Guilty Unless Proven Innocent: Wrongful Convictions and the Presumption of Guilt

A system which operates upon the inverse principle to the one on public view, “innocent until proven guilty,” must regularly convict people either for crimes they did not commit, or for crimes they did commit but for which the evidence is lacking. Almost everyone would agree that a great wrong is done when an innocent person is found guilty. Fewer people would agree that a great wrong is also done when those who are actually guilty are found so on means other than by a fair and proper process, which necessarily includes the presumption of innocence.

Yet if a person's guilt is established in any way with the assistance of prejudicial assumptions on the part of the police or the courts rather than upon the strict basis of facts and the clearest of inferences (This is a sticky point, for what is clear? This is where bias affects the outcome of a trial), the obvious consequence is that wrongful findings of guilt are inevitable and the trial becomes to some extent a casino table; one with the odds stacked heavily in favour of citizens matching the profile of a “respectable citizen” and the odds stacked decidedly against those who fall furthest from this standard.

There is already a decent selection of irrefutably evidenced and compellingly argued books written on the role of “race”, gender, class and other factors which affect a person's chances in the casinos of law, so I will not make those arguments here. All to say that to find a person guilty in such a slipshod manner as relying upon presumptions of guilt where the facts do not suffice is a surefire recipe for wrongful convictions. Since my own experience with the courts strongly suggests the routine operation of a pro-guilt bias, I expect that wrongful convictions are far more frequent than we have ever been led to believe. Only those with a functional level of self-esteem, focus, and drive would be in a position to communicate their stories of wrongful conviction and have themselves heard, let alone believed.

In a 1992 federal review of wrongful convictions in Canada, Senior Analyst Philip Rosen noted that:

"A final issue of concern to applicants’ counsel is the lack of financial assistance to convicted people who may wish to submit a s. 690 [Criminal Code] application for mercy to the Minister of Justice. In several instances, provincial legal aid plans have refused to assist s. 690...applicants with their legal fees and disbursements. In some cases, counsel have done this work on a pro-bono basis and assumed thousands of dollars in disbursements, while in others, non-governmental organizations have financially supported the applications (http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp285-e.htm)."

If this is the hurdle people wrongfully accused face, it stands to reason that the wrongful convictions that find a public spotlight represent but a tip of a rather horrifying iceberg. Beyond these formidable personal constraints that bar the way to a successful “reversal” (can the damage caused by a wrongful conviction ever truly be reversed?), there must also be at play a certain reluctance on the part of the courts to shed a light on the systemic problems indicated by such travesties. As Mr. Rosen points out, “Wrongful convictions undermine the two prongs of the criminal justice system’s legitimacy. If someone is wrongfully convicted, that person is punished for an offence he or she did not commit and the actual perpetrator of the crime goes free. As well, public confidence in the system declines when wrongful convictions are identified.”

As strong as the desire for the former may be, professional considerations for the public reputation of the entire administration of law may transform the will to free an innocent person into a rather lackluster affair. Without a rather fervent and widespread will to scrutinize and honestly evaluate the errors in the system and admit their systemic nature, however, wrongful convictions are doomed to perpetuity, bringing the legal system into further disrepute. As Mr. Rosen concedes,
"Because findings of wrongful conviction represent a basic undermining of the integrity of the criminal justice system, the procedures established for the review of such cases are extraordinary in nature and are rarely invoked successfully. For it to be otherwise would be to put in question the criminal justice system’s legitimacy and, by bringing attention to its fallibility, to weaken public confidence in it."

Not surprisingly, then, Mr. Rosen reveals a shockingly low incidence of estimated wrongful convictions:

"There are probably fewer truly wrongful convictions than claimed, but there may still be a surprising number. It has been claimed that in Great Britain, the wrongful conviction rate may be as high as .1% – or one out of every thousand people. Another estimate is that there may be 15 cases of wrongful convictions each year in Great Britain. Academic studies in the United States indicate that between one-half and 1% of persons convicted of serious offences did not commit the crime. It has also been suggested by the Criminal Justice Research Centre that as many as 6,000 persons a year are wrongfully convicted of felonies in the United States. There are no similar estimates of the number of wrongful convictions in Canada. An official with the Department of Justice recently estimated that the Department receives about 30 applications a year for the review of criminal convictions."

Given some of the hurdles Mr. Rosen and I have already highlighted, how can we calculate the frequency of wrongful convictions? Mr. Rosen's reference to the roughly 30 applications the Department of Justice received annually in the years leading up to 1992 can only tell us that, when one takes into account the small percentage of people who have the wherewithal to mount an effective wrongful conviction campaign (including finding a lawyer who believes strongly in the merits of the case); have been sentenced to a long enough sentence for the years- or decades-long pursuit of justice to be deemed an attractive option; and have sufficient evidence to argue a case where the burden of proof is on the defendant to establish his or her innocence, that this number must represent a miniscule fraction of the actual cases of people wrongfully convicted.

In cases where a person is serving ten or less years, even assuming we are speaking of a the relatively small number of people who have the emotional, social and financial wherewithal and the evidentiary requisites to mount a wrongful conviction case, a large number of these people may well serve their entire sentence before a wrongful conviction claim gets anywhere, if it gets off the ground at all.

Anyway, people who have the tools and finances to convincingly advocate for their own innocence are those most likely to avoid wrongful convictions in the first place. A wealthy white businessman has the means and “respectable citizen” appeal to be able to defend himself well against both a conviction if he is at trial and a wrongful conviction in the less-likely event of such an occurrence. Demographically, those most likely to be wrongly convicted are the same people who are least likely to be willing and able to stand up for themselves effectively. A drug-addicted Native woman would have considerable hurdles both in avoiding a presumption of guilt and to successfully fighting a wrongful conviction in the far likelier instance of that occurrence.

Surprisingly, while the Innocence Project, an American organization committed to using DNA testing to reverse wrongful convictions, acknowledges that “These DNA exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed ,” they do not even mention the social status reflected in the convictees' “race”, class, gender which leads to far more likely and wider ranging systemic presumptions of guilt. They list instead four raceless, classless, genderless factors contributing to wrongful convictions: eyewitness misidentification testimony, unvalidated or improper forensic science, false confessions and incriminating statements, and snitches (innocenceproject.org). Of course, without recognizing the convictee's social status as the primary driver of convictions based on the presumptions of guilt, we are deprived of a deeper and more accurate understanding of how and why wrongful convictions occur.

Rosen similarly provides a mechanical explanation for wrongful convictions which do not make any mention whatsoever of the role that poverty, colour, ethnicity, nationality, personal background, language, appearance, or gender have to do with these obviously “race”, class and gender-biased miscarriages of justice:

"The causes of wrongful convictions are easy to identify: irregularities and incompetence at the investigatory, pre-trial, trial and appellate stages of the criminal justice system. More particularly, Kaiser identifies the following contributory factors, among others: false accusations, misleading police investigative work, inept defence counsel, misperceptions by Crown prosecutors of their role, factual assumption of an accused’s guilt by actors in the criminal justice system, community pressure for a conviction, inadequate identification evidence, perjury, false confessions, inadequate or misinterpreted forensic evidence, judicial bias, poor presentation of an appellate case, and difficulty in having fresh evidence admitted at the appellate stage. Each instance of determined wrongful conviction illustrates a different combination of failures in the criminal justice system that have prevented it from functioning effectively and fairly."

Not once in Mr. Rosen's report are the words “race”, “racism”, “sexism”, “class” or “classism” even found in the federal document.

Anecdotally, a friend told me about a conversation he had had with a Crown lawyer, whose position was that whoever he is prosecuting is probably guilty and, even if not, that person had probably done something in his life that he should have gone to jail for anyway. While this is anecdotal evidence based on one incident that has come to my attention, it confirms to me at least some extension of the presumption of guilt beyond the confines of our case. Further, one of the defence lawyers in our case candidly admitted that he was not used to dealing with innocent people since most of the people he deals with are guilty. Whether his finding of guilt was based entirely on the facts in all those cases or mixed with presumptions of guilt is not clear, though dealing with people deemed guilty by whatever means cannot but lead to an overall presumption of guilt over time.