Kent Roach on “The Meaning of a Miscarriage of Justice” Jan 12 2018

we’re very fortunate today to have with
us professor Kent Roach who is a Professor of law you may know at the
University of Toronto down the road is also Pritchard Wilson chair of Law and
Public Policy at the said University of Toronto and if I graduated from that
University as well as from Yale University and was a clerk to justice
Bertha Wilson of the Supreme Court of Canada
he’s been the editor of many fame journals in the field including the
criminal law quarterly he’s a fellow of the Royal Society in fact I could list a
number of accolades that he’s received Royal Society and so forth he’s also
published over 13 books and we learned that lunch that he’s working yet on
another so one of the most prolific authors I want to say in the legal field
all fields confounded here in Canada so really a giant of the law in this
country but also really I want to say a father figure in criminal law for many
of us because Kent has been a trailblazer in in in many in many sort
of sub fields of criminal law and over beyond criminal law writing on you know
judges biographies working on on issues of remedies more and more generally
questions of human rights questions of counterterrorism and so on and so forth
so so I’m gonna stop here because really he’s one of these people that I could
talk about for hours simply to say that he’s agreed to come and speak to us
about some of his current work and to present a paper entitled the meaning of
a miscarriage of justice and comparative miscarriages of justice which is a topic
that really unfortunately has received very little attention to date in this
country and so we’re really glad that you’re with us today and present you
your groundbreaking work thank you very much well thank you very much for that
generous introduction and for the invitation it’s great to be here I don’t
know about being a father figure it makes me feel a bit old but that’s
probably par for for for for the course we’re gonna hear today is is is
is actually a little experimental I’m going to speak to a
paper that I have written which deals with this issue of should we study
wrongful convictions factual innocence or should we be more concerned about
broader miscarriages of justice but I’m also going to talk about what I hope
will be some ongoing work for myself looking at what comparative law has to
offer with respect to this field of all say for want of a better word wrongful
convictions now as some of you may be aware that there has been a burgeoning
scholarship on wrongful convictions Richard Leo has been a particularly
influential scholar not only in his work on false confessions but in calling on
scholars to kind of reconceptualise the field of wrongful convictions so in 2005 he
wrote a very famous article calling for a sociology of wrongful convictions and
in 2017 he updated that article and and and and concluded that scholars mostly
American scholars have upped their game when it came to writing about wrongful
convictions he talks about obviously the role of social science many social
sciences psychology relevant to wrongful conviction but also the growth of big
picture and subject matter discussions of wrongful convictions to kind of even
out what had historically been an emphasis on on case studies but one of
the things that Richard Leo leaves out in its 2017 as an indeed in its 2005 is what is the role for comparative studies of
wrongful convictions now just this year two scholars
two scholars who I know and I respect wrote two papers that made me
nevertheless deeply uneasy the first is Mark Godsey who wrote a paper called a
global innocence movement and the second is Brandon Garrett who is any of you
familiar with wrongful convictions will know that he’s really one of the stars
in the United States wrote a very important book convicting the innocent
based on the first 200 DNA exonerations wrote and published a paper in the
California Law Review called towards an international claim of innocence and
both professor Godsey and Garrett make the claim that there is a growing
convergence crossing traditional lines between civilian and common law systems
and expanding over virtually all connot continents towards a global innocence
movement Godsey’s phrase or what Garrett argues is an international right to
claim innocence and why am i a bit troubled by by by by that well it seems
to me that this idea that there is a growing convergence if you go back to
Mark Tushnet’s I think very helpful taxonomy of comparative Comparative Law
where he talks about comparative law being often about either functional
similarities across different legal systems or expressive differences both
Godsey and Garrett are stressing the functional functional
similarities in wrongful convictions across the globe and there is something
I think important and powerful there so both of them say you know with
eyewitnesses get it wrong in in in the United States then they’ll get it wrong
in Canada and Germany and Singapore where where where where where wherever
and and and so there is something to that but I guess what I find troubling
and one of the things that I kind of want to examine in in this paper and
hopefully in later work is they are basing their claims and both of them I
think are very upfront about this in the American innocence movement and you know
you know certainly if you look at criminal justice writing there is a very
strong strain that the American criminal justice system is exceptional and
perhaps actually exceptionally bad in some ways when it comes to mass
imprisonment gross disparities of racial over-representation populism mobilized
against the rights of the accused the rights of felons to vote and so forth
and and so for me this raises the question of can you take the the good
right because I mean one of the things I don’t want to argue against the American
innocence movement I think that you know many people including Godsey and Garrett
and Shaq and new fouled and and many many other people have done
wonderful work in the American criminal justice system that has been not totally
unproblematic but I think quite quite progressive but the question for me is
can you have that good of an american-style innocence movement
without taking the bad of an American criminal justice system that uses the
death penalty that has many men mandatory minimums racism extreme
localism extreme populism so how how do you disentangle those those those those
those two and so Mike my kind of preliminary hypothesis is that an
american-style innocence reform if implemented uncritically can have
regressive effects on criminal justice systems that are more restrained than
the American criminal justice system which would virtually be almost all of
the criminal justice systems that you can think about except maybe China and
and and and and and I’m going to talk about China because that that’s one of
the places where this innocence movement and concern about wrongful convictions
is is gaining ground now as a kind of sub thesis right this would suggest and
and and and and this is something that you know some of you here may be working
with the Osgood Innocence Project which is done important and-and-and
and and good work but I think raises a question and that is that innocence
projects outside of the United States and you know I mean no criticism of the
Osgood project or really any other project in Canada Australia and the UK
have often frankly struggled to have the to produce the same sort of exonerations
that in the United States have resulted in 340 DNA exonerations and with the US
Registry of exonerations now over 2,000 registered exonerations since 1989 right
and so I think that this may actually address a question that I find when I
talk to colleagues working on innocence projects and Australia colleagues
working on innocence projects in the UK colleagues here in Canada yes we are
finding cases yes wrongful convictions exist I don’t in any way want to promote
a sense of complacency but if we’re using an American template and the
American criminal justice system is exceptional if if you accept that then
maybe it’s not passing strange that the non American innocence projects have not
been able to replicate the success of American innocence projects it’s not to
mean that they’re not worthy endeavors but again I think that you know in terms
of comparative law as tuition it reminds us you always have to balance yourself
between what is functionally similar and what is expressively different okay so moving on let’s talk
at the most basic level and you know I apologize if it seems semantics but I
think it is very important what is a miscarriage of justice what is a
wrongful conviction and I guess my hypothesis would would would would be
that outside of the United States you’re much more likely to hear the language of
miscarriage of justice whereas in the United States you are much more likely
to hear the language of wrongful conviction / factual innocence and hear
the most influential and it is a very broad definition of miscarriage of
justice is the english scholar clive walker’s definition of miscarriage of
justice which he defines as an individualistic rights-based approach to
miscarriage of justice and he says this happens whenever suspects or defendants
or convicts are treated by the state in breach of their rights whether because
of deficient processes the laws which are applied to them or because there’s
no factual justification for the applied treatment or punishment so he’s not
oblivious to factual innocence but he’s adding a lot more or whenever suspects
or defendants or convicts are treated adversely by the state to a
disproportionate extent in comparison with the need to protect the rights of
others so a very kind of sweeping definition of miscarriage of justice and
you compare that with say actual innocence which I believe was the title
of Scheck and new fields a seminal book about the innocence
movement where they define actual innocence as cases where there is
definitive evidence that the suspect did not commit the crime most most often
through deep DNA samples found at the scene of the crime that do not match the
the the the the accused even if you just move to act the level of law right we
know in Canada under Mullins Johnson that rightly or wrongly the Ontario the
Canadian courts have said we do not have jurisdiction to make declarations of
factual innocence right innocence is not not a recognised category in Canadian
criminal law now innocence has had much more of an inroads in American law right
that innocence first made inroads into American law as a way to restrain habeas
corpus applications that were out of time so you had to demonstrate not only
that your rights were violated but that you might actually be innocent
so as Carroll Carroll and Jordan Stryker have written about innocence was
actually used as a way to restrain habeas corpus but if you look at I was
looking at the California Penal Code which is gargantuan but there’s there
are declarations of factual innocence so the thing that bill Mullins Johnson was
looking for in Canada is actually available in California so you know
depending on your perspective that may or may not be a good thing and then
finally if you look at the only American example of something like the criminal
case review can in a dedicated agency with powers to
refer cases back to the courts the one the one that exists in the United States
the North Carolina innocence Inquiry Commission is one that is restricted to
claims of factual innocence so you know again it seems to me that this that that
that imposing an innocence paradigm onto a legal system like most legal systems
outside the United States that I’m aware of that does not recognize innocence can
be a recipe in frustration right and of course some of you may be familiar with
a debate that has been raging the last seven or eight years in the United
Kingdom between university-based innocence projects in the United Kingdom
and the criminal case review Commission on on the basis that the innocence
projects inspired by the American models are saying we’re about discovery and
vindication of factual innocence the CCRC and the Court of Appeal saying well
I’m sorry like in Canada innocence is not a legal category that we recognize
the issue is safety and this has led to you know a very kind of tense battle
where some people in innocence projects in the UK universities have gone so far
as to say well maybe we need to get rid of the CCRC because it’s not concerned
enough with innocence and the CCRC and the Court of Appeal have been perhaps
more hostile than they should have been to the important work that the
university innocence but these projects have have done because of course the
CCRC is as you know an administrative agency like any administrative agent
see is fallible especially when its budget declines and in the number of
applications goes up and it has a 96 percent rejection rate of those who
apply to the CCR see asking for their convictions to be reopened and sent back
to the the the court now you know another reason to study these different
meanings of what a miscarriage of justice is is that they’re not written
in stone right so the fact that outside the United States the the the the the
the the factual innocence category has not yet gotten a hold doesn’t mean that
that is always going to be so and I would kind of site perhaps two examples
and that is even though the UK doesn’t recognize innocence as as a category in
terms of criminal appeals innocence reasoning and of course the converse
factual guilt reasoning has influenced at least two developments in the UK both
of which in the UK context and this goes back to my original thesis i i’ve you is
quite regressive so the first is the abrogation of double jeopardy rules in
the UK in 2003 right so one of my concerns about factual innocence is the
flip of factual innocence is factual guilt right so it is and nobles and chef
have have you know recognized this from the beginning
it is a discourse that is hostile to kind of due process and one of the
things that happened in 2003 is the british allowed the abrogation of double
jeopardy if new evidence has emerged of factual guilt
right so you know that’s an example where if you play with factual innocence
can you avoid the flip side of it which is factual guilt isn’t isn’t to say that
that’s wholly unprogressive because one of the things that has happened is in
some Australian states they’ve used abrogation of double jeopardy that
allows the crown to reopen cases after acquittals when there is new evidence of
guilt they’ve been able to flip that and get a second right of appeal in cases of
new and compelling evidence of innocence right so again you know it does work but
you have to realize that you know you’re playing a game that is is is you know
could have regressive effects if you are concerned with the rights of the accused
the second example in the UK is over the last 10 years they have changed their
system of compensation for those who are wrongfully convicted to require proof of
factual innocence so you know one of my reasons why I’m in a slightly awkward
position of you know having some cautionary notes about this kind of
growth of a global innocence movement that is being celebrated is again I
think it can have some regressive effects depending upon where the
starting points are another example closer to home which shows I think
attraction or growth of a factual innocence model is the differing
reactions to the Omar Khadr and Maher Arar settlements right so if you go back
to the Aurora Commission report what justice O’Connor does is come about
as close as possible as say as as as declaring mister are to be factually
innocent so justice O’Connor’s conclusions were that he had seen no
evidence that suggested that Maher Arar was guilty of a national security threat
or a war a threat of national security now not everyone agreed with the
subsequent 10.5 million settlement with mr. Arora but I think most of us would
acknowledge that there was much less resistance to that than there was to the
same similar settlement given to Omar Khadr even though he his rights
his charter rights the Supreme Court of Canada had had in two different
decisions said was clearly violated and even though mr. Carter’s guilty plea in
the military commission really has all the indicia of a false guilty plea which
is also a new phenomena in wrongful convictions people making rational or
ear year-year irrational decisions to plead guilty so so so that’s that’s
that’s that’s that’s my overall argument about the meaning of a miscarriage of
justice these are the actual innocence or factual in in essence and the fact
that I myself find the miscarriage of the broader miscarriage of justice
rubric to be much better much much much much more attractive in
in the time remaining to me and it’s quite brief I just want a much more
tentatively sketch out why although I think we need to have caution in
applying an American template of innocent scholarship I do think that a
comparative examination of wrongful convictions can actually contribute to
our understandings of wrongful convictions and it’s something that in
the years ahead I hope to devote to be able to devote more time to so what can
comparative law show us okay well first of all much of the
examination that Garrett and Godsey do and much of the literature on wrongful
conviction has been focused on what the causes of wrongful convictions are I
think a gap in the literature and one where comparative law can really
contribute is what is the responses to wrongful convictions and how do they
differ and here I would suggest you know that say comparing the UK and Australia
on one hand and Canada’s response to something like false confessions opens
up the our sense of imagination because both in the UK and in Australia the
response to concerns about false confessions and abuse during
interrogations that can lead people to falsely confess have been dominated by a
legislative response pace and and similar legislation in some Australian
states supplemented by a guide to practice whereas if you look
in Canada the criminal code is Lara is is silent on interrogation practice we
rather rely upon case-by-case adjudication which in some ways makes us
a little bit more like the United States although even in the United States there
are a number of states that have more statutory regulation so so so it seems
to me that comparative law can help us understand both the effectiveness but
also why from certain from from from from from certain starting points
including political and legal culture why some countries will look to
legislation as protection against wrongful conviction whereas other
countries and I think Canada particularly has tended in the last 20
or 30 years partly because of the Charter to look to the courts as the
main repository of remedies against wrongful convictions similarly you could
see similar strains of this with respect to expert forensic evidence which plays
an important role in wrongful convictions where Canada’s response has
been to attempt a little bit to tighten up the gatekeeper role in cases like
Abbey and white Burgess where in the United States and partly because of a
perception that the Daubert standard hasn’t really been very effective
there’s been much more of a focus on the political economy of forensics that is
how is it practiced but of course the political economy of forensics in the
United States is far more localized than it is in
in in Canada and then finally it seems to me that comparative law can allow us
to have a more refined understanding of what the causes of wrongful convictions
are so if you look at any kind of generic list of causes you’ll see false
eyewitness identification as one of the leading causes and in fact that’s one of
the ones that Professor Godsey says this is one of the reasons why we need a
global innocence movement if I witnesses are getting it wrong in the United
States then they must be getting it wrong in Germany and elsewhere but if
you unpack that a little bit right a large part of the false eyewitness
identification in the United States are especially in the DNA cases forty-seven
percent African American males being misidentified often in sexual assault context and then being subject to such
long terms of imprisonment that it makes it possible and feasible for them to
eventually be exonerated right because there’s an access to justice issue right
so so again to go back to that point about why do non-american Innocence
Project snots not seem to be able to replicate the success of American
innocence projects well one reason might simply be that you know most people are
out of prison and the incentive structures then become extremely
different right so both the American death penalty and
the American sentencing practices actually contribute to the exoneration
rate or similarly if you think about guilty plea wrongful convictions
obviously something that has happened in Canada
no from the Simon Marshall the dr. Smith cases the Anthony had a Meyer case but
in 2016 seventy-four of the hundred and
sixty-six exonerations that were added to the american Registry were because of
guilty plea wrongful convictions well again to fully understand that you have
to understand you know bail practices mandatory sentence the charge structure
in the United States which may facilitate guilty plea wrongful
convictions even more than say Canadian and other laws do so in in in in
conclusion although I some virtues in in applying a generic wrongful conviction
template drawn from the American innocence movement
I especially in raising awareness about wrongful convictions in systems that may
not recognize them I also worry that it could have regressive facts the focus on
DNA that can be very much a double-edged sword
think of Mitt Romney’s Task Force which proposed a kind of you know certain a
a constitutional death penalty that would be based on kind of scientific
certainty imagine if that DNA focus was taken to a jurisdiction such as China or
or or or or or or another one so so so so I think that we should approach this
idea of a global innocence movement with some degree of caution that yes draws
upon the functional similarities where they exist but is more attentive to the
differences and the exceptionalism of the American criminal justice system
that has produced that innocence movement thank you very much so before
you ask your question make sure that you have a microphone go ahead I had a sort of question about
your final conclusions breakfast I concede that American with respect to
understanding miscarriages of justice in the other countries you referred to so I
mean the evidence I recall from Germany is that in fact it’s equally racialized
just with respect to different racial groups so whereas you might see African
Americans disproportionately prosecuted and victims of miscarriages of justice
in the United States you tend to see that for Turks and Arabs in Germany and
I I I’m inclined to believe that holds mutatis mutandis for other European
countries I’m just not as familiar with the literature yeah no no I mean I mean
looking at and and and and and I I’ve written a written about indigenous
wrongful convictions in both Australia and Canada so my point is not that there
are not racial disparities in wrongful convictions but rather that we need to
adjust them to the particular context of the country I mean one of the things
that I found with indigenous over-representation in Australia and
Canada is we may in some ways even have a bigger problem because if you define
the population at risk of wrongful convictions as a crude kind of proxy as
the prison population right so what you have in the United States is you have
african-americans are over over-represented in prison but they are
even more over-represented among the exonerated so I think it’s about you
know somewhere south of 40% in prison and
somewhat south of 50% among the exonerated so that shows that
african-americans even in in in in proportion to the prison population are
are more vulnerable to wrongful conviction but it also shows that they
are getting access to to exonerations we’re in Canada again and and and it’s
complicated by time lags but if yeah if if in Canada and Australia you take the
base indigenous prison population is somewhere between 20 and 30 percent
among recognized wrongful convictions there’s actually less than 20 or 30
percent now you could say well maybe that’s this criminal justice system is
all of a sudden unfair to indigenous people in every other respect but is
pretty good about wrongfully convicted them that seems to me to be implausible
so it also seems to me that that’s a story about potential lack of access to
justice right because it may be that the kind of wrongful convictions that
indigenous people in Canada and perhaps Australia experience are just not
getting picked up by innocence projects to the same degree that African American
wrongful convictions seem to be being picked up by American Aniston’s Pro
projects and other kind of Pro pro bono so so again I mean it isn’t that you
shouldn’t I also think think it’s a fair criticism though of the American
innocence movement is that it’s consciousness of the centrality of race
has I think been fairly late in coming and and and really has been through the
work at the national registry on exoneration and Sam gross and a few
other people but it you know even if you go back
five or seven years race was perhaps not as central in the discussion of American
wrongful convictions as perhaps it ought it ought to have been can’t thank so
much interesting and just a question of a lessons that you draw so I found it
really interesting it really struck me that we begin with a call for a
sociology of wrongful conviction right and then a call for a global Innocence
Project which of course seemed and I think in a sense and this is sort of the
offering it seems like you’re actually just remaking the call for a sociology
of wrongful conviction in the sense to the extent that the pathologies you see
in a global conviction movement are in fact the failures of their not having
done this will see all the giro conviction right right so in some
interesting way the global innocence kind of movement is evidence that the
sociology of wrongful convictions actually hasn’t been done so although
you say people have stepped up their game right in a way I wonder actually
that this is just evidence that that’s not right that you can’t tell a
sociology of wrongful conviction without you know that is disaggregated from
capital punishment from race from these sorts of so from remedy from race from
from structural design from trust and judiciary from a whole range of things
so I find that really appealing actually just about the paper in a way it’s kind
of pushing people back to the original call and what it would mean to take
seriously associate you know wrongful conviction and and that led to something
which which he said that I thought it was quite interesting and and my
question which is if you were to kind of take the caution of an
an Americanized and take the lessons of those dangers and then kind of craft
what a miscarriage of justice project would look like in a place like Canada
like what would that look like if we didn’t do the innocence projects quite
in the same way but what do you think lessons we would take from that how
would it look different than the American Innocence Project because you
know to be frank I I can’t really blame my system a new Apple punishment exists
then things happen of an access to justice focused on innocence at the end
of possible capital punishment is a pretty rational response in design but
it produces these distortions in a system with all these changes so what
would a sort of miscarriage of justice project look like how would what would
its access problems look like what would you do with a team of students right I’m
doing a proper miscarriage of justice well thanks so those those are great
observations and great questions yeah no I mean I mean I I think that that you’re
probably right is that in some ways what I’m calling for is an ass national
sociology as as comparative method and and and in the example that I didn’t get
a chance to get to is there’s been this explosion of writing about wrongful
convictions in the People’s Republic of China and I’m I’m complicit with this I
mean I went over and I gave lectures and you know stuff stuff stuff like like
like like like that but you know it is this kind of missing sociology when you
apply a kind of it’s almost a sanitizing template to say every system has wrongful convictions China like everyone
else you know and and and because they’ve had a number of celebrated
Keysha cases where the victims have turned up alive whereas the more I read
about the the experience in in the PRC it really boils down to
torture 99.9% clearance rate lack of judicial independence lack of police
independence lack of prosecutorial independence lack of presumption of
innocence you know so but but but I mean but but but there are a lot of us and as
I say I mean I’ve been partially complicit who kind of you know want to
take this template and travel with it brah so your second question is then
well well what does a more sociologically informed Innocence
Project or really miscarriage of justice project look like and I think in Canada
and you know you know this is something this year for the first time I taught my
wrongful conviction class with a colleague Amanda Carling who worked with
innocence Canada for four years I had previously taken the course but also
comes at it from the perspective of a matey woman and I think a miscarriage of
justice projects it would be projects in Canada and it would probably look more
like community legal clinics so there so so there would be a miscarriage of
there’s a meaning an indigenous persons miscarriage of justice project and of
course Emma come look Conliffe and Deborah Parks has written about you know
how you know an indigenous woman who pleads guilty to manslaughter who might
have a lavell a defense is not factually innocent and is going to have problems
being represented by a traditional Innocence Project that person needs to
be represented by someone with cross-cultural competence similarly
you know you think about simon marshals case and the problem of people living
with mental disabilities and i think that if you had that structure you would
also have people saying look the issue is not simply the wrongfully convicted
what about the rightfully convicted because those people with the same
characteristics are still treated badly right so to a certain extent you know
and again i mean i hesitate to say this because i do think i agree with you
completely that if i’m in the united states this looks like innocence work
looks like pretty good work for me to do but there is a sense that the innocence
work is kind of the flip side of victims rights right that if you think of a
punitive american system where the crime victim has such a kind of emotional pull
and demand on policy what’s the only thing that could possibly match that
well the only thing that could possibly match match that is the person who is
factually innocent and has been in prison for twenty or thirty years often
because of poverty race disability what what what what what whatever and so one
of the problems with the innocence movement is it it it looks for good
victims right i mean that’s a problem with victims rights isn’t that we
shouldn’t care about victims but that we idealize victims and we make victims
represent a certain idealize sort of thing and and and and if you read
american victim compensation statutes if you read even DNA access act you see
these kind of the the good victim sort of thing so you know we’ll give you
compensation but you know you you shouldn’t have any prior felonies and
you shouldn’t have played any role and for sure
you shouldn’t have pled guilty you have to be the good victim and so to go back
to Ben’s point I think a miscarriage of justice project is one that is kind of
much more holistic and says look we know from the wrongfully convicted that
people who come out of jails are damaged but maybe some of that damage happens to
people even that aren’t wrongfully convicted that are in those those those
jails but you know the problem is is you know it’s a lot easier to raise money
for an Innocence Project than it is for a miscarriage of justice project because
a miscarriage of justice project gets you into you know well this is you know
technicalities this is this you know this is rights and and and this is why
although you know Clive Walker I think his definition of miscarriage of justice
is very normatively compelling I’m not sure history is on its side because I
think in a world where you know there there’s growing punitive nests populism
it’s just you know that the factual innocence model and and this is not only
a point about the United States this is a global point and we’ve seen it grow in
the UK I think it could grow here you know I mean one of the things I’m
concerned about is if we regular regular rise our system for compensating the
wrongfully convicted which for all kinds of rules of law law reasons we should
but I worry that right now in in this climate if it would just solidify a
factual innocence sort of man anyway thanks very hard to generalize the way
it is with as opposed to what there would be with respect to substantive
coming along so listening to your presentation and talking about us
exceptional and why the claim for innocent might do
more work there I find myself thinking I wonder
I find myself I find myself wondering whether that’s actually accurate it’s
like as a matter of fact it’s true that there are innocence projects there they
and given that polity that has a government attraction that might not go
on and elsewhere but at the same time when I think until you spoke mostly of
anglo-american jurisdictions you mention German in China one of the particularity
of the inquisitorial system is that is about less rights that are dead
encumbered the process in countries like Germany is bargaining is not something
that comes along the way to corrupt the process and so one might think innocence
is really what it’s about there whereas in the u.s. where 95% of the cases do
not make it to trial and people plead guilty based on all sorts of frivolous
considerations possibly coercion etc that is not surveyed innocence is not
really the problem there it is in the sense that death penalty is something
that we should try to work around we don’t innocence to die but really the
bulk of the issues are not so much about innocence but just the the the
miscarriages of justice right so so I’m wondering whether the emphasis is not
skewed by saying in a sense us and you know miscarriages of justice elsewhere
are supposed to saying the reverse right so so the the u.s. is not really about
innocence is there just as a kind of a slogan that has worked with respect to
some cases but what’s really needed there is miscarriages of justice where
it’s it might be easier in Germany to say innocence is what should drive the
conduct that the the movement or die the popular yeah yeah I mean I mean I mean I
mean I mean I mean that’s interesting because I mean although it may not fit
with all all the aspects of my thesis it may also pick up you know what I was
saying is we don’t see the success of innocence projects in continental Europe
I mean they do have some successes but not even on a per capita of the magnet
as the US so I think what you’re saying is well this this may actually represent
the fact that those systems are doing not perfect because no system will be
perfect but a better job of getting at truth because that is closer to what
they are concerned with right I think that there’s something to that I mean I
mean to be fair though I mean both Garrett and Godsey are very skeptical
about the civilian common-law divide and they both look – I think France which in
a number of reforms I think after our drove and in 2014 as actually they would
argue have been more willing to allow revisions but but but but but but again
I like your point because it kind of goes back to the exceptional I actually
don’t think your point is is contrary to the exceptional American system and what
the American system is is this heavily plea-bargain kind of due process sort of
obstacle course that truth is is not is is that most a kind of secondary concern
and of course for Canada one of our you know worries are are we betting are we
becoming more like the American horse right and then this also goes back to
the point of what is the technology of prevention right so I mean certainly you
know people like like you know Craig Craig Bradley’s critique of the due
process revolution I have a lot of time for that in if someone said would you
rather have an ankle especially if there’s a singing and a Spencer with it
or would you rather have pace I would rather have pace right and so there the
there’s an issue of whether we’re getting caught in a slipstream
but having said that again you know innocence Canada and other projects and
it looks like there’s going to be a big wrongful conviction coming from UBC
Innocence Project but I think we do have to concede that it’s not even on a per
capita basis it’s not of the same magnitude as what is happening in the
United States and maybe what we need to do is stop hitting ourselves over the
head with that and saying well we’re just not looking hard enough we’re not
working hard hard hard hard enough it just may be that the Americans have to
you know till unfortunately for them and for the wrongfully convicted more
fertile soil but again I don’t want to say that in any way to suggest
complacency right because I mean I mean there are obviously wrongful convictions
here professor different yeah I wanted to just ask a little bit more about
those court driven types of responses to the causes of wrongful convictions and
so you’ve mentioned the confessions rule for example as being directed partly in
Canada toward the Prevention of false confessions and the fact that they would
lead to wrongful convictions one of the things I find interesting about the
confessions rule in Canada is that it’s a kind of hybrid rule when you look at
the question of factual innocence on the one hand and due process on the other
because a confession can be rendered involuntary for reasons that are
associated with it being unreliable and causing wrongful convictions or it can
be rendered involuntary for reasons associated north due process types of
concerns and I think we see the same kind of hybrid rule having been adopted
by the Supreme Court of Canada in the Hart case in 2014 with respect to mr.
big confessions in the mr. big sting type of operations or the court says
well first we’ll consider excluding these because they’re unreliable but
even if they’re not unreliable we can also exclude them when their abuses of
process and that’s a completely separate due process
type of question and so my question for you is do you think those kinds of tests
that are very broad and hybrid in that sense that Canada tends to like we seem
to like having tests that bring in innocence among other types of factors
are they incoherent do they do those kinds of tests actually undermine the
due process part of it right this is what my former colleague Don Stewart
said about Hart when it came out he said why all this stuff about reliability all
we need is abusive process why aren’t we just talking about whether we’re abusing
the process and what and and we shouldn’t be concerned about reliability
because that undermines it and it plays to this populist notion that all we care
about are people who are factually innocent so I just wondered given that
the state of the law in Canada does rely on these kinds of judicial controls and
that they tend to have to use factual innocence along with other types of
concerns what do you think about that approach right well I I have to say that
that I’m probably more of a fan of the hybrid hybrid approach I mean there’s a
reading of the American innocence movement which kind of you know says
look due process was obviously a failure right Miranda hasn’t prevented false
confessions you know there’s some due process rights against suggestive
identification but we have all of these kind of DD DNA exonerations I actually
think that what we need to do is not throw out the due process maybe with the
bathwater but also recognize that due process itself is not has not been as
discriminating in picking up innocence as it should be and so my instinct would
be to kind of add you know both right and to avoid where possible the battles
between the two which is why you know I I think the battle that’s been fought in
the UK between innocence projects and the CCRC
is really quite unfortunate I think it would have been much more constructive
if the innocence projects had said look we keep putting these cases to you
they’re not getting picked up what do we need to change in terms of rules of new
evidence what do we need to turn a change in terms of Appeal standards of
safety right so I recognize that there is a kind of tension but I think that we
should be kind of working towards I kind of include inclusivity and what I worry
about some of the political economy of some of the American innocence projects
is that they gain donations and the gain public support to the extent that they
have some support from the crime control side of the ledger right so it’s a very
powerful statement in the American context for kind of a hardened
prosecutor to say I’m concerned about wrongful convictions and of course why
he or she is concerned about wrongful convictions is assuming the crime has
been committed it means that some somebody has gone gone gone gone free
whereas you know you know in Canada I think you know traditionally although I
frankly have misgivings about innocence Canada’s change of name and I think a
lot of that was done for fund raising imperative zuv which I have some some
some some sympathy I think in Canada we’ve been able to kind of balance you
know we want to you know we want our innocence but we also want our due
process to but but it’s it’s a delicate balance yes just have a question to pick up on what
you said about the remedial side and how there hasn’t been much work done on a
remedies first approach to analyzing wrongful convictions I wonder if you
could comment on how damages remedies or how you know expunging a criminal record
how those things might drive the analysis and the distinction between
factual innocence and you know a rights-based conviction that as you said
may not play to factual innocence and public perception yeah well I mean I
mean I mean you know in Canada the the federal provincial guidelines do require
factual innocence but they’re often ignored and justice Robbins in his
report on the Stephen Truscott case basically said I’m not going to require
a factual innocence because of course the Court of Appeal also did not make a
declaration of factual innocence in trust bonds case just like it didn’t in
Mullins Mullins Johnson in the UK now there is a statutory requirement of
proof of factual innocence now so my worry is that if if there is a hard cap
requirement of factual innocence that’s going to you know basically limit cases
to you know perhaps DNA cases or cases where there are other kind of definitive
evidence of innocence and of course DNA cases largely sexual assault murder
cases are you know obviously important but we don’t have those mechanisms for
your standard running robbery or or or or so on now the damage
award I mean if you think about the Henry case is interesting because you
know damages don’t have to be tied to factual innocence use process sort of
malicious prosecution tort does but mr. Henry got the vast majority of his
damages simply through charter damages and of course now you know the issue of
his factual innocence is being contested before the courts so again I mean I
guess what I’m saying is that a miscarriage of justice project to borrow
Ben’s phrase would would be one that would be sensitive to all of these
different avenues right and with sometimes you know where the factual
innocence card is present and can be played would do that but would also be
some supple in a way that recognizes that there are some cases where factual
innocence is is essentially unprovable right I mean one things I’ve talked
about in terms of terrorism and I talked about in the paper on Clive Walker is
that you know one of the interesting or disturbing things is you know we’ve been
going at counterterrorism pretty hard since 9/11 but there’s no cases there’s
no no renown cases of wrongful convictions post 9/11 to match the
Birmingham six or the Guildford four and so one of the reasons so then you have
to ask why is that so right well one hypothesis is it’s too soon to tell but
as each year goes by right probably not the other hypothesis which is even more
disturbing is statutory inchoate offenses have basically come pretty
close to defining in us it’s out of existence and again if
you’re living in a factual innocence world you have no way to kind of move
against that right and you know the national exoneration registry of
wrongful convictions I looked it up this morning they do have one terrorism case
the Detroit sleeper cell but that was simply because the Justice Department
decided to thinking the convictions because of a non-disclosure violation
and so one of my one of my worries about a factual innocence model is it may be
designed for a world that in some ways no longer exists if everything is
defined as statutory and Kure defenses based upon risk levels where I mean how
can you say that you’re innocent any further questions well if not please
join me in thanking Kent very much for a very thought-provoking

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