NOT INNOCENT UNTIL PROVEN GUILTY

Wrongful Convictions In The Criminal Justice System

MAJOR RESEARCH QUESTION

Can We Blame Wrongful Convictions on Simple ‘Human Errors’ or are they a result of Deeper Problems within the Canadian Criminal Justice

System?

THE ‘OFFICIAL’ EXPLANATION• When a wrongful

conviction is exposed police, judges and politicians who bare responsibility for the design and maintenance of the criminal justice system are quick to offer explanations for why the system failed

• Miscarriages of justice are often said to result from unavoidable and unintended human error.

• Lawyers can be misinformed, witnesses may honestly believe they have seen something they have not, or judges may unconsciously give bad instructions to the jury

• People do make mistakes and that must be recognized, however official explanations for wrongful convictions do not offer a complete or accurate picture of what is really going on

INTERNAL AND EXTERNAL PRESSURE ON THE POLICE

Brutal high profile crimes, which are usually violent, have a tendency to be sensationalized by the media and spark moral panic within the community.

This fear and sense of outrage among community members in turn places pressure on the criminal justice system to right wrongs by apprehending and punishing offenders both quickly and severely.

This pressure is amplified by the need for answers, retribution and eventual closure for the victim’s family and friends.

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

However, it is this pressure that often removes the key element of justice from the justice system, working against a proficient, comprehensive and successful police investigation

This inefficiency is then filtered throughout the prosecution process moving us further and further from serving justice and closer and closer to a wrongful conviction.

PRESSURE OF THE ADVERSARIAL SYSTEM • In an adversarial criminal

justice system there is both a winner and a loser. As the police have a major responsibility in building a case against the defendant it must be strong enough to secure a conviction or they will be the loser.

• When nobody wants to be a loser and one party has considerable power over the game, the odds are certainly not equal.

• Those who are ‘expected’ and ‘presumed’ to be on the side of the law will generally take first prize, yet regrettably in this case there is no runner up. I say regrettably because when it comes to a wrongful conviction, there is more than just one loser.

• As a community we all bare the consequences of putting the wrong person behind bars as only one of the harms is leaving the real criminal out on the street.

• Keeping this in mind gives all the more incentive to do things right the first time. However in order to do this motivation must come from both outside and within the criminal justice system.

• For now we will take a look within the system to see where potential problems lie in order to illuminate prospective methods of preventing wrongful convictions before they happen.

TUNNEL VISION• Due to both external and internal pressure on the

police and other actors involved in the administration of justice to find an offender and secure a conviction, investigators have a tendency to focus on one suspect, selecting and filtering evidence that will ‘build a case’ for conviction, while ignoring or suppressing evidence that points towards the offenders innocence.

• Motivation to confirm a predetermined belief in a suspect’s guilt filters through other areas of the prosecution process adversely impacting witness interviews, eyewitness procedures, suspect interrogation, management of evidence and informants.

• Tunnel vision and its consequences is a significant contributing mechanism in securing a wrongful conviction.

POLICE MISCONDUCT• Police are key players in a

wrongful conviction as they are the gatekeepers to the criminal justice system.

• Police fall prey to personal bias and often target racial minorities and those of low socio-economic status

• Police misconduct is unlikely to be detected or challenged if it is perpetrated against powerless members of society.

• Adding to this problem is the conception among police that they as a whole are doing societies ‘dirty work’ but receive little recognition for a job well done.

• This culminates in a ‘we against them’ mentality and a tendency for police to be secretive and suspicious of the public.

• Police then may feel justified in using illegal means including threats, brutality, coercion, perjury and interference with evidence in order to get a tough job done.

• Furthermore, because promotion in police ranks is determined in part by the number of high-profile arrests and cases completed, an officer will be tempted into wrongdoing to secure a conviction.

• All of this represents an organizational culture and structure in which winnable (and won) cases are a priority and become a self-maintaining process.

• Under these circumstances an innocent person is well on the way to a wrongful conviction.

 

THE POLICE NOTEBOOK• One of the key elements in

the ‘construction’ of a conviction is the police notebook

• Police are given thorough (albeit informal) training from their peers on how to compile their notes in a manner that will serve administrative requirements, while at the same time will ensure a conviction

• Notes are composed after a charge has been laid and discussions about the case have been conducted

• This practice, termed ‘boxing the notes’ makes certain that no officer contradicts another, ensuring there are no inconsistencies in the notes, in turn securing evidence for a conviction.

• Unfortunately, these ‘constructed’ notes become a contributing cause to a wrongful conviction

 FALSE CONFESSIONS• Admissions of guilt are not

always prompted by internal knowledge of guilt but are often motivated by external influences

• Interrogation of a suspect can lead to a false confession out of duress, coercion, exhaustion, fear, intoxication, diminished capacity, ignorance of the law, or mental impairment.

• Investigating officers may claim that the evidence against the suspect is overwhelming and use fear of violence (threatened or performed) and threats of extreme sentences if they don’t own up to what they’ve done to coerce innocent people into confessing to crimes that they did not commit.

• This can be taken so far as to make the suspect themselves believe they are guilty or that the perceived benefits of confessing outweigh the perceived costs of professing their innocence.

• The perceived benefits of a false confession range from permission to leave the interrogation room itself, protection of ones family members, a more lenient sentence, promised differential treatment by the police and prosecutors, or in extreme circumstances avoidance or cessation of physical harm or discomfort.

• A false confession to any crime is both counterintuitive and self-destructive yet continues to be a key contributing cause to wrongful convictions.

CASE EXAMPLES• DONALD MARSHALL• Victim was still alive at crime

scene and police didn’t question him regarding the assailant

• Scene of the crime was not searched

• Names of Witnesses were not recorded

• Before detectives interviewed the witnesses they had already concluded that Marshall was the killer (Tunnel Vision)

• Police used Coercion and Scare Tactics in order to obtain false testimony from young witnesses

• Witnesses were pressured into signing fabricated accounts of the murder and were threatened with jail time if they didn’t cooperate

• GUY PAUL MORIN• The search of the crime

scene was careless• The body was mishandled

and important evidence was overlooked

• Without concrete evidence the police decided was Morin was the killer because he was a ‘weird’ guy

• Tunnel vision followed and they began to ‘construct’ the case

• Important evidence was altered and fabricated

• With regards to police note-taking the sergeant made 2 copies of his notes—an original and revised copy to fit the theory the police had ‘constructed’

PLEA/CHARGE BARGAINING• Plea bargains have corrupted

the justice system by creating fictional crimes in the place of real ones.

• Having people admit to what did not happen to avoid charges for what did happen creates a legal culture which elevates fiction over truth.

• False confession and self-incrimination replace the criminal trial.

• Plea-bargaining is a major cause of wrongful conviction as they undermine police investigative work, because when few cases make it to trial, police learn that their evidence is seldom tested in the courtroom.

• Carelessness creeps in, while sloppy investigations reduce the likelihood of apprehending the real guilty party.

• Prosecutors have found that they can coerce a plea and elevate their conviction rate by raising the number and seriousness of the charges they throw at the accused.

• Defense council also plays a coercive role when advising defendants that conviction at trial to a charge can carry more punishment than a plea to a lesser charge.

• The sentencing differential alone is enough to make plea-bargaining coercive

• While conservatives may complain that plea-bargaining permits criminals to get off with a slap on the wrist, the real anxiety should stem from the potential that the person going to jail is innocent, the real perpetrator is prowling the streets and the administration of justice has been put into disrepute.

BAIL VS. DETENTION

• The decision to grant bail is a significant factor in processing a criminal case

• Defendants who are denied bail lack access to resources necessary to prepare for their defense

• People who are marginalized in society are less likely to be granted bail

• This has negative consequences at the trial stage, where the jury and the judge may hold bias against an accused brought out in handcuffs, in contrast to the sharp suited, well represented white collar defendant

MISTAKEN EYEWITNESS IDENTIFICATION • Modern technology is proving

what scientists, psychologists and legal scholars have noted for years: eyewitness identification is often faulty and a major cause of wrongful convictions.

• Identifications are even more problematic when they are based on observations made under stress or in less ideal conditions (i.e. in darkness or from a distance).

• Cross-racial identifications have been shown to be especially unreliable. Studies indicate that people who have had little or no contact with those of another race are significantly less capable of distinguishing subtleties in facial characteristics of those of a different race during a line-up procedure.

• Further complicating matters is the administration of identification procedures by an investigating officer who ‘knows’ who the suspect is in the line-up.

• This already subjective procedure is then in danger of being tainted by verbal or visual cues given to identifying witnesses, whether consciously or by accident

PROCECUTORIAL MISCONDUCT• Ideally prosecutorial behavior

is regulated by conscience and commitment to serving justice by finding the truth through a fair trial.

• There was once a time when a prosecutor who admitted perjured testimony or withheld exculpatory evidence in order to win a case was regarded as a shameful embarrassment to the law.

• However crowded court rooms, bureaucracy, budgetary pressures and careerism have contributed to elevating ambition above justice.

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

• This has resulted in numerous instances of prosecutorial misconduct ranging from fabricating, tampering or suppressing evidence, making false statements to the jury, participating in cover-ups, distorting facts, using improper scare tactics during closing arguments, manipulating and employing unreliable and untruthful witnesses to a new practice known as ‘jumping on the bus’, which has taken the prosecutorial ethic to rock bottom depth.

• This is where prosecutors (or other agents of the justice system) feed information about unsolved cases to an inmate, have them memorize the case, so when they come forward with information in exchange for a reduced sentence it appears that they have inside knowledge of the case and are merely trying to assist in the investigation.

• Given the prominent role that a prosecutor plays in the administration of justice, overzealous and deceitful prosecutorial practices inevitably foster wrongful convictions.

INADEQUATE DEFENSE COUNSEL • Ineffective or incompetent defense counsel has allowed

offenders to be convicted of crimes who might otherwise have been proven innocent at trial.

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

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

• Inability to secure adequate defense counsel is a problem that disproportionately affects those from low socio-economic status backgrounds.

• This introduces an element of inequality into the criminal justice system where the rich get off and the poor get prison.

JAIL HOUSE INFORMANTS

• The use of jailhouse informants, especially in return for deals, special treatment, or the dropping of charges, has proven to be a misleading form of evidence, as has testimony that has only appeared after rewards were offered.

• Often, the testimony of these snitches and informants has been the key in sending an innocent man or woman to prison for a crime he or she did not commit.

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

• In Canada, after the exoneration of Guy Paul Morin, a commission was established to review the causes of his conviction and propose remedies for similar situations.

CASE EXAMPLE

• GUY PAUL MORIN• Robert May and Mr.X were prison inmates

who had been involved in fights and were admitted chronic liars.

• Robert said he would testify Morin had admitted to the murder and Mr.X would confirm this

• This was done in return for a lesser sentence• To make matters worse, during the trial the

judge suggested that the jurors should consider the jail house informants testimony as truthful

JUNK SCIENCE• As finders of fact in the trial,

the ultimate determination of truth is up to the jury who are often given blinders to put on in the form of junk science.

• This includes experts testifying about tests that were never conducted, suppression of exculpatory results of testing, falsified results, falsified credentials, misinterpretation of test results, and statistical exaggeration.

• We must ask ourselves, are labs and expert testimony tools of the prosecution, or of justice?

• Certainly, crime labs are thought to be an impartial, scientific means of finding the truth. But the reality is that most exist in a prosecutorial milieu, as branches of the department of justice or the police.

• Closely tying the forensic scientist to the prosecutorial apparatus may increase the likelihood of junk or scandalous science.

• Scientists may feel that

in order to get promoted they need to provide the evidence that makes a conviction, morphing into what has been termed ‘cops in lab coats’.

• Junk science has played a role in numerous wrongful convictions.

JUDICIAL BIAS • Judges are at the pinnacle of

the judicial system and their job is to oversee the trial process and determine the sentence for those convicted of the crime.

• It is the responsibility of the judge to guarantee that all parties involved in a trial act according to the proscribed rules, assuring a fair and impartial hearing for the accused.

• However, they also have the very important task of maintaining public confidence in the judicial system, emphasizing its legitimacy.

• There have been numerous occasions when the judiciary has acted to preserve the reputations of police officers, prosecutors, expert witnesses or others acting on behalf of the crown when their reputation or the system is called into question .

• The possibility therefore exists that a judge may unintentionally or maliciously conduct a trial or instruct the jury in a way that is prejudicial to the accused, if he or she perceives that to do otherwise would somehow jeopardize the integrity of the judicial system.

• Unfortunately this protective mechanism has potential to backfire and foster a wrongful conviction.

JURY BIAS• When we are called to do

our civil duty as members of the jury we are expected to leave all of our biases at the courtroom door.

• However, this is next to impossible. Jurors bring with them into the courtroom prejudices based on sex, class, age, race, dress, demeanor and language.

• These potential biases have a tendency to be given weight at the decision table, sometimes at the expense of the facts.

• In addition to personal bias, a juror’s unfamiliarity with the justice system leaves them in a vulnerable position to place trust in the system.

• History has shown that juries are inclined to accept the testimonies of witnesses as fact because they find it difficult to believe that people lie under oath.

• They are also very reluctant to accept defense counsels suggestion of police or prosecutorial misconduct.

WHO ARE THE REAL VICTIMS IN A WRONGFUL CONVICTION?

• The Wrongfully Convicted (and their family and friends): The time, stress, energy and money that they have put into fighting the system. The time lost and grief endured while behind bars in unpleasant conditions unable to enjoy the fruits of life. The stigma attached to their name, which will likely remain for a long period of time after they have been exonerated.

• Canadian Taxpayers: Retrials and appeals have cost taxpayers millions of dollars. Taxpayers also wind up responsible for paying compensation towards the victims of these miscarriages of justice

• The Original Victims Family and Friends: Old wounds will be ripped back open. Any sense of closure will be lost. They are forced to deal with the probability that their loved ones pain will never be avenged.

• The Larger Community: Who are faced with the reality that a predator still potentially lurks among them and the corresponding feeling of vulnerability. This also creates lack of faith in the criminal justice system, perhaps decreasing willingness to abide by the law. We all suffer when this happens.

WORKING TOWARDS SOLUTIONS

The Association In Defense of the Wrongly Convicted (AIDWYC) is a Canadian public interest organization dedicated to preventing and rectifying wrongful convictions. Founded in 1993 in response to the wrongful conviction of Guy Paul Morin, the original members organized a voluntary non-profit association with two broad objectives: first, to reduce the likelihood of future miscarriages of justice and, second, to review and, where warranted, attempt to overturn wrongful convictions.