Wrongful Convictions.pdf - Robson Hall Faculty of Law

Wrongful Convictions 5convictions—acting as a contributing factor in half of the cases in whichinmates have been exonerated through DNA testing. 7How can this be? After all, aren’t these the men and women in whitelab coats who tirelessly pursue justice through independent, truth-seekingscientific and medical processes? What has happened? Has science andmedicine failed to live up to the standards demanded by the courts andexpected by the public? Or have we expected too much of the forensicsciences?Perhaps the weakest form of forensic science traditionally relied uponby police and prosecutors is known as “forensic microscopy”. In itssimplest terms, forensic microscopy involves the side-by-side comparison,under a microscope, of a “known” substance, often strands of hair takenfrom a suspect, to other strands of hair, the “questioned” evidence, takenfrom the crime scene. The object is to see if the two groups of evidencecame from the same source. The probative value, it is argued, is simplythis: 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 usedthis comparative procedure as an investigative tool. Hairs, for example, areroutinely shed, and thus are capable of being transferred from anindividual to the crime scene, and from the crime scene to an individual. 8During the 1970s and 1980s, and into the 1990s, the policing community7A conclusion made on the basis of the first 232 persons in the US exonerated throughpost-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 thansystemic, it is clear that flawed forensic evidence has played a significant role in othercountries: in Canada: Morin: (hair and fiber played a major role); Lamer Commission(forensic practices); Driskell (hair microscopy); Goudge Inquiry (pathology). InAustralia, the Royal Commission of Inquiry into Chamberlain Convictions (1987)(blood analysis); in New Zealand, the Royal Commission to Inquiry into theConvictions of Arthur Allan Thomas (1980) (bullets and rifling), and in the U.K., aseries of tragic wrongful convictions due to faulty if not malicious pathology. I havedescribed several of these cases, along with equally disconcerting miscarriages ofjustice involving alleged IRA sympathizers in the UK, in: “Convicting the Innocent: ATriple Failure of the Justice System” (2006), 31:3 Man LJ 403 at 417–421 and 454–465.8NRC, supra note 6 at 155-156.