- Eyewitness Identification Error
- False Confessions
- Mr. Big Stings
- False Guilty Pleas
- Tunnel Vision
- Systemic Discrimination
- Evolution of and Errors in Forensic Science
- Jailhouse Informant Testimony
- Professional Misconduct
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.
When the innocent admit guilt
A confession is seen to be very powerful evidence of guilt, which is why false confessions can easily lead to wrongful convictions. People are unwilling to believe that someone who has confessed to a crime did not actually commit that crime.
Despite this knowledge, no rules have been legislated which would create procedures for interviewing adults that would guard against false confessions. The only safeguard against having false confessions used in court by the prosecution is the judge, who has the power to refuse to allow the confession into evidence. However, even the courts are reluctant to exclude confessions obtained under intense interrogations, or confessions made by individuals with significant mental health issues or intellectual disabilities.
That being said, the Supreme Court of Canada has established a standard that all confessions must meet in order to be admissible in court, called the Confessions Rule – this is the standard of “voluntariness”. The court under this standard will only admit a confession as evidence if: there are no threats or promises, if there is no police trickery or oppression, and where the accused can be shown to have confessed on their own free will without any influence. This rule is intended to guard against the dangers of false confessions. The courts, however, have had the opportunity to mandate that all confessions must be videotaped or they would be inadmissible. But they did not take this opportunity, and instead established that while recording the confession was advisable, the confession would still be admissible if it met the standard of voluntariness.
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.
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.
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.
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.
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.
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.
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.
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  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.