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Wrongful Convictions
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Wrongful Convictions

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Hallmarks of a Wrongful Conviction

Hallmarks of a Wrongful Conviction

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  • 1. WRONGFUL CONVICTIONS International Centre for Criminal Law Reform and Criminal Justice Policy China/Canada Project Toronto, July 14, 2006 Daniel J. Brodsky
  • 2. Purpose of the Criminal Law
    • Provide retribution for victims of crime
    • To ‘protect society’ from ‘dangerous’ individuals
    • Under the rule of law
  • 3. WRONGFUL CONVICTIONS
    • Can We Blame Wrongful Convictions on Simple ‘Human Errors’ ?
  • 4. MISTAKES HAPPEN
    • Lawyers can be misinformed,
    • witnesses may honestly believe they have seen something they have not,
    • judges may unconsciously give bad instructions to the jury.
  • 5. System Errors Happen as Well
    • systemic factors which foster wrongful convictions are informed by politics, racism, sexism, professional interests, class prejudice, and social inequality.
  • 6. Public Pressure
    • Brutal high profile crimes are sensationalized by the media and cause panic in the community.
    • Fear and a sense of outrage places pressure on all actors in the criminal justice system to restore order; to apprehend and punish offenders both quickly and severely.
  • 7. Institutional Pressure
    • External demands are often coupled with internal institutional pressure to resolve the crime as effectively and efficiently as possible
  • 8. THE ADVERSARIAL SYSTEM
    • By definition there is both a winner and a loser in an adversarial criminal justice system:
    • The police build a case against the defendant that must be strong enough to secure a conviction or they will be the loser.
    • Prosecutors play a dual role – and winning is one.
    • Defence counsel are under-resourced or under committed.
  • 9. POLICE MISCONDUCT
    • Police, the gatekeepers to the criminal justice system, are subject to:
      • Bias;
      • Ends-Means reasoning;
      • Ambition;
      • Isolation.
    • All contribute to misconduct
  • 10. TUNNEL VISION
    • investigators focus on one suspect,
    • selecting and filtering evidence that will ‘build a case’ for conviction,
    • ignoring or suppressing evidence that points towards the innocence of the selected suspect.
  • 11. Confabulation
    • The need to confirm a predetermined belief in a suspect’s guilt filters through other areas of the prosecution process, adversely impacting:
  • 12. Perceived Truth
    • Witness interviews;
    • Eyewitness procedures;
    • Suspect interrogation;
    • Management of evidence;
    • Management of informants.
  • 13. Witness interviews
    • Pressure to conform to police theory
    • Pressure to implicate someone
    • Pressure to delete/forget contradictory evidence
  • 14. Eyewitness Identification
    • Eyewitness identification is often faulty and a major cause of wrongful convictions.
    • Observations made under stress or in less ideal conditions are often mistaken.
    • Cross-racial identifications are especially unreliable.
    • Lineups and photo displays are often biased.
  • 15. Eyewitness Identification
    • The Central Park Jogger rape case
    • Single biggest cause of wrongful convictions
  • 16. Interrogation and Covert Tactics
    • Admissions of guilt are not always prompted by internal knowledge of guilt but are often motivated by external influences.
    • Confessions are not always reliable.
    • “ I did it” may assume the damming form of a confession, but it may be the calculated lies of the determined job applicant or a desperate attempt to belong or even the repetition of facts drawn from other sources
  • 17. Reasons to Confess Falsely
    • duress,
    • coercion,
    • Promise or hope of advantage,
    • profit,
    • exhaustion,
    • fear,
    • intoxication,
    • diminished capacity,
    • ignorance of the law,
    • Protection of friends or family,
    • mental impairment.
  • 18. Management of Evidence
    • Failure to collect or preserve evidence
    • Mishandling of exhibits,
    • Poor or false forensic examination.
  • 19. The Expert Witness
    • The adversary system is probably the best tool we have in Canada for detecting overconfidence, self-deception, and dishonesty.
    • Ironically, it is itself responsible for one common defect, namely, the expert's temptation to identify overmuch with the cause of his 'side’.
    • expert witnesses can be "co-opted“.
  • 20. So – what is the problem with that?
    • Science is becoming more complex,
    • Witnesses remain as fallible as ever,
    • Lawyers lack the tools to evaluate and challenge,
    • Opinion (may) have a weight and authority that it may not deserve,
    • The language of medicine and the law are seldom the same,
    • Courts / Juries lack the skills to decide.
  • 21. Management of Informants.
    • Jailhouse informants have been the cause of innumerable wrongful convictions,
    • False testimony by witnesses with incentives is the second most prevalent factor in wrongful convictions in U.S. capital cases.
  • 22. Prosecutorial Misconduct
    • Prosecutorial behavior is not always regulated by conscience and commitment to serving justice by finding the truth through a fair trial.
    • The emergence of moral causes or the ‘ends justify the means’ mentality has contributed to the breakdown of prosecutorial constraint.
    • Given the prominent role that a prosecutor plays, overzealous and deceitful prosecutorial practices inevitably foster wrongful convictions.
  • 23. INADEQUATE DEFENSE COUNSEL
    • 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.
    • Ineffective or incompetent defense counsel have allowed offenders to be convicted of crimes who might otherwise have been proven innocent at trial.
    • The shrinking funding and access to resources for public defenders and court appointed attorneys is only exacerbating the problem.
  • 24. MANY VICTIMS IN A WRONGFUL CONVICTION
    • The Wrongfully Convicted (and their family and friends),
    • The Original Victim (and their family and friends),
    • The wider community.
  • 25. Appellate Remedies
      • Most effective when errors of law responsible.
      • Limited review of the facts.
      • Limited admissibility of new evidence.
  • 26. Ministerial Review by the Minister Of Justice:
      • Slow.
      • Perceived lack of independence.
      • Most provinces do not provide legal aid.
  • 27. AIDWYC
    • The Association in Defence of the Wrongly Convicted is a 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:
    • 1. To reduce the likelihood of future miscarriages of justice and,
    • 2. To review and, where warranted, attempt to overturn wrongful convictions.

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