2.4 Prevention of Wrongful Convictions

Public Prosecution Service of Canada Deskbook

Directive of the Attorney General Issued under Section 10(2) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

1. Introduction

Crown counsel play an important role in the prevention of wrongful convictions. Crown counsel assess the evidence in a given case to determine if there is a reasonable prospect of conviction, and must continue to assess the evidence on an ongoing basis to determine whether to continue with the prosecution.Footnote 1 It is thus crucial that Crown counsel are aware of the factors and circumstances that have been identified as common in wrongful conviction cases, and take all necessary steps within their mandate to help ensure that innocent persons are not convicted of crimes they did not commit.

The primary purpose of this directive is to apprise Crown counsel of the factors that have been identified as contributing causes in wrongful conviction cases,Footnote 2 to highlight best practices that can assist Crown counsel in preventing miscarriages of justice, and to bring to the attention of Crown counsel the extensive research in this field. Bearing in mind that all cases are different, the following information is intended to provide general guidance to federal prosecutors.

Wrongful convictions are usually the result of a combination of errors; one or more of the following elements may be a contributing factor:Footnote 3

In addition to the above contributing factors, Crown counsel should also be aware that the following four “environmental or predisposing circumstances” have been identified as fostering wrongful convictions:

2. Tunnel Vision

Tunnel vision by the police, or the Crown, or both, in a given case, has been identified as a contributing factor in wrongful convictions in Canada and elsewhere.Footnote 5

Experts define tunnel vision 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 that information.”Footnote 6 Police officers and Crown counsel affected by tunnel vision can become so convinced that the correct suspect has been identified and that the theory of the case is correct, that they see only the evidence that supports that theory and ignore facts and information that do not support it.

Crown counsel must not only watch for signs of tunnel vision among the police officers involved in the investigation of the case, but they must also constantly guard against developing it themselves. One of the greatest safeguards for Crown counsel is to bear in mind the key principles regarding the role of the Crown so clearly articulated in the classic case of Boucher v The Queen.Footnote 7 In their review of the evidence in a given case, Crown counsel must remain cognizant of their duty to be fair and impartial, and to ensure they review the evidence in an objective, rigorous and thorough manner. Crown counsel fulfil a gatekeeper function by virtue of the Crown’s duty to critically and independently assess the evidence presented by the police.Footnote 8

While Crown counsel should, where appropriate, encourage co-operation and early consultation with the police during police investigations, it is crucial that Crown counsel understand the distinct and independent role of the Crown vis-à-vis the police.Footnote 9 Although the police are responsible for directing the investigation, during the file review, Crown counsel should not hesitate to question aspects and perceived shortcomings of the police investigation that relate to the sufficiency of the evidence and impact the prospect of conviction. A fair, independent and impartial review of the file by Crown counsel also means remaining open to alternative theories of the case, which may be different from the theory advanced by the police.

Public Prosecution Service of Canada (PPSC) managers and Crown counsel should also strive to create a workplace atmosphere that encourages questions, consultations and frank discussion and debate among Crown counsel and that is receptive to the expression of alternative views regarding a case.Footnote 10

During file review and trial preparation, checks and balances through supervision and second opinions should be encouraged. Crown counsel with carriage of the file may consider consulting a fellow Crown counsel who can play the role of a contrarian or devil’s advocate. This can be a very useful technique, particularly in the most serious cases.

Mentoring should be encouraged regarding various aspects of Crown counsel’s role, such as the importance of the independent role of Crown counsel vis-à-vis the police, and the appropriate limits of Crown advocacy.Footnote 11

3. Incomplete Disclosure

Incomplete disclosure by the police and/or the Crown has been a factor in some wrongful conviction cases in Canada.Footnote 12 Crown counsel must ensure they fully understand the breadth of Crown counsel’s disclosure obligations under the law and that they adhere strictly to them.Footnote 13 Crown counsel’s disclosure obligations are discussed in the PPSC Deskbook guideline 2.5 Principles of Disclosure. Crown counsel must remain mindful that the Crown’s disclosure obligation continues after conviction, including after appeals have been decided or the time for appeal has elapsed. Consequently, whenever Crown counsel receives information suggesting that there may be a reasonable basis to conclude that a miscarriage of justice likely occurred, Crown Counsel should immediately report the matter to the Chief Federal Prosecutor (CFP) for whatever further investigation or action may be required.

4. Eyewitness Misidentification

Eyewitness misidentification has been identified as the single most important factor leading to wrongful convictions, indeed the overwhelming factor.Footnote 14 Eyewitness misidentification was a key factor in a number of Canadian cases of wrongful convictions.Footnote 15 In one American study, eyewitness misidentification, either mistaken or intentional, was a factor in at least 94 per cent of the exonerations for sexual assault, child sexual abuse and robbery.Footnote 16

When the identification of the perpetrator is at issue, Crown counsel must assess eyewitness identification evidence carefully, and be cautious regarding its use, despite its potential value.

The Canadian judiciary has acknowledged the inherent frailties of identification evidence, due to the unreliability of human observation and recollection.Footnote 17 Honest and confident witnesses, who believe they recall an incident correctly, make convincing witnesses, but they can be wrong. Crown counsel must be wary of eyewitness evidence, particularly single-witness identification where there is no corroboration and be attuned to the fact that confidence does not necessarily equate with accuracy.

Crown counsel should remain mindful that a description of the offender given to the police shortly after the event, when the witness’s memory is fresh and the description is less likely to be tainted by suggestions from others or other outside influences, is the most reliable.

Crown counsel must keep current regarding developments in this area and familiarize themselves with the relevant case law,Footnote 18 as well as the best practices recommended for police forces and Crown counsel.

The PPSC has endorsed the following best practices, which are explained in greater detail in the 2011 report, The Path to Justice, Preventing Wrongful Convictions:Footnote 19

5. False Confessions, False Accusations or Perjury

Crown counsel must remain alive to the fact that for a variety of reasons individuals sometimes confess to crimes they did not commit.

The Supreme Court of Canada has acknowledged that false confessions are a problem within the criminal justice system,Footnote 20 and that innocent people make false confessions more frequently than those unfamiliar with the phenomenon might expect.Footnote 21 False accusations and perjury have also been identified as factors in wrongful conviction cases, and particularly common in homicide and child sex abuse cases,Footnote 22 although these factors have tended to receive less attention in the studies and academic literature to date.

In light of the emerging evidence regarding the existence of false confessions, Crown counsel must critically assess statements from suspects for reliability and admissibility, and should be particularly cautious when assessing the confessions of certain types of suspects, including the young and the intellectually disabled,Footnote 23 who may be particularly receptive to police suggestions and more disposed to falsely confess.Footnote 24 Crown counsel should also remain cognizant of the various reasons that a voluntary confession can be false.Footnote 25

Canadian commissions and inquiries into wrongful convictions have consistently recommended the audio-visual recording of police interviews of chief suspects and witnesses in serious crimes, including the interviews of youthful and other vulnerable witnesses.Footnote 26 The Canadian judiciary has increasingly encouraged and, in some instances, has stopped just short of insisting on, the recording of statements from suspects.Footnote 27

Crown counsel should encourage the police to record the statements of suspects and witnesses in serious crimes, including those of youthful and other vulnerable witnesses.

6. Guilty Pleas

Members of the Canadian judiciary have expressed concern about cases where defendants have pleaded guilty to serious criminal offences they did not commit to avoid the risk of a potentially lengthier sentence if convicted after trial. In such cases, although the guilty pleas were valid in the legal sense,Footnote 28 fresh evidence admitted on appeal established that the guilty pleas should be set aside as miscarriages of justice.Footnote 29 Crown counsel must be fully aware of this risk during plea resolution discussions. Crown counsel is bound by relevant Director of Public Prosecutions’ (DPP) guidelines regarding the limits of plea resolution discussions,Footnote 30 as well as ethical obligations outlined by law societies across Canada. Law society rules of professional conduct, as well as those of the Canadian Bar Association, identify the general duties of prosecutors, which include the duty to act fairlyFootnote 31 and honourably.Footnote 32

7. In-Custody Informers

Crown counsel must be particularly cautious when assessing the evidence of jailhouse or in-custody informers, who are notoriously unreliable witnesses.Footnote 33 The use of evidence from in-custody informers (which later turns out to be false) has been a contributing factor in wrongful convictions, both in Canada and elsewhere.Footnote 34 Even experienced police officers and prosecutors can be fooled by such witnesses.Footnote 35 Crown counsel must assess the evidence of in-custody informers with the utmost care and be satisfied that the evidence of the informer is credible before calling him or her as a witness. If Crown counsel is satisfied that the witness is credible, he or she should recommend to the CFP that the informer be called as a witness. If the CFP believes it is an appropriate case for the use of the in-custody informer, the CFP should seek the advice of the Major Case Advisory Committee before making a final decision. If the Committee and the CFP disagree, the matter should be directed to the appropriate Deputy DPP for a final decision. The role of the Committee is discussed in the PPSC Deskbook guideline 3.1 Major Case Management.Footnote 36

8. Forensic Evidence and Expert Testimony

Faulty forensic procedures, unreliable science and/or flawed expert opinion testimony have been factors in a number of wrongful conviction cases in Canada.Footnote 37 Crown counsel, who deal with experts from a diverse range of disciplines, must be cognizant of the risks associated with the use of forensic evidence and expert testimony. Depending on their practice, Crown counsel may develop a sound understanding of the domain of various experts with whom they interact routinely. However, the ability to remain current on significant developments in forensic science is a challenge, particularly where novel areas of expertise and science are to be relied upon in specific prosecutions.

Crown counsel should not refrain from reliance on a novel scientific theory or technique, provided there is a sufficient foundation to establish the reliability and necessity of these opinions and that the probative value exceeds the potential prejudicial impact. Crown counsel must exercise diligence in obtaining and adducing sufficient evidence to meet the factors in support of reliability (e.g., can the theory or technique be empirically validated? Is there a professional association or society offering continuing education to its recognized members? Is there a meaningful certification program? Can the findings be reliably recreated and tested by qualified examiners?) Crown counsel must also be satisfied that the evidence will be used for a proper purpose.Footnote 38

Crown counsel should also be open to case conferences between Crown and defence experts to try to narrow and/or potentially resolve the scientific issues in a given case.

Ultimately, the key issues Crown counsel must consider are the following:

  1. The validity of the science;
  2. The qualifications of the expert;
  3. The quality and validity of the testing procedures;
  4. The objectivity and independence of the opinion;
  5. Whether a proper evidentiary foundation can be laid; and
  6. The relevance of the evidence to an issue in dispute.Footnote 39

Crown counsel are encouraged to seek out educational opportunities and resources that will enable them to increase their understanding and knowledge of various forensic disciplines, and to keep abreast of the relevant jurisprudence as well as new procedures and developments in the field of forensic science.Footnote 40 Crown counsel should not hesitate to consult colleagues and superiors, and to seek the support and resources they require in prosecutions involving expert evidence with which they have little professional experience, or in very serious cases where expert evidence is a fundamental component of the case.

Provided Crown counsel exercise due care and diligence in presenting the expert opinion, establishing the sufficiency of the factual underpinning supporting it, with the fairness of the trial process in mind, the possibility of a miscarriage of justice arising from its use can be reduced.Footnote 41

8.1. DNA evidence

The advent of DNA testing has been a critical development in the field of forensic science generally, both to convict the guilty and exonerate the innocent. The legislation in the Criminal Code has been expanded and now makes it possible to obtain DNA orders following conviction in relation to more offences.Footnote 42

Crown counsel should be familiar with the legislation in the Criminal Code,Footnote 43 and relevant case law, and ensure that the DNA data bank provisions are being used to their full potential and that DNA orders are being sought in all appropriate cases.Footnote 44

Crown counsel should also make every effort to work co-operatively with the police and other criminal justice partners to ensure that DNA evidence is available for post-conviction testing in appropriate cases.

9. Conduct of Police and Counsel

Official misconduct, which encompasses a broad range of conduct by various criminal justice participants, ranging from abusive investigative procedures that can produce false evidence, to committing or procuring perjury, to concealing exculpatory evidence, has also been cited as among the factors that can contribute to a wrongful conviction.Footnote 45 Regarding Crown conduct, the research suggests the most common transgression is the failure to disclose exculpatory evidence, either because the police did not provide prosecutors with the information, or because prosecutors were unaware that they had such information in the file or intentionally withheld it.Footnote 46

The conduct of defence counsel, which can include conduct that may be perceived in retrospect, to be ineffective, erroneous or missteps, has also been identified as relevant in some wrongful conviction cases in the US and Canada.Footnote 47 In R v GDB,Footnote 48 the Supreme Court of Canada held that the right to effective assistance of counsel is a principle of fundamental justice; however this right will be seen to be violated in law only if the conduct is unreasonable and incompetent and results in a miscarriage of justice. If Crown counsel develops concerns in a particular case that an accused is not being effectively represented, Crown counsel should consult his or her CFP or the CFP delegate to discuss the appropriate course of action.

10. Conclusion

Like other key criminal justice system participants, Crown counsel should become familiar with the factors that have been widely recognized as contributing factors in wrongful conviction cases, and keep abreast of the relevant jurisprudence and the best practices that have been associated with their prevention. In addition, training in relation to the prevention of wrongful convictions should be provided to federal prosecutors.Footnote 49 Indeed, the education of criminal justice system participants has been identified as a key aspect of the prevention of wrongful convictions.Footnote 50

When a particular file raises concerns, Crown counsel should consult experts, colleagues and superiors.Footnote 51

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