The Department of Justice Canada recently released a document entitled: Report on the Prevention of Miscarriages of Justice (2005). This document, compiled by a working group composed of prosecutors and police, contains a comprehensive set of recommendations aimed at preventing future miscarriages of justice. Contained in the report is a review of research regarding the known prevalence of wrongful convictions internationally, as well as an overview of the recommendations stemming from recent Canadian Commissions of Inquiry called to examine the circumstances of specific wrongful convictions. Further, it presents a review of the literature around the precipitating factors that have been found to contribute to wrongful convictions including: tunnel vision, eyewitness identification and testimony, false confessions, in-custody informers, DNA evidence, forensic evidence and expert testimony. It then follows with a list of far-reaching recommendations to address these specific problems. The first of these, tunnel vision, has been described as a singular narrow focus on an investigation or prosecutorial theory to the extent that all other theories or plausible explanations are ignored. The resultant is that exculpatory evidence that would eliminate an individual is disregarded. Recommendations from the report specifically address the need for both Crown Attorney and police practices to use second opinions, pre-charge screening, and training on the dangers of tunnel vision.

 

The second area of concern, erroneous eyewitness identification and testimony has long been acknowledged as the leading contributing factor to wrongful convictions. In fact, earlier studies indicate that it is the most significant factor, as Huff et al., (1986) demonstrate it influenced the outcome of 60% of reported cases, whereas Scheck, Neufled and Dwyer (2000) found that in 52 cases they had studied where DNA exonerations had occurred, all had been convicted through incorrect eyewitness identification. Several of the report’s recommendations address line-up and photo-spread procedures to eliminate problems associated with identification. A third contributing factor, false confessions, is also addressed in this report. While most believe it impossible that anyone would confess to a crime they did not commit, research has shown that the psychology of police interrogation can induce false confessions, particularly when it relies on psychological influence, persuasion, deception and coercion (Drizin and Leo, 2004). Recommendations in the report address the need to video record all interviews with suspects, as well as training around the problems associated with police induced confessions. The curtailment of the use of in-custody informers in criminal cases is the fourth recommendation in this report. In-custody informers have contributed to wrongful convictions by fabricating testimony in exchange for favour or benefit, and are notoriously deceitful. Recommendations in this regard address training and policy guidelines that severely limit their use, as well as the establishment of an in-custody informer registry for each province.

 

The fifth recommendation addresses the use of DNA evidence. In recent years the presence of DNA evidence has allowed many individuals to be eliminated as suspects, as it represents an almost absoute form of scientific proof of guilt or innocence. This tool has also contributed significantly to exonerating those individuals who had the misfortune of being wrongly convicted prior to the advent of DNA analysis. In cases where physical evidence has been preserved, DNA can serve to demonstrate non-involvment. The report recommends that its use be expanded, in addition to further study of the issue of post-conviction DNA testing. The sixth recommendation addresses forensic evidence and expert testimony and is aimed specifically at prosecutors. Through education and the establishment of a national central repository to track developments and advancements in this field, prosecutors will have access to up to date information in this area. Finally, the last general recommendation addresses the need for overall education efforts through a conference and specific educational techniques and topics. The report further recommends that policies be developed to address how long to keep police notebooks, Crown files and trial exhibits, as well as the responsibilities of the Crown when an accused person is receiving ineffective counsel at trial.

 

The existence of such a report is laudable as it contains a set of comprehensive recommendations that address known contributing factors to wrongful convictions. As Justice Kaufman points out[1] the report is lent further credibility as it comes from prosecutors and police, two groups who in the past have been accused of contributing to miscarriages of justice. Furthermore, Kaufman notes that identifying the causes of wrongful conviction is far simpler than preventing them. While many of the recommendations offer practical alternatives, several of the report’s solutions involve substantial attitude and work-place cultural change, particularly focusing on co-operation, independence and openness. In this sense, the report represents a profound faith that provincial governments are willing to address this cause and are prepared to direct the necessary resources towards the recommended changes. Given the private and secretive nature of much police and prosecution work, many of the suggested changes may be a long time in coming. Several recommendations mirror those found in three Commissions of Inquiry undertaken in recent years around the wrongful convictions of Donald Marshall Jr., Guy Paul Morin and Thomas Sophonow, respectively. And while some changes to police and Crown practice swiftly followed these commissions, a great majority of them have yet to be addressed by provincial governments. Furthermore, a report addressing prevention is aimed at stopping such miscarriages of justice from occurring in the first instance. Consequently, it will do little for those individuals who are currently wrongly convicted and imprisoned. There is a need for policy in this regard, particularly to address long-term financial and emotional support following exoneration.

 

Clearly, the policy recommendations towards preventing miscarriages of justice are an important commitment from the Canadian federal government. Given human nature, miscarriages of justice will likely continue to occur to some degree in the future. What is needed hereafter is continuing follow-up and study of the extent of implementation of the recommendations, as well as an ongoing update of case law, changes in forensic science and future legal research in this regard.

 

 

 

Department of Justice (2005). Report on the Prevention of Miscarriages of Justice. Federal/Provincial/Territorial Heads of Prosecution Committee Working Group.

 

Drizin, S.A., and Leo, R.A. (2004). The problem of false confessions in the post-DNA world. North Carolina Law Review, 82(3), 892-1007.

 

Huff, R., Rattner, A., and Saragin E. (1986). Guilty until proven innocent: Wrongful conviction and public policy. Crime and Delinquency, 32, 518–544.

 

Scheck, B., Neufeld, B., and Dwyer, J. (2000). Actual innocence. New York: Doubleday

 

 

 

 

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