Smoke but No Fire

Abstract

Nearly one-third of exonerations involve the wrongful conviction of an innocent person for a crime that never actually happened, such as when the police plant drugs on an innocent person, a scorned lover invents a false accusation, or an expert mislabels a suicide as a murder. Despite the frequency with which no-crime convictions take place, little scholarship has been devoted to the subject. This Article seeks to fill that gap in the literature by exploring no-crime wrongful convictions as a discrete and unique phenomenon within the wrongful convictions universe. This Article considers three main factors that contribute to no-crime wrongful convictions: official misconduct in the form of police lies, aggressive policing tactics, and prosecutorial malfeasance; the mislabeling of a non-criminal event as a crime; and outright fabrications by informants and non-governmental witnesses with motivations to lie. This Article then provides an empirical analysis of existing data from the National Registry of Exonerations about no-crime exonerations and compares data between no-crime exonerations and actual-crime exonerations in terms of contributing factors, crime types, and race and gender distinctions. In doing so, this Article demonstrates that no-crime wrongful convictions, where a person is convicted of a crime that did not occur, are materially different from actual-crime wrongful convictions, where the wrong person is convicted of a crime that did occur but was committed by another. Finally, this Article concludes with policy reform recommendations that specifically seek to reduce the incidence of no-crime wrongful convictions.