MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Wrongful Convictions 5
convictions—acting as a contributing factor in half of the cases in which
inmates have been exonerated through DNA testing. 7
How can this be? After all, aren’t these the men and women in white
lab coats who tirelessly pursue justice through independent, truth-seeking
scientific and medical processes? What has happened? Has science and
medicine failed to live up to the standards demanded by the courts and
expected by the public? Or have we expected too much of the forensic
sciences?
Perhaps the weakest form of forensic science traditionally relied upon
by police and prosecutors is known as “forensic microscopy”. In its
simplest terms, forensic microscopy involves the side-by-side comparison,
under a microscope, of a “known” substance, often strands of hair taken
from a suspect, to other strands of hair, the “questioned” evidence, taken
from the crime scene. The object is to see if the two groups of evidence
came from the same source. The probative value, it is argued, is simply
this: if there is a “match”, the suspect must have been at the crime scene,
often despite repeated denials by that person.
Law enforcement agencies throughout North America regularly used
this comparative procedure as an investigative tool. Hairs, for example, are
routinely shed, and thus are capable of being transferred from an
individual to the crime scene, and from the crime scene to an individual. 8
During the 1970s and 1980s, and into the 1990s, the policing community
7
A conclusion made on the basis of the first 232 persons in the US exonerated through
post-conviction DNA testing: The Innocence Project, “National Academy of
. At the time of writing,
June 2012, there have been 292 post-conviction exonerations in the US.
While the statistics in Canada and elsewhere tend to be more anecdotal than
systemic, it is clear that flawed forensic evidence has played a significant role in other
countries: in Canada: Morin: (hair and fiber played a major role); Lamer Commission
(forensic practices); Driskell (hair microscopy); Goudge Inquiry (pathology). In
Australia, the Royal Commission of Inquiry into Chamberlain Convictions (1987)
(blood analysis); in New Zealand, the Royal Commission to Inquiry into the
Convictions of Arthur Allan Thomas (1980) (bullets and rifling), and in the U.K., a
series of tragic wrongful convictions due to faulty if not malicious pathology. I have
described several of these cases, along with equally disconcerting miscarriages of
justice involving alleged IRA sympathizers in the UK, in: “Convicting the Innocent: A
Triple Failure of the Justice System” (2006), 31:3 Man LJ 403 at 417–421 and 454–
465.
8
NRC, supra note 6 at 155-156.