Cognitive Bias and Innocence Commissions

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(Michael O’Hear) I received word last week of the official demise of the Wisconsin Criminal Justice Study Commission, a law-reform organization of which I had been a member for two years. The Commission emerged from heightened state-wide concerns over wrongful convictions following the DNA-based exoneration of convicted rapist Steven Avery in 2003. The Commission, which was jointly sponsored by the state Department of Justice, the state bar, and the law schools at Marquette and the University of Wisconsin, included prosecutors, police officers, criminal defense lawyers, law professors (I was one of four), and community and crime victim representatives. We had a staff, a budget, and quarterly day-long meetings at which we had fascinating discussions of important issues ranging from the quality of the state crime lab to the underfunding of court-appointed counsel to police interrogation tactics to the use of jailhouse snitches. The vision behind the Commission was that consensus reform proposals emerging from a diverse body of experts and leading practitioners might actually get the state legislature’s attention.

In the end, though, none of the hoped-for consensus reform proposals ever emerged.  The group was disbanded when it became clear that the prosecutors were unwilling either to agree to any of the reforms pushed by the defense lawyers or to put forward their own proposals for improving the criminal justice system (besides increasing prosecutor pay).

It was disappointing to see the effort fall apart, and I have been giving some thought as to why it failed. 

In this state of uncertainty, prosecutors and defense lawyers – again, I think, acting in good faith all around – filled in the crucial knowledge gap in predictably self-serving ways.  Beginning with these self-serving premises, each side perceived the other to be suffering from an unrecognized cognitive bias.  Further deliberations were futile when each side was convinced the other just did not get it.

That, anyway, is my take on the Wisconsin experience.  I know that many other law professors have served on similar innocence commissions in other states, and I would be interested in hearing about their experiences.

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September 23, 2014 |

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