Borchard, Edwin M. Convicting the Innocent: Errors of Criminal Justice. New Haven: Yale
University Press, 1932.
Here is a Professor of Law at Yale University gathering cases, illustrations really, of mistakes
made by various courts in convicting people who were innocent. There are 65 stories told here of
innocent men and women who were convicted in courts. These 65 cases are selected on a basis
which is not stated, but the author does say they "...have been selected from a much larger
number..." (vii) We do not know what the larger number is, or represents, nor do we know why
these 65 cases were chosen. This cannot then be thought of as a sample of anything.
Most of the cases are American, 20th century. There are 29 murders; 23 cases of robbery,
swindles or larceny; 5 of counterfeiting; 4 of criminal assault; 4 obscene letter writers; 1 of
bribery; 1 prostitution. The author tries to make points about these cases in terms of mistaken
identity, errors in evidence, and other legal forms. To me, the major focus should be on the
poverty of those who were mistakenly convicted of crimes they did not commit. It is most clear
that poor people receive different treatment than do the rich. The next most notable thing about
the cases presented is that the accused's innocence was almost providentially revealed: the guilty
party confessed after years, the victim was found alive, or some other unlikely event. It no case
does it appear that legal protections helped prevent the innocent from being convicted.
Convicting the innocent is only one kind of error. There are other sorts of errors. If one considers
these cases the "false positives," the accused who is not guilty but found guilty, then one should
realize there are "false negatives," those who are never brought to trial who are in fact guilty.
There are crimes committed of which the police and other authorities are totally unaware. There
are crimes known to the police for which no arrests are made. There are criminals accused but
who, for one reason or another, are never brought to trial. Then there are different labels for the
same crime: larceny, burglary, theft, etc., for the same incident of stealing. The whole area of
statistics here is a gross mess.
Borchard allows these cases to be told poorly. This is the stuff of drama, the stuff of great
tragedy, and yet he tells them as bland recitations.