Publications

For many politicians (and elected judges), opposition to the death penalty is often an electoral death sentence. But recently, even ardent death penalty supporters have questioned the fairness of its application. In January 2000, Illinois Gov. George H. Ryan-a pro-death-penalty Republican-took to heart his state’s “shameful record of convicting innocent people and putting them on death row” and imposed a moratorium on executions. More recently, Justice Sandra Day O’Connor remarked, “[i]f statistics are any indication, the system may well be allowing some innocent defendants to be executed.” Understated, but accurate.

Before an innocent person can be executed, however, she must first be convicted. Eliminating the death penalty would solve the problem of executing innocent defendants, but it would do nothing to prevent them from being convicted in the first place and then spending years rotting away in jail.

As the great pontificator, Alan Dershowitz, likes to remind us, our legal system is premised on the notion that it is better for 10 guilty people to go free than for one innocent person to be wrongly convicted. Yet even the best legal system in the world (just like Florida presidential elections) has a margin of error. Regrettably, but inevitably, our legal system will, on occasion, allow an innocent person to go to jail.

What can appellate courts do to reduce the likelihood of innocent persons doing time? First, as the New York Court of Appeals recently held, they can allow criminal defendants to present expert testimony on the unreliability of eyewitness testimony, which juries give far too much weight. Second, they can stop treating sufficiency of the evidence claims in criminal cases like such claims in a personal injury action.

Fundamentally, the standard of review for insufficient evidence claims-in both civil and criminal cases-calls for appellate courts to bend over backwards to find ways to support challenged verdicts. In both cases, the standards are essentially identical: construe all of the evidence and draw all reasonable inferences in favor of sustaining the verdict, and decide whether a jury could reasonably have reached the verdict it did. The question is whether that extremely deferential standard is appropriate in criminal cases, where proof beyond a reasonable doubt is required, and a person’s liberty interest, not just money, is at stake.

In criminal cases, the right not to be convicted of a crime except upon sufficient proof is constitutional in dimension. Unlike civil cases, where the failure to preserve an insufficient evidence claim at trial means the claim is waived on appeal, sufficiency of the evidence claims in criminal cases are reviewable even if not preserved below. Given these facts, perhaps appellate courts should not work so hard to preserve guilty verdicts in weak cases.

I am not advocating a sea change in the way appellate courts review sufficiency of the evidence claims in criminal cases. Appellate courts should not become 13^th jurors and start making credibility determinations on a cold record. Nor should we fear the specter of appellate courts routinely reversing guilty verdicts. As then-Chief Justice Peters stated in her dissent in State v. Sivri, the instances in which appellate courts reverse guilty verdicts because of insufficient evidence “are and should be rare.” But when those rare occasions present themselves, appellate courts should not hesitate to act. If convictions of innocent persons largely result in those cases in which the evidence of guilt beyond a reasonable doubt is marginal, enhanced appellate scrutiny should decrease the risk of innocent people going to jail without significantly increasing the risk of guilty defendants going free.