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 75% of convictions overturned through DNA testing.

Eyewitness evidence can be unreliable for a variety of reasons including but not limited to stress, emotions, lighting and distance issues, and memory recall. The general public – from which jurors are drawn – tend to know very little about the dangers of relying on this type of evidence and therefore tend to place a lot of confidence in it.

Eyewitness testimony was pivotal in the case of Stephen Truscott. Truscott was 14 years old when he was convicted of the murder of Lynn Harper. An eyewitness testified that he had seen Truscott crossing a bridge with Harper prior to her death, and then crossing that same bridge alone after her death. It was later determined that the distance between Truscott and the eyewitness was too great for the identification to be reliable. Yet, at the time of Truscott’s trial, this was an important piece of evidence which led to his conviction.

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 in the absence of any 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.” Such individuals are often offered incentives to testify, such as a more lenient 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 Morin. Several Commissions of Inquiry have made recommendations regarding the use of jailhouse informants. To the credit the Prosecution Services in Canada, many of the recommendations have been followed and the use of jailhouse informants has declined.

False Confessions

When the innocent admit guilt

A confession from an accused is often viewed as the Crown’s most powerful piece of evidence. The public – from which Judges and juries come – have a difficult time accepting that someone would admit to a crime they did not commit. Despite this common sense belief, the Innocence Project statistics reveal that in 16% of cases where the individual was exonerated on the basis of DNA evidence, a full false confession was given by the innocent person.

Why would someone falsely confess? Once taken into police custody, individuals are often pressured during interrogations to admit guilt in order to receive a benefit. Interrogations may not be recorded in their entirety, with only the final confession making the cut. The accused may be threatened (physically and/or psychologically) during interrogation, and not informed of his or her rights. Accused individuals have been held without access to water, toilet facilities, food, and legal counsel. Although it is now mandatory in many jurisdictions that interrogations be recorded, the above practices are still commonplace and there is a lack of awareness of the extent of the problem.

Confession contamination is a common phenomenon in cases where there is a prolonged interrogation. In such cases, the accused confesses to the crime, citing specific details that the trier of fact comes to believe “only the guilty person would know.” In fact, the details are obtained by the accused from the interrogator, throughout the course of the interrogation. The danger of confession contamination is another reason why interrogations must be recorded in full and all of the footage should be disclosed to the defence.

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 to find evidence that fits their theory as opposed to developing a theory on the basis of existing evidence.

Police and prosecutors affected by tunnel vision are not necessarily malicious nor do they realize they are suffering from its insidious effects. Pressure from the public to solve a crime and ensure the perpetrator is ‘brought to justice’ exacerbates 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 Sophonow that they lost sight of any potential alternative suspects.

Systemic Discrimination

Racism, Gender Bias and Socioeconomic Status

Research has shown the race and gender play a significant role in wrongful convictions. The New York Innocence Project reports that more than 70% of those exonerated by DNA evidence were racialized persons. As a point of comparison, over 70% 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. As of February 2013, 23.2% of the federal inmate population was Aboriginal yet Aboriginal people comprise only 4.3% of the Canadian population. While we will never be sure of the numbers, there is good reason to believe that Aboriginal people are wrongly convicted at rates higher than their non-Aboriginal counterparts.

Donald Marshall Jr., a Mi’kmaq man from Nova Scotia, was wrongly convicted – notably by an all-white jury – of murdering a friend. When he was exonerated 11 years later, the Inquiry into his wrongful conviction cited systemic racism was cited 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 first introduced to the criminal justice system in the 1980s, and has aided in the exoneration of 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 in criminal courts as reliable have come under serious scrutiny in recent years. Moreover, 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 Kyle Unger. An expert at Unger’s trial testified that a hair on the victim’s sweatshirt was consistent with a sample of Unger’s hair. DNA testing later revealed that the hair thought to be Unger’s was not.

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 dire consequences regarding 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.

The withholding of evidence from the defence is an example of professional misconduct. With few exceptions, the accused and his or her counsel are entitled to 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 the case of Guy Paul Morin, the Crown did not disclose important information they had about other potential suspects. 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.