Eyewitness Identification Error

Eyewitnesses are the leading cause of wrongful convictions

Eyewitness identification error is one of the primary contributors to wrongful convictions. In fact, according to the Innocence Project, it was a contributing cause in approximately 70% of convictions overturned through DNA testing.

Eyewitness evidence can be unreliable for many reasons such as stress, emotions, lighting and distance issues, and memory recall. The public tends to know very little about the dangers of relying on this type of evidence, placing a lot of confidence in it. This creates issues in trials because juries are made up of people from the public.

The cross-race effect adds to the unreliability of eyewitness testimony. Studies examining the cross-race effect have shown that a person is 1.4 times more likely to remember, and correctly identify, the face of an individual who is the same race as she or he is when compared to their ability to remember and identify the face of the member of another racial group.

Eyewitness testimony was a contributing factor in the wrongful conviction of Anthony Hanemaayer. The eyewitness in this case was the victim’s mother. At trial, she confidently identified Anthony as her daughter’s attacker, being so convincing that even Anthony believed he would be found guilty. The now-infamous “Scarborough rapist” Paul Bernardo later confessed to the attack.

False Confessions

When the innocent admit guilt

A confession from an accused given during a police interrogation is often viewed as the Crown’s most powerful piece of evidence. The Innocence Project statistics reveal that in more than 25% of cases where the individual was exonerated on the basis of DNA evidence, a full false confession or incriminating statement was given by the innocent person. In fact, even when DNA evidence that excluded the accused is available at trial, juries still place greater weight on the confession.

Individuals are often pressured during police interrogations to admit guilt. This is because when police accuse someone of committing a crime, they believe that person is guilty. This means that when they enter the interrogation room, they have one goal: to get the person to confess.

Innocent people may have the opinion that they “have nothing to hide”, leading them to speak openly to police, and waive their right to counsel. This could lead them to unknowingly say something that is self incriminating, or confess to the crime. This is due in part to the preferred method of interrogation, which is the Reid interrogation model.

The Reid interrogation model is a confrontational interview technique that is meant to “break-down” the accused, and induce a confession. This style allows for interrogations to last for many hours, and ignores a person’s basic needs – accused individuals have been held without access to water, washrooms, food, and legal counsel. The accused may also be threatened physically and/or psychologically, and not informed of his or her rights. A person could reasonably confess to a crime they did not commit under this mounting pressure, or out of fear for their safety, or the safety of their loved ones. They may also believe that their innocence will eventually be proven through the judicial process, however once a person has confessed, it has lasting consequences.

A common phenomenon called "confession contamination" has been shown to occur when there is a very long interrogation. In such cases, the accused confesses to the crime, gives specific details that the trier of fact, be it a Judge or jury, comes to believe that “only the guilty person would know.” In reality, the interrogator gives the details to the accused during the interrogation. The danger of confession contamination is a clear reason why interrogations must be recorded in full and all of the footage should be given to the defence.

Although it is now mandatory in many jurisdictions that interrogations be recorded, interrogations may not be fully recorded, with only the final confession making the cut. This means that juries would not be able to see what prompted the confession, colouring their ability to decide if it is a reliable statement, or was coerced by the police.

A false confession caused Romeo Phillion to spend 31 years in prison for murder. Even though police had discovered that Romeo had an alibi for the time when the murder happen, even though Romeo recanted his confession numerous times, and even though Romeo maintained his innocence for 31 years, his false confession kept him in prison for most of his adult life.

Mr. Big Stings

Police who trick innocent people into confessing

A “Mr. Big” sting is a controversial undercover operation developed in Canada during the 1990’s. While the practice is banned in other countries such as the United States and Britain, the practice is still in use in Canada and Australia.

Police officers spend weeks and months undercover learning as much as they can about their suspect, such as their habits, and where they spend their time. After they have gathered the information they need, police and set up an elaborate, fake criminal operation. In order to lure their suspect into their gang, one will be tasked with befriending him or her. As the final step in the process, the head of the gang, “Mr. Big”, asks for a confession to the crime as proof of loyalty to the organization, usually with the promise of helping them prove their innocence to a crime by having another member of the gang confess.

Confessing to Mr. Big appears to have no consequences on the suspect, who may also have been threatened, causing them to fear for their safety, and enticing them even further to confess.

The pressure to falsely confess to Mr. Big was one of the reasons for the wrongful conviction of Kyle Unger. Kyle was the target of a Mr. Big sting after police were unable to uncover enough evidence to convict him. Their tunnel vision on Kyle led them to set up the months long, and expensive Mr. Big sting against him. Though Kyle often declared his innocence before meeting the boss, and contradicted himself on the details of the crime, his false confession contributed to his murder conviction. 

False Guilty Pleas

When the innocent bargain for their freedom

Guilty pleas and plea bargaining are often cited as being necessary for our criminal justice system to work properly and in a timely fashion. In fact, the vast majority of cases brought to trial end in plea bargains. Some estimates put that number as high as 95% of trial cases.

It seems difficult to understand why an innocent person would plead guilty to a crime, however there are many reasons to take a plea deal. With the prospect of facing life in prison if convicted of murder, an accused may decide to accept a reduced sentence, or a lesser charge such as manslaughter. A convincing and compelling eyewitness or expert testimony could lead the accused to believe they won’t convince the jury of their innocence.

In the case of Maria Shepherd, a false guilty plea was what sent her to jail for a crime she did not commit. The Crown planned to call the disgraced ex-pathologist Charles Smith as their key witness. At the time, Charles Smith was known as the leading pediatric forensic pathologist. A plea deal would mean that Maria would serve a shorter sentence in a jail near her home. 

Tunnel Vision

Focusing on one suspect to the exclusion of all others

Tunnel vision is a significant problem under the umbrella of professional misconduct. In the Morin Inquiry, tunnel vision was defined as “…a single-minded and overly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably colour the evaluation of information received and one’s conduct in response to the information.” In some cases, police and prosecutors seek evidence that fits their theory as opposed to developing a theory based on existing evidence.

Police and prosecutors affected by tunnel vision don’t necessarily have bad intentions. They also don’t necessarily realize they are suffering from its sinister effects. Pressure to solve a crime and ensure the perpetrator is ‘brought to justice’ increases this psychological phenomenon.

Tunnel vision played a significant role in Thomas Sophonow’s wrongful conviction. In that case the police were in contact with the actual killer, however, they were so focused on Thomas that they lost sight of any potential alternative suspects.

Systemic Discrimination

Racism, Gender Bias and Socioeconomic Status

Research has shown that race and gender play a significant role in wrongful convictions. The New York Innocence Project reports that 70% of those exonerated by DNA evidence were racialized persons. As a point of comparison, approximately 61% of the American population are of Caucasian descent. It is clear that racial minorities are at a higher risk of being wrongly convicted.

In Canada, Aboriginal people are drastically overrepresented in the criminal justice system. According to Statistics Canada data from 2016, 26% of admissions to provincial and territorial correctional services were Indigenous adults, yet Indigenous adults comprise only 3% of the Canadian adult population. While we will never be sure of the numbers, there is good reason to believe that Indigenous people are wrongly convicted at rates higher than their non-Indigenous counterparts.

Donald Marshall Jr., a Mi’kmaq man from Nova Scotia, was wrongly convicted  of murdering a friend by an all-white jury. When he was exonerated 11 years later, the Inquiry into his wrongful conviction cited systemic racism as the main reason for his conviction. 

Evolution of and Errors in Forensic Science

The conflict in the justice system's quest for finality and the ever changing nature of science

DNA analysis was introduced to the criminal justice system in the 1980s and has helped exonerate many innocent people. The results of forensic analysis techniques such as hair microscopy, bite mark comparisons, firearm tool mark analysis, shoe comparisons and blood typing that were accepted as reliable early on  are now under serious scrutiny. Many have been found to be unreliable and inadmissible as evidence. Reliable forensic techniques are still subject to human interpretation and identification, so there is always the potential for error.

Hair microscopy evidence played a role in the wrongful conviction of James Driskell. It was argued that three hairs found in James' van matched those of the victim, suggesting that James had forced the victim into his vehicle which he took to the murder site. DNA testing later reveled that the hairs thought to be the victim's were not.

Jailhouse Informant Testimony

They rush to testify like vultures to rotting flesh or sharks to blood – Commissioner Cory in the Sophonow Inquiry

Untruthful or incorrect testimony can lead to wrongful convictions, especially where there is no concrete physical evidence. According to the Innocence Project, in more than 15% of wrongful conviction cases overturned through DNA testing, an informant testified against the defendant at the original trial.

The most common form of informant testimony is from a “jailhouse snitch.” They are often offered incentives to testify, such as a lighter sentence, the withdrawal of criminal charges or money. In many past wrongful conviction cases, the “deal” given to the informant in exchange for his testimony was kept secret from the defence and the trier of fact.

Jailhouse informant testimony was a key factor in Guy Paul Morin’s wrongful conviction. Two jailhouse informants, one of whom had been classified a dangerous offender, testified against Guy Paul. Several Commissions of Inquiry have made recommendations regarding the use of jailhouse informants. To the credit of the Prosecution Services in Canada, many of the recommendations have been followed and the use of jailhouse informants has declined.

Professional Misconduct

How Lawyers, Police and Forensic Experts contribute to causing a wrongful conviction

Procedural issues relating to how a case is tried can have terrible consequences for wrongful convictions. Professional misconduct relates to how the police and prosecution handle a case, as well as the diligence with which the defence in mounted.

Though Innocence Canada understands that the vast majority of lawyers and police act with the best of intentions, defence council can mishandle their client’s case. Defence council, especially those provided to lower income individuals through Legal Aid, are often overworked and have a much higher case-load than is sustainable. This effect of being spread too thin could lead to mistakes in judgement.

Police also face many pressures when investigating high profile cases. These can come from the public, their superiors, the media, and the victim’s family and friends. While studies have shown that putting some pressure on people could be beneficial and increase productivity, too much pressure can have the opposite effect and lead to tunnel vision (discussed above).

The withholding of evidence from the defence is an example of professional misconduct by the prosecution. With few exceptions, the accused and his or her counsel have access to all evidence the Crown has, including exculpatory evidence. In the 1991 decision of the Supreme Court of Canada, R. v. Stinchcombe [1991] 3 SCR 326, Justice Sopinka held that “the Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.”

In Stephen Truscott’s case, the Crown did not disclose its knowledge that an individual had been charged with sexually harassing young girls (around the same age as Truscott’s alleged victim) within the immediate area.