In the final part of our Hallmarks of Innocence series, WGBH's Morning Edition Host Joe Mathieu talks with Northeastern University law professor and WGBH News legal analyst Daniel Medwed about the larger systemic changes that could help reduce wrongful convictions. The transcript below has been edited for clarity.
Joe Mathieu: Now that we've had this conversation for the better part of summer, to what extent is our overall philosophy of criminal justice at fault?
Daniel Medwed: It's a great time to take a bird's eye view of this. I do think on some level our overall philosophy [and] our somewhat blind adherence to the adversary system bears part of the blame. The adversary system is predicated on the idea that the truth will emerge from this vigorous contest between zealous advocates — the prosecution and the defense. But we know from this series that a lot of mistakes occur because of that pressure, because of the contest mentality. Prosecutors might cut corners because they want to get convictions. Defense lawyers might plead out cases early because they have so many cases on their docket, they'll consider a good plea a win. So I think it's a good time to maybe critically re-examine whether the adversary system is, indeed, the best system for us.
Mathieu: Is it time to get rid of [the adversary system]?
Medwed: Oh, I don't know about that. Let's see what some other countries do. So in Western Europe, places like France and Germany, they've shunned the adversary system. Instead, they have an inquisitorial or civil law system. Basically, prosecutors are civil servants. They present the evidence in a very neutral, detached and objective way. They don't get ahead by securing convictions, they aren't elected. And judges are very interventionist. They play an active role in the case, ask [a lot] of questions and really control the process. The idea is, it's an inquisition. It's an inquiry designed to get at the truth, not a battle through adversaries.
Mathieu: So let's say we're stuck with the adversary system. What major changes could we implement to improve its accuracy as it exists now?
Medwed: I think we are probably stuck with the adversary system, I think that's a good point, because we've had it for so long. We inherited it from England [and] it's so ingrained in our culture. Also, I think the inquisitorial system, while it works in France and Germany, might not translate as well to a country like ours that is so diverse racially and [ethnically] because it gives so much power to elite judges. We might not want that. So if we're gonna keep the adversary system, I think there are a couple of things that we should do.
First, money. We've talked a lot about money. Let's infuse more money into our criminal justice system. Give prosecutors more money to do their jobs. Give defense lawyers more money do their jobs. Pay for criminal justice courts so that they aren't overwhelmed with all of these cases. Second, let's try to thwart unconscious biases, things like tunnel vision and confirmation bias that we've also talked about. All the research shows that if you're forced to articulate and justify your decisions to people before you make the decisions, you end up making better decisions. So let's set up review processes beforehand to nip some of these problems in the bud. And lastly, political accountability. Let's pay attention to prosecutors [and] the criminal justice system, and let's act at the ballot box to change things.
Mathieu: I know you were once an idealistic defense lawyer working in Manhattan. After all this, [are you] optimistic about the future when it comes to criminal justice and wrongful convictions?
Medwed: You know, I am surprisingly optimistic and here's why. People are paying attention to criminal justice over the last five years in a way that I've never seen. I have never seen this. Rachel Rollins, the recently elected D.A. for Suffolk County, people know who she is. People are reading about her policies [and] are engaged. I bet many of those same folks couldn't name her predecessor. Also, U.S. Attorney Andrew Lelling. People know who he is. They know what cases he's charging, whether it's the admissions scandal case or what have you. People are focused on criminal justice, and I think that means that ultimately prosecutors, judges [and] even defense lawyers are going to be more accountable to the electorate. And that's going to lead to a more accurate system.
Mathieu: Sounds like a little sunlight goes a long way.
Medwed: Well, that's right. Sunlight is the greatest disinfectant.