The criminal justice system is a human system; unintentional errors happen. Recognizing that wrongful convictions have occurred and may occur in the future does not mean an office has intentionally made errors or is careless. Rather, it demonstrates to prosecutorial staff and the public that being a good prosecutor requires being open to reviewing convictions and reinvestigating cases when new information has come to light.

Wrongful convictions reduce community safety and confidence in the criminal justice system. When a wrongful conviction happens, not only is an innocent person prosecuted for a crime they did not commit, but a guilty person has escaped accountability. Because prosecutors have access to files and physical evidence, they are often in the best position to review and investigate claims efficiently. Indeed, prosecutors have a duty to ensure wrongful convictions are corrected and procedures and policies are implemented to reduce the risk of future wrongful convictions. (See ABA Model Rule of Professional Responsibility 3.8 (i)-(k).) So as the district’s chief public safety officer, prosecutors must have a mechanism in place to uncover wrongful convictions and create processes to prevent them from happening in the future.

Even if a case does not show the person convicted is innocent of the crime, Conviction Review Units identify cases where the conviction lacks integrity because of unaddressed constitutional violations or even systemic error or misconduct. Evidence that should have been disclosed, witnesses who did not testify truthfully, expert testimony which has been undermined by new scientific understandings all have led prosecutors to reverse convictions even where the individual convicted may have committed the crime. A Conviction Review Unit helps prosecutors identify error which they can then take steps to prevent from happening again.

Independence: The unit is structurally outside the office trial or appellate units, and the head of the unit reports directly to the elected District Attorney. This communicates to the public and attorneys within the office that conviction integrity is of the highest priority for the office. Members of the unit are trained on factors leading to wrongful convictions and avoiding confirmatory bias or tunnel vision in reviewing cases.

Transparency: The unit’s work itself is visible to the public and open to collaboration with defense counsel. The unit has written protocols available to the public and written so those who would apply for assistance can easily understand the criteria for case selection and the investigative process. The application process is clear and accessible to incarcerated individuals and their loved ones. Cases identified as actual innocence or wrongful convictions are reviewed objectively, without focusing on individual blame to identify the errors that led to that particular outcome. Investigations focus on the facts of a case and involve defense counsel to maximize openness and efficiency, and prosecutorial files are shared directly with counsel to help identify material which may have been withheld or not turned over at trial.

Flexibility: A CRU needs to be flexible in the types of cases they review as well as the types of relief considered in any given situation. Wrongful convictions happen whether the individual pleaded guilty or went to trial. Each case to be reviewed is different and involves a unique set of circumstances. Units should not categorically exclude particular types of cases from review and should be open to creative solutions for case corrections when appropriate.

A CRU must be staffed by attorneys and even laypeople who understand that wrongful convictions occur. For prosecutors, confirmation and hindsight bias are especially likely in the post-conviction context where respect for jury verdicts, concern for the interest of victims and the public in finality, scarce office resources, and even difficulty believing respected colleagues may have contributed to a wrongful conviction all weigh heavily against re-examining a final conviction, especially if the error is not immediately obvious.

Significantly, both experienced prosecutors and criminal defense litigators have a steep learning curve with respect to reviewing innocence cases. For this reason, best practices require that a CRU be staffed by people with various backgrounds, specialties, and professional experiences, including attorneys with specific innocence experience. A varied unit avoids the problem of “group think

The appellate process is not designed for independent case analysis or investigation. A separate CRU provides an independent review of cases that don’t seem, initially, to be appropriate for a new trial or where the issues raised do not lend themselves to a specific available appellate remedy. Appellate units may seek out (or be required to request) CRU input where an applicant raises actual innocence or wrongful conviction claims. Notably, the CRU does not act as a 13th juror, but respects the jury process by considering whether errors or evidence the jury did or did not hear could have interfered with the jury’s ability to reach a just verdict.