WRONGFUL CONVICTIONSWRONGFUL CONVICTIONS

International Centre for Criminal Law Reform and Criminal Justice Policy

China/Canada Project Toronto, July 14, 2006

Daniel J. Brodsky

Purpose of the Criminal LawPurpose of the Criminal Law

Provide retribution for victims of crime Provide retribution for victims of crime To ‘protect society’ To ‘protect society’ from ‘dangerous’ from ‘dangerous’

individualsindividuals Under the rule of lawUnder the rule of law

WRONGFUL CONVICTIONSWRONGFUL CONVICTIONS

Can We Blame Wrongful Convictions on Can We Blame Wrongful Convictions on Simple ‘Human Errors’ ?Simple ‘Human Errors’ ?

MISTAKES HAPPENMISTAKES HAPPEN

Lawyers can be misinformed, Lawyers can be misinformed, witnesses may honestly believe they have seen witnesses may honestly believe they have seen

something they have not, something they have not, judges may unconsciously give bad judges may unconsciously give bad

instructions to the jury.instructions to the jury.

System Errors Happen as WellSystem Errors Happen as Well

systemic factors which foster wrongful systemic factors which foster wrongful convictions are informed by politics, convictions are informed by politics, racism, sexism, professional interests, racism, sexism, professional interests, class prejudice, and social inequality.class prejudice, and social inequality.

Public PressurePublic Pressure

Brutal high profile crimes are sensationalized Brutal high profile crimes are sensationalized by the media and cause panic in the by the media and cause panic in the community. community.

Fear and a sense of outrage places pressure on Fear and a sense of outrage places pressure on all actors in the criminal justice system to all actors in the criminal justice system to restore order; to apprehend and punish restore order; to apprehend and punish offenders both quickly and severely. offenders both quickly and severely.

Institutional PressureInstitutional Pressure

External demands are often coupled with External demands are often coupled with internal institutional pressure to resolve the internal institutional pressure to resolve the crime as effectively and efficiently as possiblecrime as effectively and efficiently as possible

THE ADVERSARIAL SYSTEMTHE ADVERSARIAL SYSTEM

By definition there is both a winner and a loser in an By definition there is both a winner and a loser in an adversarial criminal justice system: adversarial criminal justice system:

The police build a case against the defendant that must The police build a case against the defendant that must be strong enough to secure a conviction or they will be be strong enough to secure a conviction or they will be the loser. the loser.

Prosecutors play a dual role – and winning is one.Prosecutors play a dual role – and winning is one. Defence counsel are under-resourced or under Defence counsel are under-resourced or under

committed.committed.

POLICE MISCONDUCTPOLICE MISCONDUCT

Police, the gatekeepers to the criminal justice Police, the gatekeepers to the criminal justice system, are subject to:system, are subject to: Bias;Bias; Ends-Means reasoning;Ends-Means reasoning; Ambition;Ambition; Isolation.Isolation.

All contribute to misconductAll contribute to misconduct

TUNNEL VISIONTUNNEL VISION

investigators focus on one suspect, investigators focus on one suspect, selecting and filtering evidence that will ‘build a selecting and filtering evidence that will ‘build a

case’ for conviction, case’ for conviction, ignoring or suppressing evidence that points ignoring or suppressing evidence that points

towards the innocence of the selected suspect. towards the innocence of the selected suspect.

ConfabulationConfabulation

The need to confirm a predetermined belief in a The need to confirm a predetermined belief in a suspect’s guilt filters through other areas of the suspect’s guilt filters through other areas of the prosecution process, adversely impacting:prosecution process, adversely impacting:

Perceived TruthPerceived Truth

Witness interviews; Witness interviews; Eyewitness procedures;Eyewitness procedures; Suspect interrogation;Suspect interrogation; Management of evidence; Management of evidence; Management of informants.Management of informants.

Witness interviewsWitness interviews

Pressure to conform to police theoryPressure to conform to police theory Pressure to implicate someonePressure to implicate someone Pressure to delete/forget contradictory evidencePressure to delete/forget contradictory evidence

Eyewitness IdentificationEyewitness Identification

Eyewitness identification is often faulty and a Eyewitness identification is often faulty and a major cause of wrongful convictions.major cause of wrongful convictions.

Observations made under stress or in less ideal Observations made under stress or in less ideal conditions are often mistaken.conditions are often mistaken.

Cross-racial identifications are especially Cross-racial identifications are especially unreliable. unreliable.

Lineups and photo displays are often biased.Lineups and photo displays are often biased.

Eyewitness IdentificationEyewitness Identification

The Central Park Jogger rape caseThe Central Park Jogger rape case Single biggest cause of wrongful convictionsSingle biggest cause of wrongful convictions

Interrogation and Covert TacticsInterrogation and Covert Tactics

Admissions of guilt are not always prompted by internal Admissions of guilt are not always prompted by internal knowledge of guilt but are often motivated by external knowledge of guilt but are often motivated by external influences. influences.

Confessions are not always reliable.Confessions are not always reliable. ““I did it” may assume the damming form of a confession, I did it” may assume the damming form of a confession,

but it may be the calculated lies of the determined job but it may be the calculated lies of the determined job applicant or a desperate attempt to belong or even the applicant or a desperate attempt to belong or even the repetition of facts drawn from other sourcesrepetition of facts drawn from other sources

Reasons to Confess FalselyReasons to Confess Falsely

duress, duress, coercion, coercion, Promise or hope of advantage,Promise or hope of advantage, profit,profit, exhaustion, exhaustion, fear,fear, intoxication, intoxication, diminished capacity, diminished capacity, ignorance of the law,ignorance of the law, Protection of friends or family,Protection of friends or family, mental impairment. mental impairment.

Management of EvidenceManagement of Evidence

Failure to collect or preserve evidenceFailure to collect or preserve evidence Mishandling of exhibits,Mishandling of exhibits, Poor or false forensic examination.Poor or false forensic examination.

The Expert WitnessThe Expert Witness

The adversary system is probably the best tool The adversary system is probably the best tool we have in Canada for detecting overconfidence, we have in Canada for detecting overconfidence, self-deception, and dishonesty.self-deception, and dishonesty.

Ironically, it is itself responsible for one common Ironically, it is itself responsible for one common defect, namely, the expert's temptation to defect, namely, the expert's temptation to identify overmuch with the cause of his 'side’.identify overmuch with the cause of his 'side’.

expert witnesses can be "co-opted“.expert witnesses can be "co-opted“.

So – what is the problem with that?So – what is the problem with that?

Science is becoming more complex,Science is becoming more complex, Witnesses remain as fallible as ever,Witnesses remain as fallible as ever, Lawyers lack the tools to evaluate and challenge,Lawyers lack the tools to evaluate and challenge, Opinion (may) have a weight and authority that it may Opinion (may) have a weight and authority that it may

not deserve,not deserve, The language of medicine and the law are seldom the The language of medicine and the law are seldom the

same,same, Courts / Juries lack the skills to decide.Courts / Juries lack the skills to decide.

Management of Informants.Management of Informants.

Jailhouse informants have been the cause of Jailhouse informants have been the cause of innumerable wrongful convictions,innumerable wrongful convictions,

False testimony by witnesses with incentives is False testimony by witnesses with incentives is the second most prevalent factor in wrongful the second most prevalent factor in wrongful convictions in U.S. capital cases.convictions in U.S. capital cases.

Prosecutorial MisconductProsecutorial Misconduct

Prosecutorial behavior is not always regulated by Prosecutorial behavior is not always regulated by conscience and commitment to serving justice by conscience and commitment to serving justice by finding the truth through a fair trial. finding the truth through a fair trial.

The emergence of moral causes or the ‘ends justify The emergence of moral causes or the ‘ends justify the means’ mentality has contributed to the the means’ mentality has contributed to the breakdown of prosecutorial constraint. breakdown of prosecutorial constraint.

Given the prominent role that a prosecutor plays, Given the prominent role that a prosecutor plays, overzealous and deceitful prosecutorial practices overzealous and deceitful prosecutorial practices

inevitably foster wrongful convictions.inevitably foster wrongful convictions.

INADEQUATE DEFENSE COUNSELINADEQUATE DEFENSE COUNSEL

Failure to investigate, failure to call witnesses, Failure to investigate, failure to call witnesses, inability to prepare for trial due to caseload or inability to prepare for trial due to caseload or incompetence, failure to file an appeal are only are incompetence, failure to file an appeal are only are few examples of poor lawyering. few examples of poor lawyering.

Ineffective or incompetent defense counsel have Ineffective or incompetent defense counsel have allowed offenders to be convicted of crimes who allowed offenders to be convicted of crimes who might otherwise have been proven innocent at trial. might otherwise have been proven innocent at trial.

The shrinking funding and access to resources for The shrinking funding and access to resources for public defenders and court appointed attorneys is public defenders and court appointed attorneys is only exacerbating the problem.only exacerbating the problem.

MANY VICTIMS IN A WRONGFUL MANY VICTIMS IN A WRONGFUL CONVICTIONCONVICTION

The Wrongfully Convicted (and their family and The Wrongfully Convicted (and their family and friends), friends),

The Original Victim (and their family and The Original Victim (and their family and friends),friends),

The wider community.The wider community.

Appellate RemediesAppellate Remedies

Most effective when errors of law responsible.Most effective when errors of law responsible. Limited review of the facts.Limited review of the facts. Limited admissibility of new evidence.Limited admissibility of new evidence.

Ministerial Review by Ministerial Review by the Minister Of Justice:the Minister Of Justice:

Slow.Slow. Perceived lack of independence.Perceived lack of independence. Most provinces do not provide legal aid.Most provinces do not provide legal aid.

AIDWYCAIDWYC

The Association in Defence of the Wrongly Convicted is The Association in Defence of the Wrongly Convicted is a public interest organization dedicated to preventing and a public interest organization dedicated to preventing and rectifying wrongful convictions. rectifying wrongful convictions. Founded in 1993 in response to the wrongful conviction Founded in 1993 in response to the wrongful conviction of Guy Paul Morin, the original members organized a of Guy Paul Morin, the original members organized a voluntary non-profit association with two broad voluntary non-profit association with two broad objectives: objectives:

1. To reduce the likelihood of future miscarriages 1. To reduce the likelihood of future miscarriages of justice and,of justice and,

2. To review and, where warranted, attempt to 2. To review and, where warranted, attempt to overturn wrongful convictions. overturn wrongful convictions.