On the latest episode of the WI Law in Action podcast from the UW Law Library, Professor Keith A. Findley discusses three recent works:
- “The Science and Law Underlying Post-Conviction Challenges to Shaken Baby Syndrome Convictions: A Response to Professor Imwinkelried” 48 Seton Hall Law Review 1209 (2018).
- “Reducing Error in the Criminal Justice System” 48 Seton Hall Law Review 1265 (2018).
- Madison Police Department Policy & Procedure Ad Hoc Committee Final Report, October 2019, accepted by the Madison Common Council, January 2020. Professor Findley served as committee co-chair.
Much of Professor Findley’s work centers around error in the criminal justice system.
My work with the Innocence movement sort of opened my eyes to the fact that actually there’s a lot of error in the criminal justice system and there are a lot more innocent people in prison than we had thought, and that it’s not just the product of anomalies or individual human errors, but it’s actually the result of a lot of systemic features baked into the way we do criminal justice in this country.
Findley’s “Reducing Error in the Criminal Justice System” focuses on challenging some previously established methods that were designed to reduce harm.
There was inevitably and always a trade off between protecting the innocent and freeing too many guilty people. The public safety and protecting the innocent are at odds with one another in every instance. And instead I tried to make the point which I’ve made before in some other work as well, that really the ultimate goal here is accuracy, and if we focus on accuracy in our criminal investigations and adjudications, that actually is a win-win, there’s no trade off there at all. If we’re improving the diagnosticity of our processes presumably, and I think quite truthfully, we can better convict the guilty while at the same time better protecting the innocent.
“The Science and Law Underlying Post-Conviction Challenges to Shaken Baby Syndrome Conviction” focuses on the use of scientific evidence in abusive head trauma (aka shaken baby syndrome) cases, especially looking at shifted science that can change the consensus view on the effects of abusive head trauma and how they are challenged post-conviction.
So the science is shifting, and all of this is contentious. All of this is debated hotly in the medical community. But what this paper was about was responding to a claim that you have to be able to come in and prove. In order to overturn a conviction, you have to come in and prove that the original scientific hypothesis was wrong or to prove some alternative cause. And what this paper was talking about was actually that’s a misapplication, that’s a misunderstanding of what the standard is and indeed what the standard ought to be, because when a conviction rests so heavily on scientific evidence and that science shifts, even if that shift is just one to raise uncertainty where previously the jury was told there was no uncertainty, that might be enough to create the reasonable doubt that, that needs to be reexamined.
Findley also discusses the recent Madison Police Department Policy and Procedure Ad Hoc Committee Final Report which he notes was motivated by concerns about lack of trust in minority communities, in low-income communities, and about the use of force.
Sort of the centerpiece of our recommendations is the recommendation for the city to create an office of an independent monitor that answers to a civilian review board. And the reason this is the centerpiece of our recommendations is because the idea behind this is both theoretical and practical…The theoretical is that in a free and democratic society, when the citizens yields some of their autonomy, some of their independence to a police force, that we give extraordinary powers to lock us up, to stop us, to search us, to shoot us if need be, right? And in a free and democratic society, therefore the people should and must be the ones to control how they are policed…The more practical is, that if there’s a breakdown in trust, which there has been in some communities, the best way we thought to repair that would be to create a direct link between those communities and the police department in a way for their voices to be heard in the way the police department is run, and that’s why there’s civilian review board…The police department has already implemented a lot of those recommendations on its own initiative. But to ensure that the rest of them are implemented and to re ensure that this is not just a one off, but rather an ongoing process where we’re continuing to scan the police department and look for problems and make recommendations, we thought we needed someone who is responsible for assessing the police department’s progress towards meeting these goals, reshaping those goals, resetting them whatever, and that needs to be an independent authority, and that’s what we thought it needed to be an independent authority. So in other words, in order to effectuate all of the other recommendations we made, we thought it was critical to establish this office as an independent monitor with a civilian review board.