Over the past century, a significant number of studies on wrongful convictions and their causes have been undertaken. These studies were carried out in a wide variety of circumstances, with differing driving forces behind them. Some were privately commissioned; others were mandated by government. Some focused on a single case; others examined a group of unconnected cases. Many were done by scholars employed in universities, although a number were prepared by sitting or retired members of the judiciary.

These studies were also carried out in distinctly diverse legal, political and social environments in Canada, the United States, Britain, Australia and New Zealand. Therefore, some caution must be exercised before automatically assuming their conclusions are applicable to Canada. In the United States, for example, there is the overlay of the death penalty and the issue of race that is not present in Canada. As well, many American prosecutors are elected and there is not the same legal aid system as in Canada to ensure adequate representation of those facing the most serious of charges.

Still, as Bruce MacFarlane notes, despite the diversity of the studies, the patterns and trends that emerge from them are “both chilling and disconcerting.” He also concludes that despite a slow start in the recognition that a problem even exists, Anglo-based criminal justice systems, confronted with the power of scientific developments such as DNA, are now having to grapple with the stark reality, and not merely a belief, that wrongful convictions have occurred on a significant scale.

The following is an edited version of MacFarlane’s review of the international literature on wrongful convictions.

a) American Prison Congress Review (1912)

The earliest attempt to identify cases in which innocent persons were executed was conducted in 1912 by the American Prison Congress.[2] The mandate of the Congress was to “carefully investigate every reported case of unjust conviction and try to discover if the death penalty has ever been inflicted upon an unjust man.”[3] After a year of review, it concluded that no such cases existed.

To describe this review as a “study” is a bit charitable; and it was certainly not analytical in nature. The methodology simply involved sending a letter of enquiry to the warden in each prison in Canada and the United States, asking whether he had personal knowledge of any wrongful executions. The Congress did not report the response rate, but all responses received were in the negative.[4] The sole exception was the response from the warden at Fort Leavenworth, Kansas. He advised that “one or two (persons)… may, in my opinion, have been executed wrongfully.”[5]

This review lent support to the prevailing view at that time: miscarriages of justice rarely occur (at least in cases involving the death penalty). Where they do occur, they are remedied through normal judicial or executive procedures before the execution actually takes place.[6]

b) U.S. State Department Document (1912)

In 1912, Edwin M. Borchard, then a young Law Librarian of Congress, wrote an article entitled “State Indemnity for Errors of Criminal Justice.” Accompanied by an editorial preface by John H. Wigmore, then Dean of the Northwestern University School of Law, Borchard’s article was published by the United States Government and forms a permanent Senate document in the United States.[7]

In his introductory editorial, Wigmore asserts: [8]

The State is apt to be indifferent and heartless when its own wrongdoings and blunders are to be redressed. The reason lies partly in the difficulties of providing proper machinery and partly in the principle that individual sacrifices must often be borne for the public good. Nevertheless, one glaring instance of such heartlessness, not excusable on any grounds, is the State’s failure to make compensation to those who have been erroneously condemned for crime.

Having subjected the citizen to meritless allegations, Wigmore felt that the State should at least try to compensate for the wrong done:[9]

To deprive a man of liberty, put him to heavy expense in defending himself and to cut off his power to earn a living, perhaps also to exact a money fine – these are sacrifices which the State imposes on him for the public purpose of punishing crime. And when it is found that he incurred these sacrifices through no demerit of his own, that he was innocent, then should not the State at least compensate him, so far as money can do so?

Borchard’s commentary followed Wigmore’s impassioned plea. It was fueled by the case of Andrew Toth, who had recently been convicted of murder in Pennsylvania and sentenced to life imprisonment. After having served 20 years in jail, he was found innocent of the crime. There was no law at the time providing for compensation; however, philanthropist Andrew Carnegie pensioned him at $40 per month. In contrast, Adolph Beck, who had been exonerated of a crime for which he had spent seven years in prison, had been granted an ex gratia payment of five thousand pounds by the British Parliament.[10] On this state of affairs, Borchard said: [11]

In an age when social justice is the watchword of legislative reform, it is strange that society, at least in this country, utterly disregards the plight of the innocent victim of unjust conviction or detention in criminal cases. No attempt whatever seems to have been made in the United States to indemnify these unfortunate victims of mistakes in the administration of the criminal law, although cases of shocking injustice are of not infrequent occurrence.

In his article, Borchard described in considerable detail the enabling statutes throughout Europe, the practice that had developed, as well as the theoretical framework underlying compensation to those who had been wrongfully convicted. He concluded that while the principle had been clearly recognized, remedies were, in practice, only granted within the narrowest limits of the law. He added: “…the procedure is generally very complicated; in fact so complicated that it is hard to understand how the poor acquitted individual thrown out in the world can ever find the means to prosecute his claim.” [12]

c) Borchard Study (1932)

The first systematic research on miscarriages of justice was done by Borchard some 20 years later as a professor of law at Yale University. His classic 1932 work Convicting the Innocent[13] identified a total of 65 American and British cases in which innocent defendants had been convicted of felonies - 29 for murder, 23 for robbery and like offences, and 13 for lesser offences such as forgery, assault, attempted bribery and prostitution.

Geographically, his study cut across 26 different states, as well as the District of Columbia and England. In the cases chosen for inclusion, innocence was established in several ways: where the allegedly murdered person turned up alive; by the subsequent conviction of the real culprit; or by the discovery of new evidence which demonstrated, through a new trial, or to the satisfaction of a state governor or the president of the United States, that the wrong person had been convicted.[14]

Borchard found the principal causes of wrongful conviction were: mistaken identification; circumstantial evidence leading to erroneous inferences; perjury; or some combination of these factors.

More importantly, Borchard also described several environmental factors that allowed wrongful convictions to occur. The first involved public pressure to solve horrific crimes:[15]

…it is common knowledge that the prosecuting technique in the United States is to regard a conviction as a personal victory calculated to enhance the prestige of the prosecutor. Except in the few cases where evidence is consciously suppressed or manufactured, bad faith is not necessarily attributable to the police or prosecution; it is the environment in which they live, with an undiscriminating public clamor for them to stamp out crime and make short shrift of suspects, which often serves to induce them to pin a crime upon a person accused.

Borchard framed the issue in these terms:[16]

Public opinion is often as much to blame as the prosecutor or other circumstances for miscarriages of justice. Criminal trials take place under conditions with respect to which public interest and passions are easily aroused. In fourteen of the cases in this collection in which the frightful mistake committed might have been avoidable, public opinion was excited by the crime and moved by revenge to demand its sacrifice, a demand to which prosecutors and juries are not impervious. This can by no means be deemed an argument for the abolition of the jury, for judges alone might be equally susceptible to community opinion. But it is a fact not to be overlooked.

Borchard concluded that two further environmental factors tend to foster wrongful convictions. The first was evidence in court of a previous criminal conviction, which he said was “often fatal to an accused person.”[17] Second, Borchard concluded that the decision by an accused to exercise his right to remain silent often left a sour taste in the mouth of a jury:[18]

Refusal to take the stand – under circumstances where an explanation from the accused is naturally expected – even if it cannot be commented upon by judge or prosecutor, inevitably affects the jury unfavorably; but in addition, the accused’s known privilege of refusing to testify influences the police to exact “confessions” which, whether true or not, stigmatize the system of obtaining them as a public disgrace.

Borchard’s work is important for several reasons. He was the first to approach the subject in a systematic, analytical way. His conclusion that eyewitness misidentification is the primary reason for wrongful conviction has been confirmed in virtually every study since then. But there is one thing that he left as an enduring legacy: the notion that “circumstances” or “environmental factors” can serve to foster a wrongful conviction. There can be no doubt that certain environmental factors can serve to nurture a wrongful conviction.

d) Franks’ Study (1957)

Twenty-five years passed before any further analytical studies of significance emerged. In 1957, Jerome Frank, a judge of the U.S. Circuit Court of Appeals, published a book entitled Not Guilty, in collaboration with his daughter Barbara Frank and Harold M. Hoffman, a lawyer from New York.[19] The book traces 36 cases of wrongful conviction, and points to several systemic causes: mistaken testimony, especially by eyewitnesses; defective understanding of the evidence by jurors; an adversarial process that allows a fight mentality to emphasize strategies and success rather than the discovery of the truth; and a meager disclosure process that stacks the cards against the defendant from the outset.

The Franks spent considerably more time than Borchard analyzing the underlying causes of wrongful conviction. They were struck by the human nature of the process, noting that the weaknesses of those involved can, in many cases, affect the outcome.

Judge Frank argued that when an honest witness testifies to a fact, he represents three things under oath: that he accurately saw the event; that now, in the courtroom, he accurately remembers what he encountered; and that he is now accurately reporting his memory. Into each of these three elements, Judge Frank contended, error can enter, leading to mistaken testimony.[20] Quoting judicial and psychological authority of the day, Judge Frank added: “The great body of honest testimony is subjectively accurate but objectively false…observation is a complex affair; it is mingled with inferences, judgments (and) interpretations.”[21]

“What is lost from memory,” Judge Frank concluded, “is often replaced by products of the imagination,” sometimes referred to as “creative forgettery” or “imaginative memory.” This psychological phenomenon allows a witness to retouch the details, and unconsciously fill in memory gaps. Powerfully, Judge Frank argued that “witnesses who are perfectly honest are in danger of turning inferences into recollections.”[22]

The unconscious prejudice of otherwise honest witnesses may influence memory subtly yet significantly. Judge Frank gave an illustration:[23]

Other kinds of unconscious prejudice may perniciously influence memory: You see a fight between the police and union pickets. Your original impression was confused. If you are an ardent union sympathizer, you may later remember with clarity that the police brutally assaulted the pickets. “Honest” bias… may “be the deciding factor in filling in the gaps of memory.”

His own analysis, psychological views at the time, as well as judicial conclusions throughout the United States in a wide variety of cases, led Judge Frank to view uncorroborated testimony with great caution:[24]

The courts, then, agree with the psychologists about the treachery of memory. They agree that memory is the weakest element in testimony; that, because of the numerous unknown factors that affect it, a witness’ memory is often not trustworthy as a proof of any fact in a trial.

e) Du Cann Study (1960)

In 1960, C.G.L. Du Cann, a British barrister, published the book Miscarriages of Justice.[25] Intended for the general reader as well as members of the legal profession, his book was revolutionary and quite flamboyant. As he put it in the preface: “Here is this book: A sacrilegious and blasphemous brawler in that holy of holies, the Temple of Justice.”[26] Still, the book is regularly cited.

Using nine English cases of actual or apparent wrongful convictions as a basis for his comments, Du Cann advocated fundamental changes to criminal law, procedure and the rules of evidence. English criminal law, he said, was both uncertain and overly rigid. On the issue of common law precedents, Du Cann bluntly argued that “the dead hand rules us.”[27] He advocated the enactment of a criminal code that would provide a principled approach that was measured in application, and certain in response.

Du Cann argued forcibly that our criminal procedure needs a “roots and branch” reform, not just pruning: [28]

What seems harmless and picturesque in our courts to the unreflecting mind is harmful indeed by giving the falsity and a sense of unreality to the truth and justice for the sake of which alone the courts exist. Theatrical costume, tawdry play-acting, lying rhetoric, bombastic and blasphemous oaths should go. The form of trial might well be rather inquisitorial than accusatorial and real expression given to the idea that the accused is innocent until the court has convicted him.

Traditional rules of evidence came under particularly vicious attack. He said:[29]

Suppression of truth in courts professing to seek “the truth, the whole truth and nothing but the truth” should not be tolerated even in the fancied or real interest of the prisoner. For instance, modern juries under careful judicial directions are sufficiently educated and sophisticated to understand that a man may be an habitual thief and yet have not committed the present theft alleged, and to be on their guard against prejudice arising from this.

Challenging conventional practices such as the single-judge system of criminal justice, evidence taken under an oath, reliance on the adversarial rather than the inquisitorial system, Du Cann summarized his principal thesis in the following passage:[30]

And the moral is that miscarriages of justice may well take place in the courts as they are today. The deliberately cultivated atmosphere of pretense and unreality and theatricality by costume and speech does not encourage truth. Nor does the outmoded oath and the tolerance of perjury. A trial procedure exists which does not seek truth so much as the hunting down of the quarry – which is accusatory rather than inquisitory, and to which cling out-moded unfairnesses between prosecution and defence, as well as unequal advocacy which may tip the scales of justice to the wrong side, the rules of which remain unfair as between prosecution and defence in some important respects; substantive law very often uncertain and unintelligible or unnecessarily complex and confusing; the triumph of mere precedence over right reason and the unrealities of the past over the present; the sentence gamble dependent upon single-judge idiosyncrasy; and the obstinate refusal to modernise court machinery: – these are a few of the characteristics of our British methods which may be confidently expected to militate against justice.

f) Radin Study (1964)

Crime analyst Edward Radin published The Innocents[31] in 1964. Focusing on 80 new cases of wrongful conviction, Radin’s conclusions about the causes of wrongful conviction echoed those of his predecessors: police-coerced confessions; single eyewitness misidentification; inadequate disclosure by the prosecution; and inadequate resources to defend difficult cases.

He raised two further points that had received only scant attention before but are critical factors for consideration.

First, Radin deplored the “game theory” of criminal cases, under which the prosecutor “view(s) a trial as a kind of game…they are so busy planning how to outwit, outsmart and outmaneuver an opponent that they forget that justice is the sole purpose of the criminal trial.”[32]

Second, Radin urged the legal profession to closely examine the circumstances surrounding a wrongful conviction, to learn what occurred and to take steps to prevent future occurrences. The conviction of an innocent person should, he argued, “ring an alarm bell” within the broad legal community.[33]

g) Brandon and Davies Study (1973)

Class distinctions emerged as a critical factor in a British study published in 1973 by Ruth Brandon and Christie Davies.[34] Discussing the profile of the person most commonly imprisoned wrongly, the authors said: [35]

On the whole, they seemed to be a normal cross-section of the people who normally get sent to jail. Most of them have previous records of committing the kind of crime of which, this time, they were wrongfully convicted. Most of them did unskilled work. Many were unemployed or only did casual jobs. Very few were drawn from the middle class or from the respectable working class.

Building on the work done by Borchard, Judge Frank and Du Cann, Brandon and Davies reviewed 70 cases of acknowledged wrongful imprisonment[36] and concluded that recurring themes were emerging in Anglo-based criminal justice systems:[37]

Patterns which emerged frequently in both groups as causes of imprisonment were: unsatisfactory identification, particularly by confrontation between the accused and the witness; confessions made by the feeble-minded and the inadequate; evidence favorable to the defence withheld by the prosecution; certain joint trials; perjury, especially in cases involving sexual or quasi-sexual offences; badly conducted defence; criminals as witnesses.

Reform proposals put forward by the authors were, at the same time, progressive and heretical in nature: the prosecution “should be required to disclose any evidence it may possess which is favourable to the defence, whether or not it is proposing to use it during the trial.”[38] More radically, however, the authors contended that the defence should be required to give some details concerning the case it intended to present, well beyond its present common law obligation to disclose alibi evidence.[39]

h) The 1980s: Royal Commissions in Australia and New Zealand

It is apparent that the analyses of wrongful convictions until the 1970s were, for the most part, undertaken by concerned individuals. Some of these analyses were scholarly in nature; others were not, and seem a bit sensational – perhaps intended for a mass audience rather than as an instrument of reform. The prevailing public view, however, continued to be: Yes, there are occasional errors, but they are simply aberrations in an otherwise strong and flawless legal system.

As the 1980s approached, the landscape shifted in two ways. First, it became abundantly clear that wrongful convictions were occurring in virtually all Anglo-based criminal justice systems. Second, serious questions were being raised about whether some not-so-subtle systemic practices were contributing significantly to the problem.

In Australia, the Chamberlain Case[40] (sometimes known as the Dingo Baby Case) gripped the nation for two decades.[41]

Alice Lynne Chamberlain was convicted in 1982 of the murder of her nine-week old daughter, Azaria. Her husband, Michael Leigh Chamberlain, was convicted of being an accessory after the fact. The Crown’s case lacked any evidence of motive or confession, and neither a murder weapon nor the body of the child was found. Mrs. Chamberlain contended that a dingo (a wild dog) had run off with the child. After she spent three and a half years in prison, a Royal Commission into the case concluded “that there are serious doubts and questions as to the Chamberlains’ guilt and as to the evidence in the trial leading to their convictions.”[42] The Commissioner concluded that there was absolutely no evidence of human involvement in the child’s disappearance and evident death.

Shortly afterward, the Northern Territorial Government pardoned Mrs. Chamberlain and her husband. They were awarded over $1 million in compensation. Scientific evidence, in particular blood examinations, which had been critical to the Crown’s case at trial, had been fully discredited during the Royal Commission. As well, it was concluded that a key forensic witness had taken on the role as a protagonist rather than a “dispassionate provider of scientific information.”[43]

In the wake of the Royal Commission Report, Judy Bourke argued in the Australian Bar Review that scientific evidence is frequently misused in criminal trials because it often is unreliable, yet shielded from scrutiny by an ever-present aura of scientific certainty.[44] In the end, it was clear in the Chamberlain case that questionable police conduct, coupled with unreliable forensic evidence, had been woven together to support a mistaken prosecution theory that a tragic death was actually a murder.

Scientific evidence which the Crown had successfully relied on in securing convictions was subsequently found unreliable in a number of other Australian prosecutions during the 1980s. In the case of Edward Charles Splatt (The Shannon Report), the Crown’s case relied on the cumulative effect of the similarities of “trace materials”[45] between the crime scene and Splatt’s house. All of this evidence was later found to be unreliable.[46]

In the murder conviction of Douglas Harry Rendell, a subsequent inquiry (The Hunt Report) found critical blood tests unreliable, and recommended a pardon.[47] Similar results were reached in the case of Gidley in New South Wales, with blood tests dating back to 1983, and Cannon, a 1991 case with degraded DNA samples.[48]

Curiously, legal analysts in Australia have suggested that eyewitness misidentification, a major cause of wrongful convictions in North America, has not emerged as a major cause in Australia. That noted, established North American patterns clearly emerged including: [49]

  1. police practices (over-zealousness, unprofessional conduct, incompetence);
  2. unreliable evidence (expert as an advocate or protagonist, weak circumstantial evidence);
  3. unreliable secondary sources (police informants, prison informants, etc.); and
  4. media and public pressure to convict.

New Zealand has not avoided the specter of wrongful convictions. In 1970, Arthur Allen Thomas was charged with the murder of two people. After a series of trials, appeals, retrials and petitions to the Governor General, Thomas remained convicted.[50] Concerned forensic scientists, who had testified at trial for the defence, published two books questioning the validity of certain key evidence,[51] and a 1978 book Beyond Reasonable Doubt? by British author David Yallop prompted the Prime Minister of New Zealand to appoint an eminent counsel to review the case.[52] As a result, Thomas received a free pardon. A Royal Commission subsequently was established to investigate the circumstances surrounding his conviction.

The chair of the Royal Commission, the Honourable R.L. Taylor, a former Justice of the Supreme Court of New South Wales, noted that the “case had always attracted widespread publicity and public concern.”[53] In a damning report, Taylor concluded: a key exhibit at trial had been fabricated and planted at the crime scene by two of the investigating police officers; another exhibit had deliberately been switched by police; police had engaged in an intentional cover up of their activities; and a scientific expert witness had displayed “a disturbing lack of neutrality” during and after testifying.[54] The “high-handed and oppressive actions of those responsible for his convictions” prompted Taylor to recommend an ex gratia compensation payment of $1 million[55] – advice that the New Zealand government followed with little hesitation.

The Australian and New Zealand reports during the 1980s are significant for two reasons. No longer was forensic evidence inviolable. The scientist in the white lab coat could be wrong – either through inadvertence, incompetence or outright fraud and perjury. More significantly, their experience illustrates that the cases in which the public are most concerned (brutal murders and the killing of young children, for instance) and where the stakes are the highest, are precisely the types of cases where those responsible for bringing a perpetrator to justice resort to tactics that ultimately undermine the entire case for the prosecution.

i) IRA Bombings in Britain

On January 30, 1972, “Bloody Sunday,” British paratroopers killed 13 unarmed Catholics during a peaceful civil rights march in Londonderry. On July 21, 1972, the IRA rocked Belfast with 22 bombs in 75 minutes, leaving nine dead and 130 injured. A politically fueled bombing campaign ensued during the next decade, with 3,637 lives lost in what the Irish now refer to as “The Troubles.”[56]

This was not, however, just an issue of statistics. Most of those killed were civilians: mothers, fathers, shoppers, pub-goers and children. The public was outraged and frightened. In many minds, the IRA had become “Public Enemy Number One.” It was from this pool of citizens that police investigators would be selected to investigate IRA bombings over the next several years. And it was from precisely this same pool that judges and jurors would hear cases that, regrettably, led to miscarriages of justice in Britain during the 1980s.

Guildford Four

Their collective name is well known: The Guildford Four (Paul Hill, Gerard Conlon, Patrick Armstrong and Carole Richardson) spent 14 years in prison before their convictions for two IRA bomb explosions in Guildford on October 5, 1974, were quashed by the Court of Appeal in 1989.[57] Hill, only 21 when he was arrested, spent more than 1,600 days in solitary confinement.

Gerry Conlon, a 20-year-old, happy-go-lucky, hard drinking petty thief who liked to chase girls, said this of the “confessions” he had signed during the police investigation:[58]

When I signed them, I believed I would later be able to retract them. I believed they could never be shown to hold water. I didn’t realize I was signing away my liberty for the next 15 years.

He added:[59]

I think in the end it boiled down to the fact that the lawyers were terrified of dealing with terrorist offences, uncertain about the new Act, ignorant about the IRA and how it operates and overwhelmed by the blind determination of the police to get us convicted at any cost.

In 2000, Prime Minister Tony Blair apologized to the Guildford Four for their wrongful conviction. In a letter, Mr. Blair acknowledged the “miscarriage of justice” which they suffered as a result of their wrongful convictions. The apology, personally signed by the Prime Minister, was sent by him to Paul Hill’s wife, Courtney Kennedy Hill, the daughter of the assassinated American Attorney General Robert Kennedy and niece of the late John F. Kennedy. The Prime Minister said: “I believe that it is an indictment of our system of justice and a matter for the greatest regret when anyone suffers punishment as a result of a miscarriage of justice. There were miscarriages of justice in your husband’s case, and the cases of those convicted with him. I am very sorry indeed that this should have happened.”[60]

Birmingham Six

Five weeks after the bombing at Guildford, two further explosions occurred at pubs in Birmingham in the British Midlands.[61] Twenty-one people were killed, and 162 injured. One week earlier, an active member of the IRA, James McDade, had been killed when a bomb he was in the process of planting at a telephone exchange exploded prematurely.[62] The bombs were of similar construction to all of those that exploded during the 1974 IRA campaign.[63]

Six Irish Catholic men were charged with 21 counts of murder, convicted by a jury, and spent 16 years in jail before being freed by the Court of Appeal in 1991.[64] On behalf of the court, Lloyd, L.J. noted that on the basis of the evidence led at trial, the case was convincing. Nonetheless, two parts of the evidence were suspect: scientific evidence concerning bomb traces, and the police interviews. The forensic evidence was in doubt, the court concluded, and several of the police investigators “were at least guilty of deceiving the court.”[65]

The Birmingham Six, as they became known, had been vilified for years as Britain’s biggest mass murderers. When they emerged onto the steps of the Old Bailey in 1991, after the Court of Appeal had quashed their convictions, psychologists said they were in a condition similar to those persons who have been at war.[66]

McGuire Seven

Science continued to come under the microscope in further IRA prosecutions that resulted in wrongful convictions. The McGuire Seven, a family led by Annie McGuire, were imprisoned in 1976 for possessing explosives.[67] In the wake of the release of the Guildford Four in October, 1989 and calls for the review for the Birmingham Six, a report by former appeals judge John May persuaded the Home Secretary that there had been a miscarriage of justice in the McGuire Case. In July 1990, he referred the matter to the Court of Appeals; all seven of the convictions were overturned in June 1991.[68]

The McGuire Seven had been accused of running an IRA bomb factory in North London in the mid-1970s. Unlike the Guildford Four trial, scientific evidence played a pivotal role in the trial of the McGuire Seven. Critical Crown evidence included traces of nitroglycerine on the accused’s hands and gloves. The Court of Appeal concluded that they may have been implicated through innocently touching a contaminated towel. Lord Justice McCowan said:[69]

The evidence does not enable us to conclude who the person or persons were who so contaminated the towel or the gloves. On the ground that the possibility of innocent contamination cannot be excluded, and on this ground alone, we think the convictions of the appellants are unsafe and unsatisfactory.

Others, however, thought differently. Brian Ford, a leading scientist, openly questioned whether there had been a closing of ranks, and expressed concern that the Crown scientists had been operating a state-run service to get convictions, rather than offering independent scientific expertise.[70] He appears to have been right, and the IRA saga got even worse.

Judith Ward

Judith Ward was convicted in 1974 of 12 counts of murder and three charges of causing an explosion.[71] In three separate incidents, bomb explosions, thought to be the work of the IRA, had caused horrific damage and loss of life. The case for the Crown rested on confessions Ward made to the police and expert evidence from government scientists that traces of nitroglycerine had been found on her. She was sentenced to life in prison, and appealed neither conviction nor sentence.

Seventeen years later, the Home Secretary referred her case to the Court of Appeal for a reassessment. It was said that she suffered from a mental disorder that explained her statements to police. It was also contended that both the police and prosecution had failed to disclose evidence that would have affected the course of the trial. The most serious contention concerned the scientific evidence. It was alleged that supposedly neutral scientists had deliberately supported the prosecution efforts to convict Ward and had suppressed evidence favorable to the defence. In the end, however, the conclusions of the Court of Appeal were even more serious that that.

Glidewell, J. on behalf of the unanimous court, concluded that three senior government scientists called as Crown witnesses at trial had deliberately misled the court; that they had done so in concert; and that they had taken “the law into their own hands, and concealed from the prosecution, the defence and the court, matters which might have changed the course of the trial.”[72] His assessment of the conduct of these three scientists was searing:[73]

For the future it is important to consider why scientists acted as they did. For lawyers, jurors and judges, a forensic scientist conjures up the image of a man in a white coat working in a laboratory, approaching his task with cold neutrality, and dedicated only to the pursuit of scientific truth. It is a sombre thought that the reality is sometimes different. Forensic scientists may become partisan. The very fact that the police seek their assistance may create a relationship between the police and the forensic scientists. And the adversarial character of the proceedings tends to promote this process. Forensic scientists employed by the government may come to see their function as helping the police. They may lose their objectivity. That is what must have happened in this case.

Appellate courts generally confine their conclusions to the facts of the case and rarely outline the lessons learned from the evidence. But that is precisely what the Court of Appeal did in this case. Asking what lessons can be learned from this miscarriage of justice, Justice Glidewell noted the importance of balancing the need to reduce the risk of conviction of the innocent with the public interest in avoiding a multiplicity of rules that merely impede effective law enforcement. In his view, there were two lessons learned.[74] The first centred on the fact that the expert witnesses had become partisan:[75]

First, we have identified the cause of the injustice done to Miss Ward on the scientific side of the case as stemming from the fact that three senior forensic scientists at the Royal Armaments Research and Development Establishment (RARDE) regarded their task as being to help the police. They became partisan. It is the clear duty of government forensic scientists to assist in a neutral and impartial way in criminal investigations. They must act in the cause of justice…

Secondly, we believe that the surest way of preventing the misuse of scientific evidence is by ensuring that there is a proper understanding of the nature and scope of the prosecution’s duty of disclosure.

Roger Cook, an English forensic scientist who later testified before the Morin Inquiry, noted that this case caused “tidal waves” in the international forensic community. [76]


The legacy of the IRA bombing cases was three-fold. First, the cases demonstrate that the “hydraulic pressure” of public opinion[77] is capable of creating an atmosphere in which state authorities seek to convict someone despite the existence of ambiguous or contradictory evidence. Second, scientists working in government-operated laboratories may tend to feel “aligned”[78] with the prosecution, resulting in a perception that their function is to support the theory of the police[79] rather than to provide an impartial, scientifically-based analysis. This, in turn, raises issues concerning the physical location and reporting relationship of government or police forensic laboratories.

Finally, scientists relied upon by the Crown have an obligation to disclose to the prosecution evidence of any tests carried out which tend to cast doubt on the opinion proposed to be tendered in evidence; and the prosecution bears a parallel and continuing obligation to disclose those facts to the defence – irrespective of whether the defence has made a request for such disclosure.

j) United States: Wrongful Executions, Not Just Wrongful Convictions

Debate about whether wrongful convictions have occurred in the United States of America has been linked extricably with the imposition of the death penalty in that country.[80] Borchard made the point in 1932.[81] Two scholars fueled the debate in the 1980s,[82] and the controversy that has raged since then has caused one state to direct a moratorium on the imposition of the death penalty, and the governor of that state to pardon four inmates and commute the sentence of everyone else on death row.[83]

In 1987, Professors Hugo Bedau, of Tufts University, and Michael Radelet, of the University of Florida, published a study of 350 cases in Miscarriages of Justice in Potentially Capital Cases.[84] These cases, heard by courts in the United States between 1900 and 1986, concerned 139 persons subsequently proven to be innocent. All had been sentenced to death and a number came within hours or days of being executed, before executive (or judicial) action saved them.

Continuing in the tradition pioneered by Borchard, these researchers concerned themselves with “wrong-person mistakes” – the conviction or execution of the factually innocent.[85] They were not concerned with the erroneous conviction of those who are legally innocent, such as those killing in self-defence, or situations where the case failed because the evidence demonstrated a violation of the accused’s constitutional rights.[86]

Bedau and Radelet concluded that there were four main causes of miscarriages of justice in death penalty cases:[87] first, and most importantly, errors by witnesses (such as mistaken eyewitness identification; witness perjury; unreliable or erroneous prosecution testimony); second, police error (such as coerced confessions and overzealous or negligent police work); third, prosecution error (such as suppressing exculpatory evidence); and, finally, other errors such as misleading circumstantial evidence, inadequate consideration of alibi evidence, or the consequences flowing from an outraged community that demands conviction.

The close link between the controversy over the death penalty and the emergence of wrongful convictions in the United States became apparent in the conclusions reached by Bedau and Radelet. They conceded that there was no evidence that ending the death penalty would reduce the likelihood of wrongful convictions. They maintained, however, that “no evidence is needed to support the claim that complete abolition of the death penalty would eliminate the worst of the possible consequences that accrue from wrongful convictions in what are now capital cases.”[88]

Since then, the death penalty debate has continued to be dominated by the fear that the innocent will be sentenced to die.[89] Nine years after their seminal work on the subject, Radelet and Bedau republished their views,[90] this time observing that in the United States, the risk of executing the innocent is “inevitable.”[91] The issue of race was also raised:[92]

Blacks today make up about 40% of those on death-row in America, and also approximately 40% of the cases in which people are released from death-row because of doubts about their guilt.

Parallel conclusions about the nexus between the death penalty and wrongful convictions in the United States have since been reached by a number of scholars,[93] practitioners,[94] members of the judiciary,[95] and the media.[96]

In 2000, Illinois Governor George Ryan declared a moratorium on executions in that state. The moratorium was prompted by serious questions about the operation of the capital punishment system in Illinois, which were highlighted most significantly by the release of former death-row inmate Arthur Porter after coming within 48 hours of his scheduled execution date. Porter was released from death-row following an investigation by journalism students who obtained a confession from the real murderer in the case. The moratorium subsequently sparked a nation-wide debate on the death penalty.

In March 2000, Ryan appointed a Commission to advise him, and on April 15, 2002, the commissioners published their report. It reviewed and relied upon a wide range of information, studies, and previous inquiries, including the Morin and Sophonow Inquiries from Canada.[97]

All members of the Commission believed, with the advantage of hindsight, “that the death penalty had been applied too often in Illinois since it was re-established in 1977.”[98] A narrow majority of the 17-person Commission[99] favored abolition of the death penalty in the state; overall, however, the main conclusion of the Commission was that if capital punishment was to be retained, a number of significant reforms were indispensable to a fair death penalty scheme in the state.[100]

The lengthy report makes 85 specific recommendations for reforms, including recommendations to require video-taping of interrogations in capital cases; to review police procedures for obtaining eyewitness identifications; to reduce the number of circumstances under which the death penalty may be imposed; to increase the funding and training of lawyers and judges involved in capital cases; to intensify the scrutiny of the testimony of in-custody informants; and to implement new procedures for review of capital sentences.

Drawing heavily from the Morin and Sophonow Inquiries, and in some instances adopting recommendations from those reports verbatim, the Commission gave particular emphasis to the critical role of defence counsel:[101]

The Commission’s analysis of the more than 250 cases in which the death penalty has been imposed in the years since 1977 revealed that some 21% of the reversals were the result of deficiencies in the conduct of defence counsel. Roughly 26% of the cases were reversed based upon conduct by a prosecutor that the Supreme Court found to be improper and reversible. Together, these two types of errors account for a substantial number of the cases reversed on appeal.

“The provision of qualified counsel,” the Commission concluded, “is perhaps the most important safeguard against the wrongful conviction, sentencing and execution of capital defendants.”[102]

Governor Ryan’s response to the Commission’s report caught many by surprise. Nine months following receipt of the report, and just three days before the end of his term as Governor,[103] Ryan pardoned four inmates and, the following day, commuted the sentences of all 167 remaining death-row inmates in the state.[104] In an hour-long speech, Ryan quoted Abraham Lincoln, Supreme Court Justices Stewart and Blackmun, and expressed frustration over his inability to gain the support of the legislature in fundamental justice reforms:[105]

Three times I proposed reforming the system with a package that would restrict the use of jailhouse snitches, create a state-wide panel to determine death eligible cases, and reduce the number of crimes eligible for death. These reforms would not have created a perfect system, but they would have dramatically reduced the chance for error in the administration of the ultimate penalty.

The Governor has the constitutional role in our state of acting in the interest of justice and fairness. Our state constitution provides broad power to the Governor to issue reprieves, pardons and commutations. Our Supreme Court has reminded inmates petitioning them that the last resort for relief is the governor. At times the executive clemency power has perhaps been a crutch for courts to avoid making the kind of major change that I believe our system needs.

Our systemic case-by-case review has found more cases of innocent men wrongfully sentenced to death-row. Because our three-year study has found only more questions about the fairness of the sentencing; because of the spectacular failure to reform the system; because we have seen justice delayed for countless death-row inmates with potentially meritorious claims; because the Illinois death penalty system is arbitrary and capricious – and therefore immoral – I no longer shall tinker with the machinery of death. I cannot say it as eloquently than Justice Blackmun. The legislature couldn’t reform it. Lawmakers won’t repeal it. But I will not stand for it. I must act.

Our capital system is haunted by the demon of error – error in determining guilt, and error in determining who among the guilty deserves to die. Because of all of these reasons today I am commuting the sentences of all death-row inmates… There have been many nights where my staff and I have been deprived of sleep in order to conduct our exhaustive review of the system. But I can tell you this: I will sleep well knowing I made the right decision.

The Innocence Project at the Benjamin N. Cardozo School of Law of Yeshiva University in New York was created by Barry C. Scheck and Peter J. Neufeld in 1992. It was set up as, and remains, a non-profit legal clinic. The Project only handles cases where post-conviction DNA testing of evidence can yield conclusive proof of innocence. As a clinic, students handle the case work while supervised by a team of attorneys and clinic staff. It has helped to organize The Innocence Network, a group of law schools, journalism schools, and public defender offices across the U.S., that assists inmates trying to prove their innocence.

To date, the Innocence Project reports 143 exonerations based on DNA testing. In their book Actual Innocence,[106] Scheck and Neufeld state that in the first 130 DNA exonerations, mistaken identification was the cause in 101 (78 per cent), false confessions in 35 (27 per cent) and jailhouse informants in 21 (16 per cent). The average length of incarceration was 10.45 years and the total time served by 136 exonerated defendants was 1,470 years. Six-one per cent of the exonerated defendants were Black, while 78 per cent of their victims were white. They note that the states with the most post-conviction DNA exonerations – Illinois (23) and New York (14) – were the first two states with statutes authorizing post conviction DNA testing for inmates.

Scheck and Neufeld state that with DNA testing, “a moment of rare enlightenment” is at hand:[107]

For generations, American lawyers and crusaders have fought to overturn the convictions of people they believed innocent. Until recently, they had to rely on witnesses to recant or for the real perpetrators to confess. In what seems like a flash, DNA tests performed during the last 15 years not only have freed 132 individuals but have exposed a system of law that has been far too complacent about its fairness and accuracy. What matters most is not how these people got out of jail but how they got into it.

The authors state that there are likely thousands of innocent people in prison who will likely never be freed because most crimes do not have biological evidence – blood, semen, hair, skin – which can be tested for DNA.[108]

“Our procedure,” wrote Justice Learned Hand in 1923, “has always been haunted by the ghost of the innocent man convicted. It is an unreal dream.” Today, those ghosts walk the land. But Hand’s unreal dream is costing little sleep. The innocent neither count nor are they counted. Every unit of government, from the smallest locality to the U.S. Justice Department, totes crimes, complaints, warrants, arrests, indictments, pleas, dispositions, trials, jury trials, judge trials, verdicts, sentences, paroles, appeals, opinions. An entire division of the federal government tracks the quantity of felonies. Many states have similar machinery. Statistics are kept by the gigabyte and the shelf-full.

Get not one number is assigned to represent the distinct matter of the innocent person. No one has the job of figuring out what went wrong, or who did wrong. No account is taken of the innocent person, wrongly convicted, ultimately exonerated. The moment has come to do so.