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Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
Wrongful Convictions
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
    • Can We Blame Wrongful Convictions on Simple ‘Human Errors’ ?
    • 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
    • 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.
    • Police, the gatekeepers to the criminal justice system, are subject to:
      • Bias;
      • Ends-Means reasoning;
      • Ambition;
      • Isolation.
    • All contribute to misconduct
    • 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.
    • 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.
    • 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.