The number of prosecutors who have established conviction integrity units (“CIUs”) or conviction review units (“CRUs”) in their offices has increased steadily over the past several years. While erroneous conviction cases are still predominantly handled by offices in larger cities such as Philadelphia, Chicago, or Detroit, many offices in smaller jurisdictions are building systems to handle wrongful conviction claims when they arise. Working with a CIU or CRU can provide huge benefits for convicted individuals; yet, working with a unit has significant risks, particularly for those who are working without an attorney in most cases.
In the best case, the CIU could agree the applicant’s wrongful conviction claim merits relief and support vacating the conviction rather than fighting against the petition in court. However, the CIU may unearth evidence that exposes the applicant, as well as their friends and family members, to prosecution for new offences, or even jeopardizes the applicant’s eligibility for parole or probation. Therefore, incarcerated individuals interested in working with CIUs must be aware of both the rewards and hazards associated with doing so before applying to work with one.
It is a specific section inside a state or county prosecutor’s office that is responsible for investigating claims of wrongful convictions brought against the office by people who have been convicted by that office. There is no requirement in any state or county that a prosecutor’s office have a CIU. Making the decision on whether to create a unit and how that unit would operate is entirely up to the elected or chief prosecutor’s discretion. No right to have a case reviewed by the unit exists, and any decision made by the District Attorney’s Office regarding an application is final and cannot be challenged.
What CIUs Are Involved In
Aside from investigating individual allegations of wrongful conviction, CIUs are also involved in a wide range of other activities. The majority of CIUs are involved in the development of policies for their offices as well as the delivery of training on the factors that contribute to wrongful convictions, such as faulty forensics, false confessions, and eyewitnesses who are led through a flawed identification procedure and end up making an incorrect identification. The investigation of erroneous convictions, on the other hand, is at the heart of the units’ activity.
The types of cases investigated by CIUs can differ from one office to the next. Only cases in which the applicant asserts they had no role in the underlying crime will be investigated by some (this is referred to as “actual” or “factual” innocence in the industry). Most will also look into cases in which the petitioner asserts that their conviction “lacks integrity” as a result of procedural or constitutional irregularities, which they say occurred.
These units are often staffed with at least one staff attorney and, in certain cases, an investigator, allowing them to undertake their own independent investigations. During the course of its inquiry, a CIU will frequently take a number of measures to perform a thorough re-examination of a case.
Depending on the circumstances, this could entail interviewing witnesses, locating witnesses who did not testify at trial, conducting forensic or scientific testing of pertinent material, analyzing police or other government files, and sharing those files with the applicant’s counsel. Given that these investigations take place outside of the normal course of business of the judicial system, prosecutors aren’t as concerned with statutory or procedural difficulties. Instead, the investigation’s goal is to ascertain whether or not the individual who was convicted is the same person who committed the crime in question.
Even if the evidence discovered or developed during the investigation proves the applicant’s innocence, or even if the evidence undermines his or her conviction to the point where the prosecutors no longer have faith in it, the CIU may be able to support the applicant’s application for post-conviction relief. The CIU can nevertheless assist with an applicant’s attorney to negotiate a lower sentence or even reduced charges even if the evidence does not show the applicant’s innocence.
In order for the CIU to work properly, cases must be reviewed as objectively as possible, without taking into account any legal arguments that may have been advanced and rejected in the past. Unlike a district attorney’s office, which may have taken the position that a certain conviction should stand, a CIU approaches the case from a different perspective, focusing on the facts rather than the law or procedural defenses. Those CIUs support a petition for vacatur (reversal of a conviction) in court on a regular basis—61 times in 2020 alone.
What Unrepresented People Should Be Aware Of
The vast majority of persons who write to CIUs are not represented by legal counsel. Despite the fact that certain CIUs will refuse to cooperate with clients who do not have an attorney representing them, the vast majority will. Indeed, for some units, petitions for help submitted by individuals acting on their own behalf account for well over 70% of the cases under assessment.
However, while working with a CIU can bring hope, there are hazards associated with doing so. People who contact a CIU should be familiar with how the unit operates and should be mindful of the dangers of mistakenly disclosing otherwise protected information.
First and foremost, attorneys who work in a CIU do not practice as defense attorneys in the traditional sense. They do not represent anyone who writes to them, and they will never represent anyone who writes to them. In their capacity as prosecutors, they look into allegations of erroneous convictions, and they do not provide legal advice to those who write to them about their cases. Nothing you say to a CIU lawyer, whether in person or in writing, is secret; there is no confidentiality protection for any of your conversations with a CIU.
All statements made to the CIU lawyers in writing or during an interview can be used against you because the CIU lawyers are prosecuting the case. It can be used against you in the case currently under review or even for other criminal action for which you were never punished, depending on the circumstances. Aside from that, in many places, anything that is contained in a prosecutor’s file is protected under the right to know or the freedom of information act.
That means that whatever information you provide to a CIU may end up in the hands of a reporter or anyone else who requests access to the file. Once you have provided information to a CIU, you will not be able to get it back.
As previously stated, if the CIU determines that your case merits further inquiry, they will launch an investigation. They will contact every person who is involved in the case or who may have knowledge about the crime as part of the investigation. This could involve members of your family or other loved ones.
The CIU Will Want to Talk with Your Lawyers
It is possible that the CIU will wish to speak with the attorneys who represented you at trial, on appeal, or in post-conviction processes in order to conduct a complete investigation. A study of your previous attorneys’ files, as well as any attorney or innocence organization now representing you or with whom you are collaborating, may be requested by the CIU as part of its investigation.
Keep in mind that your attorneys are bound by law to keep confidential any information they acquire about your case while representing you, including the contents of their files. You should be aware of this requirement.
They are not permitted to discuss their knowledge of your case or their files with the CIU unless you give them permission to do so. You have the option of allowing your attorneys to share this information with you if you so desire. If a CIU asks you to forgo your attorney-client privilege in order to have your case examined, you should proceed with extreme care.
Aside from that, any contact between you and your attorneys concerning the case—letters, discussions, messages, and so on—is deemed confidential communication that your attorney is not permitted to expose without your agreement to the CIU or other authorities.
You may not be aware of all of the information your former or current attorneys have in their files; they may have information linking you or individuals you know to a crime that you are unaware of or are unwilling to share with you. Your prior and any current attorneys may need to decide whether or whether they will discuss what they know about the case, their correspondence to and from you, as well as their case files, with the Criminal Investigations Unit (CIU). When making that decision, you may want to seek the advice of an attorney who is not affiliated with the CIU.
While the CIU may begin considering your application even if you choose not to disclose sensitive information or files with the CIU, they may need to communicate with your attorneys at some time throughout the review process.
The CIU may inform you that their investigation cannot be finished and that a determination on your claim cannot be made until they have spoken with your previous attorneys and/or reviewed their case files, among other things. At that time, you’ll have to decide whether or not you’re willing to waive your rights and allow your former attorneys permission to share information about you, including case files and interactions with you, with the Criminal Investigations Unit.
When convicted individuals write to the CIU of a prosecutor’s office, they frequently send lengthy letters in which they discuss their prosecution, conviction, and appeal. However, these narratives frequently contain information that would otherwise be protected by privilege: information about the legal strategy, things your lawyer said, and even the reasons why the person decided not to testify at trial are all topics that are protected by privilege and do not have to be revealed.
In the event that you contact a CIU or are filing paperwork on their behalf, be certain that any communication is limited only to the facts of the case or the events that occurred. Even if you don’t realize it, talking about anything linked to conversations with your attorney or decisions you made after consulting with them may result in you unwittingly waiving your legal rights in the future—even without your knowledge or consent!
The expansion of CIU units across the country has provided another potential option for wrongfully convicted individuals to obtain their freedom. However, the cases that CIUs take and the manner in which they work differ substantially from one another. In contrast to the appellate unit of district attorneys’ offices, CIU attorneys are still prosecutors, and dealing with them still involves significant risks for those who are detained, particularly those who do not have legal representation.
Prisoners who want to seek assistance from a CIU should be aware of how the CIU in their jurisdiction is run and how collaborating with them could potentially benefit or harm their case before contacting them for assistance.
Marissa Boyers Bluestine is an Assistant Director of the University of Pennsylvania Law School’s Quattrone Center for the Fair Administration of Justice. She has a bachelor’s degree in political science. She came to the Quattrone Center after spending a decade as the director of the Pennsylvania Innocence Project, where she was instrumental in the acquittal of 14 people who had been wrongfully convicted.
She came to the Quattrone Center after spending eight years as a staff attorney at the Innocence Project New Orleans, where she was instrumental in the release of six individuals who had been imprisoned for crimes they did not commit. Kia Hall Hayes has a bachelor’s degree in political science and a master’s degree in criminal justice.
See National Registry of Exonerations – 2020 Report