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By Root 1281 0

it turns up; it is the need for self-justification that prevents most prosecutors from being able to do that. Defense attorney Peter J. Neufeld says that in his experience, reinterpreting the evidence to justify the original verdict is extremely common among prosecutors and judges. During the trial, the prosecutor’s theory is that one person alone, the defendant, seized and raped the victim. If, after the defendant is convicted, DNA testing excludes him as the perpetrator, prosecutors miraculously come up with other theories. Our own favorite is what Neufeld calls the “unindicted co-ejaculator” theory: The convicted defendant held the woman down while a mysterious second man actually committed the rape. Or the victim was lying there helpless, and a male predator “comes along and sees an opportunity and takes it,” as one prosecutor claimed.39 Or the defendant wore a condom, and the victim had consensual sex with someone else shortly before she was raped. (When Roy Criner’s case was sent to the Texas Court of Criminal Appeals, Chief Judge Sharon Keller ruled that DNA “showing the sperm was not that of a man convicted of rape was not determinative because he might have worn a condom.”) If the victim protests that she has not had intercourse in the previous three days, prosecutors advance the theory—again, after the trial—that she is lying: She doesn’t want to admit that she had illicit sex because her husband or boyfriend will be angry.

Self-justifications like these create a double tragedy: They keep innocent people in prison and allow the guilty to remain free. The same DNA that exonerates an innocent person can be used to identify the guilty one, but this rarely happens.40 Of all the convictions the Innocence Project has succeeded in overturning so far, there is not a single instance in which the police later tried to find the actual perpetrator of the crime. The police and prosecutors just close the books on the case completely, as if to obliterate its silent accusation of the mistake they made.

Jumping to Convictions

If the system can’t function fairly, if the system can’t correct its own mistakes and admit that it makes mistakes and give people an opportunity to [correct] them, then the system is broken.

—appellate lawyer Michael Charlton, who represented Roy Criner

All citizens have a right to expect that our criminal-justice system will have procedures in place not only to convict the guilty, but also to protect the innocent, and when mistakes are made, to remedy them with alacrity. Legal scholars and social scientists have suggested various constitutional remedies and important piecemeal improvements to reduce the risk of false confessions, unreliable eyewitness testimony, police “testilying,” and so forth.41 But from our vantage point, the greatest impediment to admitting and correcting mistakes in the criminal-justice system is that most of its members reduce dissonance by denying that there is a problem. “Our system has to create this aura of close to perfection, of certainty that we don’t convict innocent people,” says former prosecutor Bennett Gershman.42 The benefit of this certainty to police officers, detectives, and prosecutors is that they do not have sleepless nights, worrying that they might have put an innocent person in prison. But a few sleepless nights are called for. Doubt is not the enemy of justice; overconfidence is.

Currently, the professional training of most police officers, detectives, judges, and attorneys includes almost no information about their own cognitive biases; how to correct for them, as much as possible; and how to manage the dissonance they will feel when their beliefs meet disconfirming evidence. On the contrary, much of what they learn about psychology comes from self-proclaimed experts with no training in psychological science and who, as we saw, do not teach them to be more accurate in their judgments, merely more confident that they are accurate: “An innocent person would never confess.” “I saw it with my own eyes; therefore I’m right.” “I can tell when