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Wrongful Convictions
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Wrongful Convictions



Hallmarks of a Wrongful Conviction

Hallmarks of a Wrongful Conviction



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    Wrongful Convictions Wrongful Convictions Presentation Transcript

    • WRONGFUL 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 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.
    • System Errors Happen as Well
      • systemic factors which foster wrongful convictions are informed by politics, racism, sexism, professional interests, class prejudice, and social inequality.
    • 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.
    • 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.
    • Confabulation
      • The need to confirm a predetermined belief in a suspect’s guilt filters through other areas of the prosecution process, adversely impacting:
    • Perceived Truth
      • Witness interviews;
      • Eyewitness procedures;
      • Suspect interrogation;
      • Management of evidence;
      • Management of informants.
    • Witness interviews
      • Pressure to conform to police theory
      • Pressure to implicate someone
      • Pressure to delete/forget contradictory evidence
    • 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.
    • Eyewitness Identification
      • The Central Park Jogger rape case
      • Single biggest cause of wrongful convictions
    • 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
    • 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.
    • Management of Evidence
      • Failure to collect or preserve evidence
      • Mishandling of exhibits,
      • Poor or false forensic examination.
    • 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“.
    • 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.
    • 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.
    • 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.
    • Appellate Remedies
        • Most effective when errors of law responsible.
        • Limited review of the facts.
        • Limited admissibility of new evidence.
    • Ministerial Review by the Minister Of Justice:
        • Slow.
        • Perceived lack of independence.
        • Most provinces do not provide legal aid.
    • 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.