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Law Reform |
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This page last updated Feb 26 2006 "Our procedure has always been haunted by the
ghost of the innocent man convicted. It is an unreal dream." - (1923)
United States v Garsson, 291 F 646, 649 (SDNY) (Learned Hand J) Hello everyone and thank you for coming. As a
member of the Legal Research Foundation (LRF) Executive Council and co-editor
of the New Zealand Law Review, I want to welcome all of you to the LRF
Miscarriages of Justice Seminar particularly our friends and colleagues
from various government departments in Wellington, from other universities in
New Zealand, and from overseas. Your presence here in Auckland is much
appreciated and you have added and will add much depth and expertise to
the important subject of wrongful criminal convictions that we discuss today.
I also want to congratulate Justice Tom Thorp on the publication of his
important and meaningful review of miscarriages of justice in New Zealand.
The Legal Research Foundation is pleased to have published Justice Thorp's
study as a monograph, and is glad that the work has received well-deserved
attention from the New Zealand government, the media and the public. I have only 25 minutes with you today and, although
we will have time for questions during the first panel discussion, I would
like to leave some limited opportunity for them at the end of this
presentation. So I will be brief and this talk will, of necessity, be a
discussion of the subject 'once over lightly'. I have entitled my presentation, "Lawful
Miscarriages of Justice", a phrase that may seem oxymoronic to some of
you, not to mention a bit cryptic. But I chose that title intentionally to
make a simple point. We tend to think of miscarriages of justice as taking
place in the criminal justice system because something went wrong. Justice
Thorp's paper, for example, points to research focusing on shoddy or
fraudulent forensic evidence, witness perjury, improperly obtained
confessions, and police and prosecutorial misconduct, as causing many of the
wrongful convictions that we are familiar with from overseas cases, and, to a
lesser extent, in New Zealand. Undoubtedly, the sum total of intentional,
reckless, or negligent misbehaviour by police prosecutors, witnesses,
scientists, and judges plays the biggest role in creating our current
archetype of a miscarriage of justice, namely: wrongful convictions resulting
from some subversion of the rules of evidence, criminal trial procedure, or
criminal investigation rules that are ostensibly designed in the first
place to stop such improper convictions from taking place. However, I would like to propose another model: a
different way of looking at miscarriages that I believe sustains wrongful
convictions in the criminal justice system to some cognisable (if unknowable)
extent. And that is: miscarriages of justice that occur when everything goes
right in a system of criminal adjudication and despite the fact that nothing
obvious went wrong. To put it another way, miscarriages of justice can and do
occur when as they are understood to operate at any given time in the
criminal justice system the legal rules of criminal investigation are
honoured, there is no police or prosecutorial misconduct, the dictates of
criminal trial procedure are obeyed, and the law of evidence is followed. I
call these "lawful miscarriage of justice", and I would like
briefly to suggest how they come about, what sustains them, and what we might
do about them in a criminal justice system that is: (1) committed to the
neutral application of substantive and procedural rules; and (2) designed
largely around the idea that, at first instance, problems of wrongful
conviction can be avoided by the conscientious application of those rules. Let's start with a simple and undoubtedly familiar
example. I am certain that there are defence attorneys in the room - and
maybe even some judges and prosecutors - who have had the experience of
suspecting that an individual was wrongfully convicted notwithstanding the
fact that they could point to no subversion of any of the investigative,
procedural, or evidential rules designed to prevent a miscarriage of justice
from taking place. Indeed, even when all legal niceties are observed, judges
and juries can still make mistakes, and simply get things wrong. This can be
true either with respect to a defendant's overall factual guilt or, with respect
to defendants bearing some culpability for criminal conduct, as to what
particular level or type of offence they have actually committed. The
criminal justice system clearly accepts the possibility of error in
adjudication or it wouldn't have established an appeals process (!)
Similarly, the standard of proof "beyond a reasonable doubt" at a
criminal trial is designed to minimise, not eliminate mistakes, and merely
shift the risk of an erroneous finding of guilt towards the Crown and away
from the accused, hi short, because guilt in a criminal justice system is
adjudicated by people whose judgment is inherently fallible, wrongful
convictions will occur as a result of mistaken judgments even when there has
been no intentional, reckless, or accidental subversion of legal rules
designed to prevent such miscarriages from taking place. In addition to the possibility of simple error in
criminal trial adjudications, we should next look at the manner in which the
rules of criminal investigation, procedure, and evidence themselves sustain
wrongful convictions. Again, such a notion seems counterintuitive. However, a
few examples will demonstrate the point. Many studies of wrongful convictions including
Justice Thorp's make clear that mistaken eyewitness identifications,
wrongful confessions, and perjured jailhouse informant testimony are three
leading causes of miscarriages. Yet, what, if anything, does the New Zealand
criminal justice actually do to decrease the risk of such evidence leading to
an erroneous conclusion of guilt? The answer is: not much. For example, at present in New Zealand, there are
few formal, legal controls on the use of jailhouse informant testimony and
apart from the usual evidential warnings from a judge few formal, legal
efforts made to vet such testimony before it is presented to a jury for an
ordinary assessment of credibility at a criminal trial. Similarly, and
despite a growing body of such expertise, there is little effort currently
made in New Zealand courts to present juries with expert evidence on the
nature, limits and precision of eyewitness evidence in a criminal case. Nor
are current police procedures for conducting line-ups, photo spreads, and the
like, in line with modern research as to how eyewitness identification evidence
can be generated in the most reliable manner possible. Finally, New Zealand
law makes no fixed provision for the videotaping of all confessions obtained
by police during custodial interrogation and questioning a practice that
has been described in overseas literature as the single (and simplest)
innovation to prevent coercive police interrogations and the false
confessions that result. Indeed, current Bill of Rights jurisprudence, and
common law rules regarding the admissibility of confessions, gives New
Zealand police a reasonable amount of latitude to subvert rights to silence
and counsel, and to detain suspects illegally in the hopes of obtaining
inculpatory statements. My point is that, while controlling official
misbehaviour with the potential to generate false confessions, New Zealand
law also permits through the application of those very same rules a good
deal of the police misconduct that can produce such results. Of course, this
is not to say that false confessions are a rampant problem in the New Zealand
criminal justice system (although, in contrast to the many studies of the
problem overseas, no substantial research has been done on this issue here).
The point is not how many police obtained confessions are actually false, but
how the rules of the criminal justice system can work both to allow false
confessions to be generated, and then to be used at trial as 'proof of an
accused's guilt. In and of themselves, procedural and evidential
doctrines related to eyewitness identification testimony, the use of
jailhouse informants, confessions, and the like, seem ripe for reform.
However, looked at from a more macro-perspective, such legal adjudicative
rules make a bigger point. That is, an accused can be convicted in New
Zealand on the basis of perjured jailhouse informant testimony, or mistaken
eyewitness identification, or a false confession, despite the fact that legal
rules designed to filter out such improprieties actually play a significant
role in supporting and sustaining the use of such proof. In sum, the very
rules of pre-trial investigation and criminal trial adjudication meant to
prevent miscarriages of justice can, even on their true and dispassionate
application, be instrumental in allowing the very errors in a criminal
proceeding that they were designed to prevent. This is an important insight,
and one that should give us pause about relying on the 'correctness' of
guilty verdicts as a result of the 'correct' application of legal
adjudicative rules. A similar analysis could be done of appellate procedures
in criminal cases, particularly where defendants allege an erroneous
conviction despite official compliance with all legal requirements leading to
a finding of guilt. Speaking personally, I find it very hard to predict when
and for what reasons appellate judges will reverse a guilty verdict in a
criminal case. The only thing I do know is that reversals for alleged legal
or factual errors are rare. New Zealand appeal courts like those in every
other common law jurisdiction give great deference to the conclusions of
judges and juries that defendants are factually guilty of the crimes charged.
As Justice Thorp points out in his study and despite being the principal
mechanism for the correction of legal errors and the prevention of miscarriages
appellate principles seem heavily weighted towards: (1) protecting the
finality of guilty verdicts; and (2) whether deserved or not, bringing an end
to lingering legal and factual questions regarding a defendant's guilt. While the goal of finality is a worthy one, and the
result of appellate determinations undoubtedly correct in the aggregate, it
seems difficult to place ordinary appeal processes at the forefront of any
campaign against miscarriages of justice in New Zealand today. In sum, and since time is running short, my thesis
is that, whether they concern themselves with criminal investigations, trial
and appellate procedures, or the presentation of evidence in criminal
proceedings, legal adjudicative rules designed to act as a gatekeeper against
miscarriages of justice also furnish also legal 'cover' and the imprimatur
of law to some unknown percentage of wrongful convictions that take place
in both the New Zealand criminal justice system and overseas jurisdictions
where the problem has been addressed. Hence, it is not unreasonable to speak
of 'lawful' miscarriages of justice, and wrongful convictions that are
actually 'permitted' and 'sustained' by law. Like Shakespeare's Othello, the
noblest aspect of our criminal justice system - its commitment to neutral,
rule-based adjudication designed to create a 'correct' determination of guilt
- can sometimes destroy the very object of its affection: our confidence in
the legal and factual foundations of an accused's adjudicated culpability for
criminal acts. So, what is to be done? There are two broad types
of reforms that can be adopted, one practical, and the other more conceptual.
As to the first, Scheck, Neufeld and Dwyer American lawyers who founded the
first "Innocence Project" at Cardozo Law School in the United
States have noted that the criminal justice system "can minimise the
risks of persecuting the innocent without undermining, and actually
improving, the prosecution of the guilty".[1] Along these lines,
practical changes to the rules of criminal investigation, criminal procedure,
and evidence may help reduce common causes of wrongful convictions in New
Zealand today. This will be particularly true if such changes are focused in
areas of the criminal justice system most likely to generate errors and
misconduct in a criminal case. Imagine, if you will, a legislative
"innocence impact evaluation", employed to vet legal rule changes
for whether they reduce the possibility of wrongful convictions. Such
assessments would clearly support the videotaping of all police-initiated,
custodial interrogations, greater legal controls on the use of jailhouse
informants, improved procedures for the handling and assessment of eyewitness
testimony, [2] and reforms to the discovery process. [3] These changes could
help head off the kinds of mistakes intentional or otherwise that
typically lead to miscarriages in the first place. [4] Perhaps more
importantly, through Legal Aid expenditures and in other ways, the New
Zealand criminal justice system should ensure that defendants in criminal
cases have equal and meaningful access to the kinds of expert forensic help,
investigatory resources, and lawyering skill that can be decisive in a
criminal proceeding. [5] Indeed, as American law professor Andrew Leipold has
pointed out, official responses to preempting miscarriages of justice need
not focus - as they have tended to so far - on restricting "certain
types of evidence that is presented at trial". [6] Instead, "the
best defence against false evidence that points to guilt" is the ability
of an accused to generate "truthful evidence that undermines the
prosecution's case". [7] A government that does not give accused persons
the resources they need to defend themselves at trial cannot truly tout its
commitment to minimising wrongful convictions, either as an overall matter,
or with respect to any particular criminal case. The second change is more conceptual, involving, as
it does, a shift in thinking about the safety of criminal verdicts, the
possibility of error, and the benefits of finality in the determination of
guilt. As United States law professor Bennett Gershman has noted, "the
extent to which our legal system tolerates trial error and misconduct
expresses society's legal and moral conception of courtroom justice".
Accordingly, we must be willing to revise our orientation particularly in
the hearing of criminal appeals towards the presumption that guilty
verdicts are correct, that we must protect such verdicts at first instance,
and that defendants should encounter multiple obstacles to re-litigating the
issue of criminal culpability. To the contrary, in order to prevent and
remedy miscarriages of justice, the criminal justice system should be as
supportive of 'innocence tests' whether coming from DNA analysis or
otherwise as it is of principles of finality, deference to trial verdicts,
and 'harmless error' determinations on appeal. We may also have to admit, as
Justice Thorp has flagged in his study, that the criminal appellate process
is ill suited towards the kinds of intensive factual and legal investigations
needed to ferret out wrongful convictions in criminal proceedings. As he has
recommended, the setting up of an independent and adequately resourced
Criminal Cases Review Board as has been established in England and Scotland
may be the only real way to give claims of miscarriage the full
consideration that they truly deserve. [9] Thank you very much for your kind attention. I am
happy to take questions or comments about anything I have said. An
opportunity for discussion will also be available in the first panel
presentation to be held later this morning. [1] Scheck,
Neufeld and Dwyer, Actual Innocence: Five Days to Execution and Other Dispatches
from the Wrongly Convicted (2000) xvii. Readers interested in other American
writing on the causes of, and cures for, miscarriages of justice may consult:
Yant, Presumed Guilty: When Innocent People are Wrongly Convicted (1991);
Radelet, Bedau and Putnam, In Spite of Innocence: Erroneous Convictions in
Capital Cases (1992); Connors et al, Convicted By Juries ,Exonerated By
Science: Case Studies In the Use of DNA Evidence to Establish Innocence After
Trial (1996:US Department of Justice National Institute of Justice) Gershman,
Trial Error and Misconduct (1997); Fisher, "Convictions of Innocent
Persons in Massachusetts: An Overview (2002) 12 BU Pub Int LJ 1; Thomas et
al., "Is It Ever Too Late for Innocence? Finality, Efficiency, and Claims
of Innocence" (2003) 64 U Pitt L Rev 263; Christiansen, Innocent: Inside
Wrongful Conviction Cases (2004); Gross et al, "Exonerations in the
United States: 1989 Through 2003" (2005) 95 J Crim & Criminology
523; The Innocence Commission for Virginia, A Vision for Justice: Report and
Recommendations Regarding Wrongful Convictions in the Commonwealth of
Virginia (2005) (available at http://www.icva.us); Leipold, :"How the
Pretrial Process Contributes to Wrongful Convictions" (2005) 42 American
Crim LR 1423. [2] Along
these lines, see the discussion of the New Zealand Law Commission regarding
proposed changes to the investigative and evidential rules for dealing with
eyewitnesses in criminal cases. These rules are now contained in proposed
clause 41 of the Evidence Bill 2005 (available at: http://www.know!edge-
basket.co.nz/gpprint/docs/bills/20052561.txt). New Zealand Law Commission,
Evidence: Reform of the Law (1999) (R55: Vol 1) 53-61. [3] Along
these lines, see the proposed criminal discovery regime outlined in clauses
17-57 (Part 2) of the Criminal Procedure Bill 2004 (available at:
http://www.knowledge-basket.co.nz/gpprint/docs/bills/20051582.txt). [4] For a
specific and comprehensive set of such proposals, see Scheck, Neufeld and
Dwyer, above note 1 at 256-60 (Appendix 1). [5] For a
discussion of this issue, see Optican, "Science, Justice and the New
Zealand Bill of Rights" [2004] 36:2 The Australian Journal of Forensic
Sciences 79. [6] Leipold,
above note 1 at 1126. [7] Ibid. [8] Gershman,
above note 1 at 2. [9] 1 am
grateful to Professor David Gottlieb of the University of Kansas School of
Law (USA) for his helpful comments on a draft of this talk. |
