legal Education

The service and policy missions of innocence projects have received considerable scholarly attention. Relatively little, however, has been written about the pedagogical mission of innocence projects as law school clinical programs. This article examines the pedagogical challenges and opportunities presented by clinical programs that investigate and litigate large, complex innocence cases. First, the article analyzes what innocence projects can and should teach law students, including lessons about facts and investigation skills; about the need for thoroughness and skepticism, and what that means in practice; about essential values of the profession, and about the risk that the narrow focus on representing only the innocent might convey unintended messages about the value of legal representation to all criminal defendants; about ethics; about doctrine and a critical perspective of legal institutions; and, finally, about judgment. Second, the article considers how innocence projects might meet those educational objectives. Among other things, the article probes how innocence projects - and other similar large-case clinical programs - can manage the traditional tensions between the goal of nondirective student supervision, including the need to allow students to gain ownership of their cases, and the responsibility of ensuring quality representation to the clients in these complex cases, in which so much is at stake.



URL iconRediscovering the Lawyer School: Curriculum Reform in Wisconsin

From America's inception through the Civil War, legal education was entirely practice-oriented; it was based not on academic study at a university, but consisted almost exclusively of apprenticeship with a practicing lawyer. As the study of law moved from apprenticeships in law firms to university-based law schools, the method of study became more theoretical. After the 1870s, Langdell's case method became the dominant model of studying and teaching the law. Gradually, law schools became more abstract and theoretical, and less grounded in the practice of law. Increasingly, practicing lawyers and judges complained that law schools were not preparing law students who were ready for the practice of law



pdf icon Learning from Our Mistakes: A Criminal Justice Commission to Study Wrongful Commissions

Author: Findley, Keith A.

Perhaps the most lasting significance of the DNA exoneration cases is the lessons they can teach about flaws in the criminal justice system. In the United States, however, little systematic inquiry is made into what went wrong following a wrongful conviction. This Article examines several models for structuring the inquiry into the flaws in the criminal justice system exposed by the DNA exonerations.



doc icon New Laws Reflect the Power and Potential ifDNA

Author: Findley, Keith A.

This Article summarizes and analyzes new Wisconsin laws providing for preserving and utilizing DNA evidence in criminal cases.



doc icon Taping Would Help Prevent Wrongful Convictions

Author: Findley, Keith A.

This guest column in the Milwaukee Journal-Sentinel makes the argument for electronic recording of custodial interrogations.



pdf icon Lessons from the Innocent

Author: Findley, Keith a., and John A. Pray

Each wrongful conviction teaches lessons about flaws in the criminal justice system. Christopher Ochoa's case is one such example, offering lessons about how interrogation tactics can produce false confessions, and about how racial factors can skew the proper functioning of the criminal justice system.



pdf icon Jail Credit for Time Spent Outside the Walls

Author: Findley, Keith A.

This Article analyzes recent case law that establishes rules for governing when prisoners are entitled to presentence credit for time spent in various types of non-traditional confinement or custody.



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