Chapter 9 - Crown Advocacy
Crown conduct can play a role in wrongful convictions in many ways. Failure to provide timely and complete disclosure, calling unreliable expert evidence, relying on jailhouse informers and demonstrating tunnel vision are all forms of conduct that have been proven to contribute to wrongful convictions.
Crown advocacy requires the exercise of careful judgment. Criminal trials are often very hard fought; in the words of Mr. Justice Moldaver they are "not a tea party."Footnote 451
But knowing the difference between forceful advocacy and improper advocacy is an essential attribute of Crown counsel.
Improper Crown advocacy during trial may render the process unfair, and can also lead to wrongful convictions. While the relationship between improper Crown advocacy and wrongful convictions may be less direct than, for example, withholding exculpatory evidence, it is important that prosecutors be conscious of improper advocacy as a contributing factor. This chapter highlights the nature of the concerns and makes recommendations for addressing the problem.
II. Recommendations by Commissions of Inquiry
The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken (2006)
This Report contains the most important statements on the role of Crown advocacy in cases of wrongful conviction. Former Chief Justice Lamer offered general guidance on the role of Crown counsel:
The role of a Crown Attorney requires not only professional skills and judgment but also courage. Often the working conditions include difficult time pressures and limited resources. It may be particularly difficult for less experienced Crown attorneys to exercise contrarian thinking. Experienced Crown attorneys, in leadership roles must foster critical thinking and independence in their younger counterparts. A Crown attorney, like a judge, must not only exercise good judgment but must also be willing to make unpopular decisions. Footnote 452
The Report suggested that "[t]he [Newfoundland and Labrador] Crown Policy Manual should provide clear guidelines as to the appropriate limits of Crown advocacy."Footnote 453 Justice Lamer's recommendation arose from his consideration of the Crown's closing address to the jury in the trial of Gregory Parsons. Justice Lamer found that the Crown's address was inflammatory, tending to demonize the accused.
Justice Lamer agreed with earlier recommendations made by Mr. Justice Fred Kaufman in the The Commission on Proceedings Involving Guy Paul Morin (hearafter referred to as the Morin Inquiry), who suggested that Crown counsel should receive training on the limits of Crown advocacy.Footnote 454
Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell
In this ReportFootnote 455, Justice Patrick LeSage was highly critical of the conduct of several Crown counsel but did not make any new recommendations of his own. Rather, he endorsed the views of Justice Lamer on the role of Crown counsel reproduced above.
III. Legal Developments and Commentary
The role of prosecutorial misconduct in wrongful convictions is well-established, but the specific contribution of advocacy has been much less studied. In this chapter, we are concerned with a specific type of misconduct: attempting to persuade a court of a person's guilt through improper means.
The contribution of improper advocacy to wrongful convictions is difficult to study. Unethical forms of advocacy, such as improper cross-examination or inflammatory jury addresses, are recognized as misconduct and denounced by appellate courts, whether or not they lead to the setting aside of a conviction.
In the United States, the Northern California Innocence Project has attempted to review the role of prosecutorial misconduct in wrongful convictions, the most comprehensive attempt to study the problem.Footnote 456 That study in turn refers to a 2010 study of 255 cases where DNA evidence exonerated a convicted person. Sixty-five of those cases were found to be cases where prosecutorial misconduct was alleged, 31were cases in which it was found to have occurred, and 12 were cases in which it was found to have been harmful.Footnote 457 Although the DNA exoneration study did not break down the types of misconduct involved, the Northern California Innocence Project's work suggested that improper arguments and examinations of witnesses were the most common type of prosecutorial misconduct.Footnote 458
Use of improper advocacy techniques such as inflammatory jury addresses may also be evidence of what is termed "noble cause corruption".Footnote 459 "Noble cause corruption" is "the end-justifies-the-means" thinking that is also symptomatic of tunnel vision. Resolute belief in the guilt of the accused, particularly in notorious crimes, may inspire use of tactics designed only to help ensure conviction.
Some prosecution agencies have addressed the wrongful conviction reports' concerns with Crown advocacy through policies. Newfoundland and Labrador responded to Justice Lamer's report with a policy on training and development, a policy aimed at fostering the type of culture Justice Lamer recommended.Footnote 460 The Public Prosecution Service of Canada's policy on the Prevention of Wrongful Conviction encourages mentoring of junior counsel on the appropriate limits of Crown advocacy.Footnote 461
Finally, it is important to recognize, as the Supreme Court of Canada has, that doing something about "the blight on our justice system"Footnote 462 that wrongful convictions constitute, requires addressing some Crown conduct that may increase this risk.Footnote 463
IV. Forms of Improper Crown Advocacy
As noted above, prosecutorial misconduct may take many forms. While any exercise of prosecutorial discretion may be considered as a form of Crown advocacy, this chapter is concerned with advocacy that attempts to persuade the court through improper means. The three most common areas of impropriety are jury addresses, examination of witnesses, and misleading (or otherwise dealing unfairly) with the court. In addition to potentially leading to wrongful convictions, these improprieties can lead to the ordering of new trials by appeal courts.
a) Jury Addresses
There are many types of improper jury addresses,Footnote 464 but the most troublesome are those that suggest that the prosecutor has lost professional detachment. Once the prosecutor demonstrates that conviction is what matters most, there is reason to suspect that the prosecutor may have lost the ability to critically assess the Crown's case. Oral advocacy should not be used to make up for the shortcomings of an investigation, as noted by former Chief Justice Lamer:
He was a highly skilled lawyer, very industrious and highly motivated. He applied these skills to compensating for inadequacies in the police case rather than confronting them. This is a common systemic danger in a Crown culture that does not recognize the importance of critically analyzing the results of a police investigation, particularly one that was fuelled by tunnel vision.Footnote 465
Prosecutors must not use rhetorical devices capable of distorting the fact-finding process.Footnote 466 Thus, the types of address that are most likely to distort include excessive appeals to emotion such as compassion for the victim, outrage over the crime or anger at the accused;Footnote 467 misstating the evidence;Footnote 468 giving opinions on subjects such as the accused's guilt;Footnote 469 undermining the accused's Charter rights, such as the presumption of innocenceFootnote 470 or the right to silence.Footnote 471
b) Treatment of Witnesses
Another common form of misconduct capable of having serious consequences for the fairness of trials is Crown counsel's treatment of witnesses. The most common type of impropriety occurs in cross-examination of the accused, though impropriety may also arise in examination of the Crown's own witnesses.
Improper forms of cross-examination, as with jury addresses, may involve subversion of the accused's Charter rights. Crown counsel may infringe the right to silence by suggesting the accused's version of events is a recent fabrication that ought to have been told at the time of arrest. The Supreme Court has suggested this line of cross-examination would render the right to silence a "snare and a delusion".Footnote 472 Crown counsel may also undercut other rights, such as the right to disclosure of the Crown's case, by suggesting the accused's story is tailored to fit the disclosure.Footnote 473
Crown counsel must also refrain from other forms of improper cross-examination. Many wrongful conviction cases involved accused who had committed other criminal offences or disreputable acts; however, cross-examination on the accused's bad character is carefully circumscribed.Footnote 474 There is no justification for abusive cross-examination,Footnote 475 or use of language designed to arouse the jury's emotions against the accused.Footnote 476
c) Dealings with the Court
Every counsel owes an overriding duty to be fair in their dealings with the court.Footnote 477 The best expression of the nature of this duty is found in the American Bar Association's Criminal Justice Standards for the Prosecution Function. Standard 3.1-4 is entitled The Prosecution's Heightened Duty of Candor":Footnote 478
- In light of the prosecutor's public responsibilities, broad authority and discretion, the prosecutor has a heightened duty of candor to the courts and in fulfilling other professional obligations. However, the prosecutor should be circumspect in publicly commenting on specific cases or aspects of the business of the office.
- The prosecutor should not make a statement of fact or law, or offer evidence, that the prosecutor does not reasonably believe to be true, to a court, lawyer, witness, or third party, except for lawfully authorized investigative purposes. In addition, while seeking to accommodate legitimate confidentiality, safety or security concerns, a prosecutor should correct a prosecutor's representation of material fact or law that the prosecutor reasonably believes is, or later learns was, false, and should disclose a material fact or facts when necessary to avoid assisting a fraudulent or criminal act or to avoid misleading a judge or factfinder.
- The prosecutor should disclose to a court legal authority in the controlling jurisdiction known to the prosecutor to be directly adverse to the prosecution's position and not disclosed by others.
These obligations are important in relation to avoiding wrongful convictions. For example, the statements in part b) concerning the correction of information provided to the court but subsequently discovered to be false implies a duty to take steps to rectify the situation. This may occur not only pre-trial, but post-trial as well.
V. Updated Recommendations
Prosecution services should take steps to ensure that improper Crown advocacy does not contribute to wrongful convictions. Adopting some or all of the following measures would assist not only in preventing wrongful convictions, but also in reducing the number of re-trials ordered because of prosecutorial misconduct.
Ensuring that prosecutors participate in training designed to reinforce ethical advocacy is an important obligation of a modern prosecutorial agency. Such training should not be limited to junior counsel; in fact, many of the most notable examples of prosecutorial misconduct were committed by senior counsel. Both the Lamer and Kaufman reports recommended that training on Crown advocacy be implemented to help protect against wrongful convictions. It is also common for law societies to require a certain number of hours of professional development every year, and some require a professionalism component.
Mentoring may be seen as a particular type of training, and is a venerable tradition in the legal profession. Ensuring that young lawyers, in particular, partner with a senior practitioner may be particularly important where a prosecutor without any significant background in criminal law starts employment.
3. Policy Manuals
All prosecution agencies in Canada should review their policies on a wide variety of matters dealing with the proper exercise of prosecutorial discretion. As members of law societies, prosecutors are bound to follow the ethical code of their law society,Footnote 479 but policy manuals are capable of reinforcing the ethical messages of these codes. Policies that give guidance on jury addresses, for example, can help avoid some of the most blatant forms of prosecutorial misconduct.
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