WRONG CONVICTIONS: Implications for forensic medicine

1. WRONG CONVICTIONS: Implications for forensic medicine 5th ICFMO International Conference Semarang, Indonesia April 2-3, 2013

2. Sword: Authority and power Scales: Weigh competing claims Blindfold: Impartiality; fairness

3. Innocence Projectwww.innocenceproject.org • Benjamin Cardozo School of Law, New York • Now a separate NGO • 1992 – March 24, 2013: 305 post conviction DNA exonerations • Emphasis of the project is on innocence, not simply unsafe convictions, hence the heavy reliance on DNA • This biases the cases: cases where DNA deposited, detected and relevant: rapes, rape-homicide, homicide.

4. Innocence Project • Average sentence served at the time of release is 13 years • 70% belong to minority groups • In 50% of cases the actual perpetrator has been identified by the DNA testing which led to the exoneration!! • Exonerations are running at 15-20 per year since 2000

5. Innocence Project • More exonerations occur in places where there is a requirement for biological crime scene evidence to be retained, even after all appeals have been exhausted. (48 states now have post conviction DNA access laws) • Budget of $12m ($6m cash, $6m donated services – mainly law firms); 50 staff • Actively evaluating 10,000 cases

6. Innocence Project • According to the Innocence Project website, its “mission is nothing less than to free the staggering numbers of innocent people who remain incarcerated and to bring substantive reform to the system responsible for their unjust imprisonment”

7. TABLE 1: 86 DNA exoneration cases analysed by the US Innocence Project – Cardozo School of Law ** particularly problematic sciences were: hair and fibre analysis; blood spatter analysis; shoe print identification; bite mark comparison evidence

8. Appeal courts: 200 IP cases • In 67 cases: Appeal denied with no written reasons or ruling at all. • In 63 cases: Court described the appellant as guilty • In 12 cases: Appellate court referred to overwhelming evidence of guilt • In remainder: appeal without merit; errors were harmless

9. Innocence Project What does it mean for Australia? Or your country? Have we/you got a staggering number of wrongly convicted people in our jails? Who knows. We have no mechanism for finding out. On the evidence of the IP, no grounds for complacency in Australia. We rely on the difference in our systems and legal cultures to reassure ourselves that the problem could not be as bad as that in Australia.

10. The Criminal Cases Review Commission (CCRC) http://www.ccrc.gov.uk/ • One of the very few governmental post conviction review mechanisms; certainly the largest.

11. TABLE 3: Outcome of cases referred by the Criminal Cases Review Commission and heard by the Court of Appeal 1997-2011 (and pro rata numbers for Australia)* *E, W and NI - 56.3m: 22.3m Australia in 2010

12. CCRC • Emphasis is on safety of the conviction • Very few DNA cases Systemic problems referred to by the CCRC: • Insufficient or misguided investigation • Fabricated or suppressed evidence • Misconceived expert evidence • Confessions obtained through duress • The commonest basis of referral to the Court of Appeal remains non disclosure of material evidence at the trial. There is also a growing trend of ‘what might be termed mistaken expert evidence’

13. CCRC • ‘Mistaken convictions are not a relic of some bygone era. They are still with us and they remain as serious and shocking as ever’ (Chairman’s Foreword, Annual Report 2010.)

14. What does the CCRC experience mean for Australia? or your country? • We do not know the level of wrong convictions in Australia as we have no mechanism for finding out • The CCRC experience shifts the burden to those who oppose any such mechanism to produce evidence that positively differentiates our justice system from that in England to therefore establish that the pro rata numbers in Australia, as set out above, would not apply.

15. What about Canada • Perhaps our CJS reflects more the robustness of the Canadian system? • Goudge Inquiry – DrSmith • It took 15-20 years for a sophisticated CJS to realise he was incompetent • Regarded in legal and medical circles as a ‘guru’ • 10 convictions unsafe, and the character of others had to be modified

16. Fingerprints under scrutinywww.thefingerprintinquiryscotland.org.uk • Sir Anthony Campbell’s 800 page report of his 2011 Fingerprint Inquiry in Scotland • A fingerprint at a murder scene was regarded as placing a policewoman, who attended following the murder, right inside the house near the body, and a second print of hers was reported being found on a money jar originating from the victim’s house found in the house of the accused– the policewoman was adamant that she never entered the house, and had never had anything to do with the money jar. She gave evidence to that effect at the murder trial, following which she was charged with perjury, but acquitted.

17. Fingerprints under scrutiny • The inquiry concluded that there was no evidence that she had ever entered the house or ever touched the jar. • The prints had been misidentified. • The basis for concluding the match was inadequate, although it satisfied the standards of the service at the time.

18. 86 recommendations • 1. Fingerprint evidence should be recognised as opinion evidence, not fact, and those involved in the criminal justice system need to assess it as such on its merits. • 2. Examiners should discontinue reporting conclusions on identification or exclusion with a claim to 100% certainty or on any other basis suggesting that fingerprint evidence is infallible. • 3. Examiners should receive training which emphasises that their findings are based on personal opinion; and that this opinion is influenced by the quality of the materials that are examined, their ability to observe detail in mark and print reliably, the subjective interpretation of observed characteristics, the cogency of explanations for any differences and the subjective view of ‘sufficiency’.

19. Implications • The adversarial system does not have strongsafeguards to prevent adverse decisions based on poor expert evidence. • This emphasizes the seriousness of our task • Essentially, forensic service institutions/VIFM are facilitators of expertise • Institute’s job is to ensure that the necessary professional experiences, tools and supports are available to enable the various experts to do theirjob as well possible.

20. How to stop poor forensic medicine escaping from the Institution • How do you KNOW your staff are doing good work?? • Probably can never know for sure, but the existence of a QUALITY SYSTEM is the best way to give you some comfort • Standards; documented policies and procedures; audits – to check compliance with standards; system of improvement and corrections when deviations from standards discovered

21. How to stop poor forensic medicine once it has left the Institution?? • Needs to be a strong, ethical defence sector • QS needs to be applied to the provision of expert evidence (nb – in some systems little role for experts in court): colleagues listen to and critique oral evidence; review transcripts; • BUT WE NEED TO KNOW WHAT THE ISSUES ARE

22. Procedural gap: we most often know neither the detailed facts, nor the issues in the case. Thus, when evaluating reports for Q purposes, or when accompanied to court for Q purposes, we cannot truly know how we have performed. How are we approaching this in Melbourne??

23. At the moment, it is a matter of individual judgement just what to include in the comments part of an expert report. In some parts of Australia, pathologists for example, make no comments and wait until the committal or trial. • It is possible to anticipate some of the issues at least, in particular case types, and to ensure they are addressed– this should be more formalized in structured reports designed for particular case types eg alleged child abuse

24. What is the cause of death? • What are the key physical findings at autopsy in this case? • How did the physical findings at autopsy lead to your conclusion about the cause of death in this case? • How did you ascertain these features were present? 5. Is the existence of the described features verifiable? 6. Are the findings beyond the scope of the individual pathologist? If so, who else or what else is being relied on? Is there a clear chain of custody in relation to samples sent for special testing?

25. 7. Are the observed findings due to artefact, natural disease or injury?Explain why they could or could not be due to artefact natural disease processes. 8. Are the observed findings of injury due to intentional harm in this instance? 9. How certain are you, as the pathologist in this case, that the observed findings of injury are due to intentional harm in this instance? 10. Have the features of this case ever been described in the literature as being non- intentional?

26. 11. Is the evidence/research base relied on in this case unequivocal and definitive?What are the known limitations of the research these conclusions are based upon? 12. Would your peers come to the same conclusion based on the observed physical findings detected at autopsy?Explain why or why not.

27. Do we need to be more active to ensure the system understands what we say?? • Yes, but will require courts and lawyers to join with us in this task.