FPT HEADS OF PROSECUTIONS COMMITTEE
REPORT OF THE WORKING GROUP ON THE PREVENTION OF MISCARRIAGES OF JUSTICE
SUMMARY OF RECOMMENDATIONS
The following practices should be considered to assist in deterring tunnel vision:
- Crown policies on the role of the Crown should emphasize the quasi-judicial role of the prosecution and the danger of adopting the views and/or enthusiasm of others. Policies should also stress that Crowns should remain open to alternate theories put forward by defence counsel and other parties.
- All jurisdictions should consider adopting a “best practice,” where feasible, given geographic realities, of having a different Crown Attorney prosecute the case than the Crown Attorney who advised that there were grounds to lay the charge. Different considerations might apply with mega-cases.
- In jurisdictions without pre-charge screening, charges should be scrutinized by Crowns as soon as practicable.
- Second opinions and case review should be available in all areas.
- There should be internal checks and balances through supervision by senior staff in all areas with roles and accountabilities clearly defined and a lead Crown on a particular case clearly identified.
- Crown offices should encourage a workplace culture that does not discourage questions, consultations, and consideration of a defence perspective by Crown Attorneys.
- Crowns and police should respect their mutual independence, while fostering cooperation and early consultation to ensure their common goal of achieving justice.
- Regular training for Crowns and police on the dangers and prevention of tunnel vision should be implemented. Training for Crown Attorneys should include a component dealing with the role of the police, and training for police should include a component dealing with the role of the Crown.
Eyewitness Identification and Testimony
- The following are reasonable standards and practices that should be implemented and integrated by all police agencies:
- If possible, an officer who is independent of the investigation should be in charge of the lineup or photospread. This officer should not know who the suspect is – avoiding the possibility of inadvertent hints or reactions that could lead the witness before the identification takes place, or increase the witness’s degree of confidence afterward.
- The witness should be advised that the actual perpetrator may not be in the lineup or photospread, and therefore the witness should not feel that they must make an identification.
- The suspect should not stand out in the lineup or photospread as being different from the others, based on the eyewitness’ previous description of the perpetrator, or based on other factors that would draw extra attention to the suspect.
- All of the witness’s comments and statements made during the lineup or photospread viewing should be recorded verbatim, either in writing or if feasible and practical, by audio or videotaping.
- If the identification process occurs on police premises, reasonable steps should be taken to remove the witness on completion of the lineup to prevent any potential feedback by other officers involved in the investigation and cross contamination by contact with other witnesses.
- Show-ups should be used only in rare circumstances, such as when the suspect is apprehended near the crime scene shortly after the event.
- A photospread should be provided sequentially, and not as a package, thus preventing ‘relative judgments.’
- For prosecutors, the following practical suggestions should be considered:
- Assume the identity of the accused is always at issue unless the defence specifically admits it on the record. Timely preparation and a critical review of all of the available identification evidence, including the manner in which it was obtained, is required as it will affect the conduct and quality of the trial.
- Allow the witness a reasonable opportunity to review all previously given statements and confirm that the statements were accurate and a true reflection of their observations at the time. Carefully canvass the full range of the indicia of the identification, including any distinguishing features that augment this evidence. Remember that it is the collective impact of all of the evidence that will be considered in support of a conviction. Defects in one witness’s identification can be overcome by the consideration of other evidence.
- Never interview witnesses collectively. Never prompt or coach a witness by offering clues or hints about the identity of the accused in court. Do not condone or participate in a “show-up” lineup. Never show a witness an isolated photograph or image of an accused during the interview.
- When meeting with witnesses in serious cases, it is wise, if it is feasible and practical, to have a third party present to ensure there is no later disagreement about what took place at the meeting.
- Never tell a witness that they are right or wrong in their identification.
- Remember that disclosure is a continuing obligation. All inculpatory and exculpatory evidence must be disclosed to the defence in a timely fashion. In the event that a witness materially changes their original statement, by offering more or recanting previously given information during an interview, the defence must be told. In these circumstances, it would be prudent to enlist the services of a police officer to record a further statement in writing setting out these material changes.
- Always lead evidence of the history of the identification. It is vitally important that the trier of fact not only be told of the identification but all the circumstances involved in obtaining it, i.e. the composition of photospread.
- Be wary of prosecutions based on weak single-witness identification. While not required by law to secure a conviction, ascertain whether there is any corroboration of an eyewitness’s identification in order to overcome any deficiencies in the quality of that evidence.
- The use of expert evidence on the frailties of eyewitness identification is redundant and unnecessary in the fact-finding process. A proper charge and caution by the trial judge can best deal with the inherent dangers of identification evidence.
- Workshops on proper interviewing techniques should be incorporated in regular and ongoing training sessions for police and prosecutors.
- Presentations on the perils of eyewitness misidentifications should be incorporated in regular and ongoing training sessions for police and prosecutors.
- Custodial interviews of a suspect at a police facility in investigations involving offences of significant personal violence (eg. murder, manslaughter, criminal negligence causing death or bodily harm, aggravated assault, aggravated sexual assault, sexual assault of a child, armed robbery, etc.) should be video recorded. The video recording should not be confined to a final statement made by the suspect, but should include the entire interview.
- Investigation standards should be reviewed to ensure that they include standards for the interviewing of suspects (and witnesses) that are designed to enhance the reliability of the product of the interview process and to accurately preserve the contents of the interview.
- Police investigators and Crown prosecutors should receive training about the existence, causes and psychology of police-induced confessions, including why some people confess to crimes they have not committed, and the proper techniques for the interviewing of suspects (and witnesses) that are designed to enhance the reliability of the product of the interview process.
- Cross-sectoral educational programming should be provided to ensure that justice professionals are aware of:
- the dangers associated with in-custody informer information and evidence;
- the factors affecting in-custody informer reliability;
- policies and procedures that must be employed to avoid the risk of wrongful convictions precipitated by in-custody informer information or evidence.
- Policy guidelines should be developed to assist, support and limit the use of in-custody informer information and evidence by police and prosecutors.
- Each province should establish an in-custody informer registry so that police, prosecutors and defence counsel have access to information concerning prior testimonial involvement of in-custody informers. The creation of a national in-custody informer registry should be considered as a long-term objective.
- A committee of senior prosecutors unconnected with the case should review every proposed use of an in-custody informer. The in-custody informer should not be relied upon except where there is a compelling public interest in doing so. The In-Custody Informer Committee’s assessment should take into account, among other things, factors affecting the reliability of the information or evidence proffered by the informer. That reliability assessment should, moreover, begin from the premise that informers are, by definition, unreliable. Any relevant material change in circumstances should be brought to the In-Custody Informer Committee’s attention to determine whether the initial decision as to whether there was a compelling public interest in relying on the in-custody informer should be revisited.
- Any agreements made with in-custody informers relating to consideration in exchange for information or evidence should, absent exceptional circumstances, be reduced to writing and signed by a prosecutor (in consultation with the relevant police service/investigative agency), the informer, and his or her counsel (if represented). A fully recorded oral agreement may substitute for a written agreement.
- In-custody informers who give false evidence should be vigorously and diligently prosecuted in order to, among other things, deter like-minded members of the prison population.
- Strong policies and procedures for Crown counsel should be implemented in all jurisdictions to ensure that the DNA data bank provisions are being used to their full potential.
- Provincial tracking systems should be developed to better understand the use and effectiveness of DNA in the criminal justice system, with the ultimate goal of establishing a national tracking system.
- The significance of the national DNA data bank to both convicting the guilty and preventing the conviction of the innocent should be included in any educational programs for Crowns and police and should be considered for inclusion in the National Judicial Institute curriculum for judges. A research package for Crowns on DNA data bank applications and the use of DNA evidence should be developed and kept current.
- Protocols and procedures should be developed by law enforcement agencies and justice departments to facilitate the release of forensic materials for independent testing upon the request of the defence.
- The expansion of the DNA data bank should be considered. Any expansion of the list of primary and secondary designated offences (offences that are eligible for DNA data bank orders) must take into account important Charter protections to ensure that individual rights and freedoms are respected in the collection and use of DNA information.
- The issue of access to post-conviction DNA testing should be studied.
Forensic Evidence and Expert Testimony
- Prosecutors should receive training on the proper use, examination and cross-examination of expert witnesses during ongoing and regular education sessions.
- The Heads of Prosecutions Committee should consider the feasibility of establishing a national central repository to catalog and track among others:
- case law,
- newsletters and articles,
- reliability of current techniques,
- the latest developments and advancements in specific fields of expertise,
- sources of literature and study guides,
- directories of professional organizations from across the country (including criteria for the qualifications of specific experts),
- prosecution policies,
- teaching aids
- Prosecutors should not shy away from the use and reliance on novel scientific technique or theory in the appropriate situation providing there is a sufficient foundation to establish the reliability and necessity of these opinions and that the probative value does not exceed the potential prejudicial effects.
- Prosecutors should be reminded of the existence of Section 657.3 of the Criminal Code and the requirements and reciprocal obligations of disclosure imposed on all parties to a proceeding intending to tender expert evidence at trial.
- A National Forum on the Prevention of Wrongful Convictions, co-sponsored by the Heads of Prosecutions Committee and the Canadian Association of Chiefs of Police, should be held to provide national leadership and direction. *
- The following options for educational venues should be considered :
- joint educational sessions involving Crowns, police, defence and forensic scientists;
- specialized conferences, courses and educational materials for police;
- specialized conferences for Crowns, as well as segments in continuing education programs;
- judicial information sessions;
- law school courses;
- bar admission course; and
- education opportunities for the defence bar.
- The following educational techniques should be considered:
- presentation of case studies of wrongful convictions and lessons learned;
- small group discussions and role-playing, demonstrations of witness interviews, and conducting photo-lineups;
- on-line training for Crowns and police;
- distribution of educational materials/policies on CD-ROM;
- video-linked conferences;
- participation of psychologists, law professors and criminologists in educational conferences;
- guest speakers, including the wrongfully convicted; and
- regular newsletters on miscarriage of justice issues.
- The following educational topics should be considered:
- role of the Crown and Attorney General;
- role of the police;
- tunnel vision;
- post-offence conduct and demeanour evidence;
- frailties of eyewitness identification;
- false confessions;
- witness interviews;
- alibi evidence;
- jailhouse informants;
- ineffective assistance of defence counsel;
- forensic scientific evidence and the proper use of expert evidence;
- benefits of DNA evidence;
- charge screening;
- conceding appeals/fresh evidence.
- Each prosecution service should develop a comprehensive written plan for educating its Crown attorneys on the causes and prevention of wrongful convictions.
- Any educational plan for the prevention of miscarriages of justice should include a public communication strategy to advise the public that participants in the criminal justice system are willing to take action to prevent future wrongful convictions.
Police Notebooks/Crown Files/Trial Exhibits
Clear policies should be developed for police, Crowns and court services on how long to keep police notebooks, Crown files and trial exhibits. Clearly the cost implications will have to be considered in developing such policies.
Ineffective Assistance of Counsel
An issue that deserves some attention is what are the responsibilities of Crown counsel when they suspect an accused person may not be getting effective counsel. Perhaps some guidelines should be developed to assist prosecutors in these difficult ethical situations.
- Subject to available resources, the Heads of Prosecutions Committee, perhaps in association with the Canadian Association of Chiefs of Police, should establish a resource center on the prevention of wrongful convictions. This could be a Web page or a page on the revamped FPT Heads' Intranet site.
- The Heads of Prosecutions Committee should establish a permanent committee on the prevention of wrongful convictions, with continued involvement of the police community through the CACP.
- The recommendations in this report should be continually reviewed by the committee to take into account developments in the law and technology and subsequent commissions of inquiry. At a minimum, a full review should take place in five years building on the ongoing work of this committee.
* Subsequent to the writing of this report, the Manitoba government, in conjunction with the University of Manitoba, has begun to plan an international conference on wrongful convictions in Winnipeg in October 2005. A representative of the Working Group is on the organizing committee and the Working Group believes this conference can achieve the same objectives as the proposed National Forum and wholeheartedly supports the initiative.
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