WRONGFUL CONVICTIONS International Centre for Criminal Law Reform and Criminal Justice Policy China/Canada Project   Toron...
Purpose of the Criminal Law <ul><li>Provide retribution for victims of crime  </li></ul><ul><li>To ‘protect society’  from...
WRONGFUL CONVICTIONS <ul><li>Can We Blame Wrongful Convictions on Simple ‘Human Errors’ ? </li></ul>
MISTAKES HAPPEN <ul><li>Lawyers can be misinformed,  </li></ul><ul><li>witnesses may honestly believe they have seen somet...
System Errors Happen as Well <ul><li>systemic factors which foster wrongful convictions are informed by politics, racism, ...
Public Pressure <ul><li>Brutal high profile crimes are sensationalized by the media and cause  panic in the community.  </...
Institutional Pressure <ul><li>External demands are often coupled with internal institutional pressure to resolve the crim...
THE ADVERSARIAL SYSTEM <ul><li>By definition there is both a winner and a loser in an adversarial criminal justice system:...
POLICE MISCONDUCT <ul><li>Police, the gatekeepers to the criminal justice system, are subject to: </li></ul><ul><ul><li>Bi...
TUNNEL VISION <ul><li>investigators focus on one suspect,  </li></ul><ul><li>selecting and filtering evidence that will ‘b...
Confabulation <ul><li>The need to confirm a predetermined belief in a suspect’s guilt filters through other areas of the p...
Perceived Truth <ul><li>Witness interviews;  </li></ul><ul><li>Eyewitness procedures; </li></ul><ul><li>Suspect interrogat...
Witness interviews <ul><li>Pressure to conform to police theory </li></ul><ul><li>Pressure to implicate someone </li></ul>...
Eyewitness Identification <ul><li>Eyewitness identification is often faulty and a major cause of wrongful convictions. </l...
Eyewitness Identification <ul><li>The Central Park Jogger rape case </li></ul><ul><li>Single biggest cause of wrongful con...
Interrogation and Covert Tactics <ul><li>Admissions of guilt are not always prompted by internal knowledge of guilt but ar...
Reasons to Confess Falsely <ul><li>duress,  </li></ul><ul><li>coercion,  </li></ul><ul><li>Promise or hope of advantage, <...
Management of Evidence <ul><li>Failure to collect or preserve evidence </li></ul><ul><li>Mishandling of exhibits, </li></u...
The Expert Witness <ul><li>The adversary system is probably the best tool we have in Canada for detecting overconfidence, ...
So – what is the problem with that? <ul><li>Science is becoming more complex, </li></ul><ul><li>Witnesses remain as fallib...
Management of Informants. <ul><li>Jailhouse informants have been the cause of innumerable wrongful convictions, </li></ul>...
Prosecutorial Misconduct <ul><li>Prosecutorial behavior is not always regulated by conscience and commitment to serving ju...
INADEQUATE DEFENSE COUNSEL   <ul><li>Failure to investigate, failure to call witnesses, inability to prepare for trial due...
MANY VICTIMS IN A WRONGFUL CONVICTION   <ul><li>The Wrongfully Convicted (and their family and friends),  </li></ul><ul><l...
Appellate Remedies <ul><ul><li>Most effective when errors of law responsible. </li></ul></ul><ul><ul><li>Limited review of...
Ministerial Review by  the Minister Of Justice: <ul><ul><li>Slow. </li></ul></ul><ul><ul><li>Perceived lack of  independen...
AIDWYC <ul><li>The Association in Defence of the Wrongly Convicted is a public interest organization dedicated to preventi...
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Wrongful Convictions

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Hallmarks of a Wrongful Conviction

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Wrongful Convictions

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