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Doyle (2012) - Learning About Learning From Error

Doyle (2012) - Learning About Learning From Error

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Published by: PoliceFoundation on Nov 21, 2012
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Ideas inAmericanPolicing
Number 14May 2012
Ideas in American Policing 
presents commentary and insight rom leading crimi-nologists on issues o interest to scholars, practitioners, and policy makers. Thepapers published in this series are rom the Police Foundation lecture series o thesame name. Points o view in this document are those o the author and do notnecessarily represent the ocial position o the Police Foundation. The ull seriesis available online at http://www.policeoundation.org/docs/library.html.
© 2012 Police Foundation. All rights reserved.
 James M. Doyle
, a Boston attorney, is currently a Visiting Fellow at the National Institute o Justice, where he is examining theutility o the organizational-accident model or understanding andavoiding system-level errors in criminal justice. He has writtenextensively on the issue o eyewitness identication testimony in criminal cases, including a ourth edition o his treatise orlawyers,
Eyewitness Testimony: Civil and Criminal,
and thehistorical narrative,
True Witness: Cops, Courts, Science, and the Battle Against Misidentifcation.
Mr. Doyle is a member o thePolice Foundation’s Research Advisory Committee.
 Learning About  Learning From Error 
 James M. Doyle
here has been a lot o learning rom error goingon in American criminal justice since the publication in1996 o the U.S. Departmento Justice’s compilation o therst twenty-eight wrongulconvictions exposed by DNA.Does it indicate that criminal justice practitioners can adoptsome version o the quality reorm initiatives that havereshaped other high-risk eldssuch as aviation and medicine?Can the criminal justice systemembrace “a theory o work, which conceptualize[s] thecontinual improvement o quality as intrinsic to the work itsel” (Kenney 2008, 30)?Is it possible that the currentera, characterized by episodicpatches motivated by high-proletragedies, can be replaced by a new period dedicated to thesustained, routine practice o learning rom error? Criminal justice practitioners may be ready to give it a try. There are strongarguments that the policingcommunity can and should
—— 2 ——
lead the way toward a systems-oriented approach to knownerrors and near misses that beginsto move beyond a culture o blame and builds partnershipsacross all stakeholders in thecriminal justice system.The goal here is to outline apath or uture exploration, notto sell a xed set o prescriptions.The possibilities I have in mindare complex and dicult ones.Still, we do have a place to start.
The Exonerations andTheir Aftermath
 Attempts by U.S. SupremeCourt Justice Antonin Scalia,among others, to dismiss theexonerations listed in theNational Institute o Justice’s(NIJ)
Convicted by Juries,
Exonerated by Science: Case Studies in the Use o DNA Evidence to Establish Innocence  Ater Trial 
(Connors, Lundregan,Miller, and McEwen 1996)(known to practitioners as theGreen Book) as a catalogue o reakish mishaps have gained very little traction (
Kansas v. Marsh 
 2006). In part, this is because whenever these arguments areput orward the InnocenceProject exposes yet anotherhorriying wrongul conviction.But a more undamental reasonthat the infuence o the DNA exoneration cases continues togrow is that the criminal justicesystem’s rontline practitioners—the people who actually do the work on the streets and in thecourts—show very little interestin the comort that Scalia and thesystem’s other apologists havetried to oer them. The DNA exonerations involve the sort o bread-and-butter cases everyonehad handled and would handleagain, not arcane borderlandspecimens. All veteran criminalpractitioners had seen mistakes insimilar cases, and many veteranshad themselves been involved with one—or at least with anuncomortably close near miss.It came as no surprise to veterandetectives that eyewitnesses makemistakes; veteran detectives havebeen to a lot o lineups and watched witnesses identiy lots o known innocent “llers.”For the rontline troops, therareed utilitarian calculations o error rate that ascinated JusticeScalia missed the point. Becausepractitioners in all roles weredrowning in heavy caseloads,they could readily see that even very low rates o error stillresult in a very high absolutenumber o tragedies. Policepractitioners conronting theearly exonerations were uniquely sensitive to a key act: wheneverthe wrong guy was convicted, theright guy got away and claimedurther victims. O course, many people managed to shrug thiso as just the unavoidable costo doing business. But otherpractitioners—again, particularly police practitioners—saw avoiding errors as a matter o proessionalism, workmanship,and, ultimately, sel-respect,not as an issue o social policy (Bittner 1990). This early groupaccepted the Green Book as acall to action. For them, oneerror was too many. Dozens o  jurisdictions, independently o each other, mobilized eorts toaddress the problems identied inthe Green Book.The initial leadership camerom dierent players in dierentplaces. Former attorney generalJanet Reno, who decidedthat the Green Book wouldinclude commentary romthe ull spectrum o criminal justice system actors, providedan infuential template. Sheconvened technical workinggroups under the auspices o NIJ, which brought together diversestakeholders to hammer out andpublicize new criminal justice bestpractices. These groups addressedcrime scene investigations,death investigations, andeyewitness evidence, amongother topics. Peter Neueldand Barry Scheck, coounderso the Innocence Project, whohad been among Reno’s GreenBook commentators, called or alearning-rom-error initiative.In North Carolina, therst impetus came rom theconservative Republican chie  justice o the North CarolinaSupreme Court. In Boston andMinneapolis, it came rom electeddistrict attorneys; in Illinois,rom Northwestern University’sCenter on Wrongul Convictionsand the Governor’s Commissionon Capital Punishment; and inNew Jersey, rom a Republicanattorney general (Doyle 2005).More recently, the International
—— 3 ——
 Association o Chies o Policehas decided to convene a wrongul convictions summit.Because exonerations takeplace at (or many years past) theend o the normal criminal justiceprocess, many o the pioneeringlearning-rom-error initiativesthat responded to the DNA exonerations were dominatedby the lawyers who operate thesystem’s terminal phases. A groupo lawyers in these circumstancestends to luxuriate in examiningthe question, “How did thepolice screw 
one up?” andthen to share their answersgenerously with the media.Some in the policingcommunity have resisted thetemptation to duck thesegatherings. This was not trueo everyone, o course; plenty o people just hoped the wholething would blow over. In many places, nothing has changed.This is not yet a mass movement.But in all instances whereanything positive has grown outo the lessons o exonerationsit has been because the policehave at least acquiesced in theprocess, and usually becausethey have actively participated inor led it. Practitioners who donot share much else share thismuch: they all hate wrongulconvictions. Every time judges,cops, prosecutors, or InnocenceNetwork lawyers took stepsorward, they ound allies romall points o the criminal justicesystem, oten rom among theircourtroom adversaries (Saloom2010).Others have cataloguedthese eorts and consideredtheir merits. I want to look at them as precursors and ask  where these rst steps couldlead. There is potential here ora new approach to mistakes andnear misses that promises morethan the penitential baring o police throats to media abuseand lawyers’ criticisms. Tragicmistakes inspired medicine andaviation to blaze trails towardscultures o saety in ways thatilluminate what we might develop within the criminal justice system.I we can learn, as medicine haslearned, to treat errors as sentinelevents to be studied rather thanembarrassments to be buried, wecan all do a much better job. A conscious eort to see errors asan opportunity to nd abidingroot causes can drastically reduceuture risks.Do the police have themost to lose rom the rank evaluation o errors? It may bethat the police have the mostto gain. In the age o DNA,there is no point in pretendingthat mistakes do not happen;illusions o inallibility havebeen placed irretrievably out o reach. As things stand, the policetake the largest share o publicblame or wrongul convictionsanyway. In this environment, apublic commitment to the rank conrontation o known errorsand near misses can provide animportant bulwark or policelegitimacy. Besides, there areerrors other than exonerations— wrongul releases, cold casesthat stayed cold too long, hotspots that were not identied oreliminated, avoidable street stopsand risks o harmless citizens—that can yield valuable lessons.The approaches learned by medicine, aviation, and otherhigh-risk endeavors can knitpolicing and policing research
If we can learn, as medicine has learned, to treat errors as sentinel events to be studied rather than embarrassments to be buried, we can all do a much better job.

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