Introduction
"The case against "Toño" was built on the basis of a single eyewitness identification. Mistaken eyewitness identification is the single greatest cause of wrongful convictions in the United States, accounting for more than 75 percent of convictions overturned through DNA testing. Eyewitness testimony is notoriously unreliable and the procedures used by police officers during the identification process often contribute to the problem." Read more »
"There will always be innocents convicted and guilty people acquitted. Criminal justice systems seek to strike the best balance, keeping such error to a minimum. What is evident from Presumed Guilty is that the Mexican system, to the extent that it is accurately represented by this film, favors wrongful convictions, and is therefore off balance by most modern standards of liberty and justice." Read more »
"Wrongful convictions are tragedies that should prompt us to integrate psychological science into law and courtroom practice. Judges, jurors, attorneys and police officers could benefit from better understanding of human memory. At a minimum, it is important to appreciate fully that memory is malleable. Memories can be changed by things that we are told, as apparently happened with the witness against Antonio". Read more »
"Mexico is poised to change its criminal justice system from one that presumes guilt at trial to one that presumes innocence, effective 2016. If this reform is implemented and the new presumption of innocence is taken seriously, it should lead to important changes in police practices and trial procedures that could prevent miscarriages of justice like the one depicted in the documentary." Read more »
Jack Glaser
Jack Glaser, Associate Professor at Goldman School of Public Policy, University of California, Berkeley
Hernandez and Negrete's Presumed Guilty is one of those films that's "stranger than fiction." If I hadn't known it was a documentary, I would have found the circumstances literally incredible. A criminal defendant is tried on the basis of a single witness's account. That witness's testimony is glaringly circumspect. The defendant must appear in "court" (really a small office cubicle with a single judge, a reticent and hopelessly bureaucratic "prosecutor," and, initially, no defense attorney). Actually, he is not in the courtroom, but rather, on the other side of a wall, behind a barrier, wearing a prisoner's uniform. He must question his own witness, but only through the judge's superfluous reiteration of his questions to the witness, who stands mere feet away. Between appearances, he returns to his implausibly overcrowded, roach-infested cell, where he sleeps on the floor, under a set of tiny, densely packed bunk beds. It looks more like theatre of the absurd than the criminal justice system of a large, North American country with a rich history of art, literature and civilization.
One of the telling aspects of the film is the access that the filmmakers had to the defendant, Toño, both in prison and on trial. The U.S. criminal justice system has its flaws, but from our perspective it is unimaginable that authorities would not try to hide the abysmal conditions of the prison and the ethical bankruptcy of the trial. The access could only be explained by a widespread acceptance, and therefore perceived normalcy of the system. Showing to the world in vivid detail the deep flaws in the system, undermining the most basic ideals of justice, this film has the potential to blow the lid on the Mexican criminal justice system, and systems like it.
From a legal perspective, the question crying out for consideration is, can a criminal defendant get a fair trial when he is presented in court with the trappings (prison uniform; behind bars) of a criminal? The answer in the United States was clearly articulated in 1976 by the Supreme Court in Estelle v. Williams. The court recognized the potential for bias and ruled that criminal defendants have a right to appear at trial in civilian clothes.
From a psychology and law perspective, the answer is also a resounding "no!" Social psychological research has shown across countless domains that context matters. People, even jurors and judges, do not make unbiased, purely rational judgments about others based solely on cold, hard facts. Rather, we are influenced by peripheral information, like attractiveness, similarity, gender, race/ethnicity and physical surroundings.
One relevant study is especially poignant. Eberhardt, Davies, Purdie-Vaughns and Johnson (2006) collected a large set of photographs of real African-American capital defendants and had research subjects, who were unaware of the cases or their dispositions, rate them for how stereotypically Black they looked. When the victims were White (but not when they were Black), Black defendants who were rated as more stereotypically Black-looking were more likely to receive the death penalty, even when statistically controlling for race-neutral variables known to influence verdicts and sentencing. Similarly, Stewart (1985) found that defendants' whose physical appearances were rated more positively received less harsh sentences. A meta-analysis (statistically combining effects across multiple studies) of dozens of mock jury experiments found greater leniency for defendants who were physically attractive, high in socio-economic status, or female (Mazzella and Feingold, 1994). These studies show how aspects of physical appearance that should be irrelevant to verdicts and sentencing nevertheless have powerful effects on real, sometimes life or death, criminal justice outcomes. The likelihood is great that appearing for trial dressed as a prisoner and/or behind bars increases a defendant's chances of being convicted.
If you're not convinced, do a little honest thought experiment: Imagine yourself accused (wrongly, of course) of a serious crime, preparing for trial. Given the choice of appearing in court wearing a prison jumpsuit and encased in a cage, or sitting at a table in clothing of your choosing, which would you opt for?
No doubt, the presentation of defendants in prison garb and/or behind bars during trial is part and parcel of Mexico's system of presumed guilt. If the court views the accused as most likely guilty, then it will seem wholly appropriate to present them with all the trappings of guilt. But the combination of the biasing effects of presenting defendants as inmates with the actual high evidentiary burden that accompanies a presumption of guilt (and the correspondingly low evidentiary burden on the prosecution) makes for a troublingly great risk of wrongful conviction. There will always be innocents convicted and guilty people acquitted. Criminal justice systems seek to strike the best balance, keeping such error to a minimum. What is evident from Presumed Guilty is that the Mexican system, to the extent that it is accurately represented by this film, favors wrongful convictions, and is therefore off balance by most modern standards of liberty and justice.
Recommended reading:
Eberhardt, J.L., Davies, P.G., Purdie-Vaughns, V.J., & Johnson, S.L (2006). "Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes." Psychological Science, 17, 383-386.
Jack Glaser is a social psychologist who studies stereotyping, prejudice and discrimination, and their role in criminal justice. His research includes studies of nonconscious forms of racial bias and how they cause discriminatory behavior. He also studies racial profiling, racial bias in capital punishment and hate crime.
Elizabeth Loftus
Elizabeth F. Loftus, Professor of Psychology and Law, University of California, Irvine
Antonio "Toño" Zúñiga belongs to a club no sane person would want to join. He is one of the growing number of wrongfully convicted individuals, many of whom have spent even more time in prison than Toño. One subgroup is comprised of the nearly 300 people in the United States who have been exonerated by DNA evidence. When those cases have been analyzed, the major cause of wrongful conviction has been found to be faulty eyewitness memory, which plays a role in about 75 percent of such cases.
Dubious witness testimony played a role in Antonio's case, too. The key witness, Victor Daniel Reyes, initially accused three gang members of killing his cousin. There was no mention of Antonio. Only in a later interview did Reyes implicate Antonio. So it is natural to wonder what happened in between. What information was fed to Reyes that caused him to change his recollection? In my experience with hundreds of criminal cases, I have found that a common reason for someone's testimony to change is that the witness has been exposed to new information. What did the police tell Reyes? There is some evidence that they fed him Antonio's name, but what else? Also, Reyes had little trouble describing the gang members he initially accused, but he couldn't provide a description of Antonio. In a dramatic moment during Antonio's retrial, Reyes admits that he never saw the person who murdered his cousin. But even that is not enough to earn Antonio an acquittal.
An analysis of Antonio's dubious conviction would undoubtedly reveal causes beyond a mistaken (or lying) witness, such as an incompetent trial lawyer who wasn't even licensed to practice law; oppressive detectives who refused to answer questions at trial (often claiming, "I can't remember"); an inadequate court record that would be completely unhelpful if needed for an appeal; and a justice system that presumes guilt and is totally stacked against the defendant.
So much reform is needed that it is hard to know where to begin: Detectives who are properly trained and held accountable: A court record that is complete so that appellate courts have adequate information. After all, it is not the trial transcript, but the brilliant videotape of the retrial that appears, finally, to succeed in bringing justice for Antonio. However, reform is also needed with regard to law enforcement's handling of witness testimony.
The United States justice system has been struggling with these issues for many years. About 15 years ago, the Department of Justice released a report on the first 28 cases of DNA exonerations, revealing the large percentage of innocent people who had been convicted because of faulty eyewitness memory. The Justice Department then assembled a committee that came up with a set of guidelines for law enforcement. Eyewitness Evidence: A Guide for Law Enforcement offers a set of national guidelines for the collection and preservation of eyewitness evidence. The guide includes recommendations such as asking open-ended questions, refraining from interrupting an eyewitness' responses and avoiding leading questions. It also includes guidelines for constructing lineups, such as including only one true suspect per lineup and including the proper number of "fillers." The publication relies on psychological findings and explicitly acknowledges that these findings offer the legal system a valuable body of empirical knowledge.
Wrongful convictions are tragedies that should prompt us to integrate psychological science into law and courtroom practice. Judges, jurors, attorneys and police officers could benefit from better understanding of human memory. At a minimum, it is important to appreciate fully that memory is malleable. Memories can be changed by things that we are told, as apparently happened with the witness against Antonio. False memory reports can appear true, and without independent corroboration it is virtually impossible to tell whether a particular report is the product of true memory or the product of imagination, suggestion or some other process. Judges and juries sometimes think that they can tell the difference, but they are actually responding to the confidence, the detail and the emotion used to deliver a memory report. These characteristics may be associated with true memories, but, unfortunately, also with false ones. I once wrote that memory, like liberty, is a fragile thing. Antonio Zúñiga learned that the hard way. How many others are actually innocent, but still imprisoned? It's hard to get a handle on the true figure. But unless things change in Mexico, many more will join their ranks.
Elizabeth Loftus is a Distinguished Professor in the Department of Psychology and Social Behavior, the Department of Criminology, Law, and Society, and the Department of Cognitive Sciences, and a Fellow of The Center for the Neurobiology of Learning and Memory at the University of California, Irvine. She is also Professor of Law. She studies human memory. Her experiments reveal how memories can be changed by things that we are told. Facts, ideas, suggestions and other post-event information can modify our memories. The legal field, so reliant on memories, has been a significant application of the memory research. Loftus is also interested in psychology and law, more generally.
Steven Drizin
Steven A. Drizin, Clinical Law Professor, Northwestern University School of Law
In the United States, more than 250 wrongfully convicted inmates have been proven innocent as a result of DNA testing and hundreds more have been exonerated in non-DNA cases in the past two decades alone. The organized Innocence Movement in the United States traces its roots back to the early 1990s when DNA evidence first began to be used regularly as part of criminal investigations. Today, the Movement is organized through an Innocence Network of over 50 projects in the United States, Great Britain, Canada, Australia and New Zealand, most of which are housed in law schools or journalism schools. Many of these projects investigate both DNA and non-DNA cases.
The film Presumed Guilty is being aired at an especially exciting time for the Innocence Movement. On April 8-10, 2011, the Innocence Network will host its first ever International Innocence Conference in Cincinnati, Ohio and has invited scholars, lawyers, journalists, human rights activists and exonerees from around the world to the conference in the hopes of expanding the movement into a unified international human rights movement. The Innocence Network recognizes that we have much to teach to and much to learn from our colleagues around the world who are tackling the problem of wrongful convictions in their home countries. This essay will focus on some of the enduring lessons that arise from the wrongful conviction of Antonio "Toño" Zuniga, whose case is the subject of Presumed Guilty.
Both the United States and Mexico need to have more transparent criminal justice systems. Secrecy is the enemy of truth. Very few jurisdictions in the United States would have allowed the filmmakers the kind of access to court proceedings and prisons that were given to the filmmakers here. The United States should not be so fearful of televising court proceedings (it exists in only a minority of jurisdictions).
Members of the Mexican public have little idea of how the court system really works. There are no jury trials in Mexico, the public is kept out of the hearings, defense attorneys provide very little advocacy and the trials are often not even presided over by judges. Most judges simply review the paper record (mostly documents read into the record by the prosecution) and simply pronounce defendants guilty (there is a conviction rate of about 95%). Because of the cameras, however, Antonio received a trial that was more adversarial than the norm. His defense attorney was at the top of his game and the judge allowed greater leeway to the defense in its questioning of witnesses. And because the proceedings were recorded and sent to the appeals court, all of the weaknesses of the government's case were plain to see.
Mexico should implement a jury system and open its trials to the public so that the public can get a better understanding of how the justice system works. Judges should not be permitted to rule on a paper record and should be required to see and hear each witness as the witness gives his testimony and is cross-examined. Defendants in Mexico should also be allowed to sit at the table with trial counsel, to be dressed in regular and not prison clothing, to be unshackled, and should not have to watch the trials through the bars of a holding cell. Without such changes, the presumption of innocence in Mexico (which is a new reform already spurred by the film), will have little meaning.
The case against "Toño" was built on the basis of a single eyewitness identification. Mistaken eyewitness identification is the single greatest cause of wrongful convictions in the United States, accounting for more than 75 percent of convictions overturned through DNA testing. Eyewitness testimony is notoriously unreliable and the procedures used by police officers during the identification process often contribute to the problem. Police officers, often signal to a witness which suspect to identify, either deliberately or unintentionally. A simple change in tone of voice or a note of affirmation can skew an identification. Once a suspect becomes convinced he has identified the right suspect, his memory is forever altered. There are specific reforms concerning the procedures of lineups and photo arrays that the Innocence Network promotes to enhance the reliability of identifications but at a minimum, all identification procedures should be videotaped to allow for a judge and the lawyers to see if overly suggestive procedures were used.
Police interviews of witnesses and interrogations of suspects should also be electronically recorded to prevent false or coerced confessions and false witness statements. The lone identification witness in Toño's case may have been coerced into identifying Toño or threatened with prosecution for the same crime if he did not name Toño. The attitude of the detectives in the film suggests that they are used to being able to operate with impunity. Recording helps prevent police coercion and enables judges to tell whether the details in a suspect's confession came from the suspect or were fed to him by detectives. It also protects police officers from false allegations of abusing suspects and helps build the public's confidence in law enforcement. In the United States, seventeen states now require some recording of interrogations and hundreds more police agencies have voluntarily agreed to record interrogations. Mexico's police agencies should follow suit.
These days, the news we receive north of the border suggests that the Mexican criminal justice system is focused almost exclusively on law enforcement in trying to combat internal corruption of the police forces and the power and violence of the drug cartels. In such a context, concerns over due process and fairness for defendants and the presumption of innocence typically take a back seat to concerns over public safety. In this environment wrongful convictions can flourish. When leaving the film, I could not help wondering how many thousands of other innocents are languishing in Mexican prisons.
I also left thinking how important it will be for Mexico to join the global Innocence Movement, create its own innocence projects, and build a constituency for the kinds of reforms needed to prevent wrongful convictions. When it is ready to do so, the Innocence Network will welcome Mexico's first innocence project with open arms.
Steven A. Drizin is a Clinical Law Professor at Northwestern University School of Law in Chicago and the Legal Director of the Law School's Center on Wrongful Convictions.
Charles D. Weisselberg
Charles D. Weisselberg, Shannon C. Turner Professor of Law,
University of California, Berkeley, School of Law
Presumed Guilty is a terrific film -- gripping, shocking and quite illuminating.
The title of the documentary captures a basic difficulty with the criminal justice system in Mexico. The defendant is presumed to be guilty, and that presumption infects the way crimes are investigated and criminal charges are adjudicated. The filmmakers created a remarkable record of the second trial of José Antonio "Toño" Zúñiga Rodriguez, who was charged with the murder of Juan Reyes. It is impossible to know the extent to which Toño's case is representative of other investigations and prosecutions. The filmmakers were given extraordinary access to Toño and the courtroom, and trials are not typically recorded. But the problems that surfaced during Toño's retrial were those that one might expect in a system that does not provide a rigorous test of the evidence gathered by the police.
Mexico is poised to change its criminal justice system from one that presumes guilt at trial to one that presumes innocence, effective 2016. If this reform is implemented and the new presumption of innocence is taken seriously, it should lead to important changes in police practices and trial procedures that could prevent miscarriages of justice like the one depicted in the documentary. While one can think of other reforms that would improve the integrity of Mexico's criminal justice system, this single change has the potential to accomplish much.
First and foremost, if the prosecution is required to prove guilt beyond a reasonable doubt at a trial, the police will have to collect evidence and maintain the integrity of that evidence so that it can be assessed meaningfully at trial. There was no physical evidence linking Toño to the shooting. While the sole eyewitness, Victor Reyes, testified at the retrial, there was no real effort to obtain or preserve any evidence supporting his testimony. Victor was initially arrested and -- it appears -- pressured. He did not mention Toño until his third statement to the police. At the retrial, Victor was confronted quite forcefully by Toño, and there was a strong implication that officers had told Victor to implicate Toño. But officers did not record their interviews with Victor. Having a real burden of proof at trial could lead police officers to reform their interview and interrogation practices and record their interactions with defendants and witnesses.
While taping is not a panacea, it is one important tool used by police when the state has to shoulder the burden of proof at trial. Taping can ensure that a witness' recollections are promptly and accurately preserved. And as long as the entire interaction is recorded, taping is a powerful deterrent to coercive police practices. Many police officers and prosecutors in the United States promote taping because it can rebut false claims of police coercion and because a taped voluntary confession is quite strong evidence for the prosecution at trial. Recording is a more useful tool for preventing police misconduct than, for example, requiring Miranda warnings. The experience in the United States with the Miranda doctrine has been quite mixed. My own view is that Miranda is not effective in protecting suspects' ability to exercise their rights during a custodial interrogation, nor does it prevent police misconduct.
With a presumption of guilt and not innocence, officers will also have to document their investigations in greater detail. There was no documentation of the way Reyes identified Toño prior to trial, and there was no established process for identification, such as through a lineup. At the trial, several detectives testified that they could not remember investigating the case or aspects of their investigation. Of course, if there is a presumption of guilt, the officers' failure of recollection does not counter that presumption and result in a finding of not guilty. But if there is a presumption of innocence, the officers' failure to remember would tend to lead to an acquittal, since the prosecution would be unable to prove its case at trial. This shift in the presumption should also lead law enforcement officers to document their work carefully so that officers will be able to testify, in detail, about their investigations and refresh their memories by looking at their own reports.
While a shift to presuming innocence can help accomplish much, it is not a magic solution and it does not automatically mean that all prosecutions will be scrutinized carefully by judges. There are many components of a fair and just system in addition to the presumption of innocence.
Innocence is presumed in the United States. Yet a relatively small percentage of prosecutions proceed to trial. In large urban counties in the United States, about 25 percent of felony cases in the state criminal courts are dismissed early, prior to trial. Nearly two-thirds of all defendants plead guilty. Guilty pleas account for about 95 percent of convictions. In the federal district courts (where defendants charged with federal crimes are prosecuted), charges were dismissed against fewer than 9 percent of defendants in the most recent year. Of those defendants whose charges were not dismissed, 96 percent pleaded guilty, 3 percent were convicted at trial and fewer than 1 percent were acquitted after a trial. So even though the United States has a presumption of innocence, it nevertheless processes cases with guilty pleas, and only a small percentage of defendants actually require the government to prove guilt with a trial.
In our plea-based system, many factors may affect the quality of justice, including the quality of defense counsel (and funding for defense lawyers and investigators) and the training and administrative oversight of police and prosecutors, not to mention race, gender and income inequality. A change to a presumption of innocence is quite important, and it has the potential to be transformative. But reformers must not overlook other important aspects of the criminal justice system.
Resources
Homicide Units and Investigations
Simon, David. Homicide: A Year on the Killing Streets. New York: Houghton Mifflin, 1991.
Police Interrogation
Dixon, David. Interrogating Images: Audio-Visually Recorded Police Questioning of Suspects. Sydney: The Federation Press, 2007.
Leo, Richard A. Police Interrogation and American Justice. Cambridge: Harvard University Press, 2008).
Leo, Richard A. and George C. Thomas III. The Miranda Debate: Law, Justice and Policing. Boston: Northeastern University Press, 1998.
Weisselberg, Charles D. "Mourning Miranda" California Law Review 96, no. 6, 2008. (PDF)
Case Statistics
Cohen, Thomas H. and Tracey Kyckelhahn. "Felony Defendants in Large Urban Counties, 2006." U.S. Department of Justice/Bureau of Justice Statistics. (PDF)
U.S. District Courts. "Criminal Defendants Disposed of, by Type of Disposition and Major Offense, During the 12-Month Period Ending September 30, 2009." (PDF)
Standards for Criminal Justice Systems
American Bar Association. "About Criminal Justice Standards."
American Bar Association. "ABA Policies and Guidelines on Indigent Defense."
U.S. Department of Justice. "Department of Justice Compendium of Standards for Indigent Defense Systems."
Charles Weisselberg is the Shannon C. Turner Professor at U.C. Berkeley School of Law. He teaches criminal law, criminal procedure and related courses. Weisselberg also practiced criminal and post-conviction law for many years, principally through law school clinical programs.