Wrongful Convictions Research Articles

AAFS (Victorian branch) Symposium: Science and Medicine in the Courts—Learning from the wrongful conviction of Kathleen Folbigg

ABSTRACT Kathleen Folbigg spent 20 years in jail, wrongly convicted for smothering her four infant children. An unprecedented second judicial Inquiry found they died naturally. New genetic and psychiatric evidence unlocked the wrongful conviction, but it was always questionable. A Symposium held by the AAFS (Victorian Branch) detailed the timeline of the numerous events, then identified and discussed the issues. What were the failings and why were they missed? What part did expert witnesses, judges and lawyers play in this wrongful conviction? Did the prosecution appeal to misogyny? How did the first Inquiry get it so wrong? How did it fail to correctly understand the genetics? Was Ms Folbigg treated disrespectfully, and if so, what did that mean about fact finding? How did the failures of disclosure affect the original conviction and its various appeals? What explains the NSW Court of Appeal’s decision to reject an appeal based on jury misbehaviour during Ms Folbigg’s trial? Should we be more careful about the language we use in criminal trials? There was general agreement that the frailties of Kathleen Folbigg’s convictions were readily visible from the beginning. Will the criminal justice system learn the lessons that emerge from this case?

The partial abolition of the rule in Hollington v Hewthorn in Seychelles and the admissibility of criminal convictions in civil trials: Analysing s. 29 of the Evidence Act

Section 29(1) of the Seychelles Evidence Act provides that a criminal conviction is admissible in civil proceedings as evidence that the person who was convicted committed the offence in question. Thus s. 29(1) partially reverses the rule in Hollington v Hewthorn. Section 29(2) of the same Act provides that ‘[i]n a trial, other than in a civil trial for defamation, in which by virtue of this section a person…is proved to have been convicted of an offence by or before a court in the Republic, he shall be taken to have committed that offence unless the contrary is proved.’ The Supreme Court held that s. 29 ‘imported’ s. 11 of the United Kingdom Civil Evidence Act (1968) ‘into our laws’. In this article, the author demonstrates how courts have interpreted s. 29. He also suggests ways in which s. 29 could be interpreted to deal with foreign convictions. He argues that notwithstanding s. 29, the Hollington Rule is still applicable to earlier civil findings. Thus the findings of a court in earlier civil proceedings are inadmissible in subsequent civil proceedings. In Esparon v Philo, the Court of Appeal, the highest court in Seychelles, interpreted s. 29(2) in a manner that creates room for the argument that a person who challenges the admissibility of his conviction in civil matters has to prove his/her innocence. It is argued, inter alia, that the Court's decision should not be interpreted as imposing this very high threshold. It is enough if he proves that the person's trial was a miscarriage of justice.

The contribution of facial recognition technology to wrongful arrests and trauma.

When a crime is captured on video, law enforcement agencies increasingly have used facial recognition technology (FRT) to generate suspects to investigate. However, there are increasing examples of people who have been wrongfully arrested based because of the inaccurate results returned from these artificial intelligence-assisted searches of facial databases, despite very low error rates in the accuracy of these systems. We discuss the reliability of the evidence provided by a match returned by FRT, propose a framework for identifying potential problems with the use of FRT in criminal investigations, and review the research on the general trauma that comes from justice system involvement, trauma that is compounded by wrongful arrest and conviction. We also provide an analysis of how database size affects the evidentiary value of the matches returned by FRT. Variables like facial database size, race of the culprit, and quality of the probe photo can increase the likelihood that FRT systems will return false positive matches. The use of FRT for developing suspects in criminal investigations is likely to exacerbate the already profound racial disparities in the outcomes produced by the criminal legal system and increase trauma experienced by those who are wrongfully arrested or convicted. We recommend extreme caution surrounding its use. In addition, we call for more research on the trauma associated with wrongful arrest, which is likely to occur with the current use of FRT. (PsycInfo Database Record (c) 2024 APA, all rights reserved).

Warnings from the West: Identification and Expert Evidence as Causes of Wrongful Convictions and the Implications for South Africa (Part 2)

In Part 1 of this study, the existing literature on eyewitness misidentification evidence as a cause of wrongful convictions, as well as adversarial safeguards upon which criminal justice systems rely to identify errors in fact-finding, are reviewed. In Part 2, a similar investigation is conducted of improperly applied and faulty forensic expert evidence in criminal trials in the comparator countries, and how such evidence contributes to legal and root causes of injustice. Parallels are drawn to the adversarial system as it functions in South Africa and predictions are offered regarding the possibility that in South Africa too, the reliance on questionable expert evidence and the sometimes over-reliance on valid expert evidence may lead to wrongful convictions. Worldwide, much effort has been invested in developing admissibility criteria for expert forensic evidence. In the United States of America, for example, more than 100 years of admissibility jurisprudence has been dedicated to developing admissibility standards that would filter out unreliable evidence. Yet our investigation reveals admissibility criteria have had less success than expected. We also investigate the abilities and inabilities of cross-examination and acquired defence expertise to reveal errors in forensic evidence. The article concludes with critical commentary on the way forward for the South African criminal justice system.

Mistakes in Personal Identification Attempts

The following study is meant to present the most frequent mistakes (dangers) of identity parades (line-up, recognition) and their possible consequences, such as for instance the worst outcome: justizmord, (miscarriage of justice). The author analyses sources of criminal tactical and criminal technical major errors through real international and Hungarian homicide cases and suggests legislative changes “de lege ferenda” as well as preventive methods and tactics for law enforcers and criminalists as well.

Examining Wrongful Convictions Based on Fingerprint Evidence

Fingerprint evidence has long been seen as a cornerstone of forensic science, valued for its unique traits and reliability. However, some wrongful conviction cases reveal significant flaws in how fingerprint evidence is collected, interpreted, and relied upon, highlighting its limitations. This article reviews key cases like those of Brandon Mayfield, Stephen Cowans, and Shirley McKie, where mistaken interpretations led to serious injustices. Contributing factors to these erroneous convictions include unclear or incomplete prints, personal biases, laboratory errors, and systemic issues within fingerprint databases. Moreover, cognitive biases can influence analysts' judgments, especially in high-stress scenarios. To improve accuracy and ensure justice, the forensic field must refine evidence collection techniques, enhance examiner training, establish reliable databases, include independent witnesses in searches and seizures, record processes with video documentation from scene of crime to the forensic laboratory, and support fingerprint evidence with additional methods along with improved protocols, blind testing, and independent verification to mitigate risks and preserve the reliability of fingerprint evidence in the justice system. While fingerprints remain vital in forensic investigations, it’s crucial to reevaluate their use to prevent future wrongful convictions.

An ecological understanding of wrongful convictions in the U.S. criminal justice system

An ecological understanding of wrongful convictions in the U.S. criminal justice system

An end to finality? Options for overturning wrongful convictions

An end to finality? Options for overturning wrongful convictions

Lived experiences of bias in compensation and reintegration associated with false admissions of guilt.

Some exonerees receive compensation and aid after being exonerated of their wrongful convictions, and some do not. Looking beyond differences in state statutes, we examined possible reasons for biases in receiving compensation (via statutes or civil claims) and other reintegration services. More specifically, we examined how two unique types of false admission of guilt (i.e., false confessions and false guilty pleas) could be associated with biased outcomes in compensation procurement and reintegration outcomes. Although we did not have formal hypotheses for this qualitative study, based on the cumulative disadvantage framework (Scherr, Redlich, & Kassin, 2020), we anticipated that both types of false admission of guilt would negatively bias exonerees' experience post-exoneration. More specifically, we expected that exonerees whose cases involved at least one type of false admission of guilt would have a more difficult time obtaining compensation and would experience more negative post-exoneration outcomes, compared with exonerees in general. We conducted in-depth interviews with three samples: (a) exonerees (n = 19), (b) attorneys who had assisted exonerees with post-exoneration compensation claims (n = 15), and (c) innocence advocates who had worked with exonerees (n = 9). Across all samples, interviewees indicated that both forms of false admission of guilt are associated with biases that may influence exonerees' compensation and reintegration efforts. Specifically, interviews revealed that (a) false admissions are associated with disadvantages to exonerees' compensation and reintegration efforts, as predicted by the cumulative disadvantage framework; (b) under specific circumstances, false admissions are associated with advantages benefiting compensation attempts; and (c) false admissions can be nonapplicable (i.e., irrelevant) to reintegration efforts. Together, our findings provide a more nuanced understanding of the role false confessions and false guilty pleas may play post-exoneration. This understanding, derived from those individuals directly involved in the compensation and reintegration processes, is an important step in beginning to right the injustices experienced by those wrongfully convicted. (PsycInfo Database Record (c) 2024 APA, all rights reserved).

Challenges to the Contemporary Death Penalty in the United States

This review focuses on empirical research about contemporary challenges to the death penalty in the United States. Challenges are factors that obstruct capital punishment, including legal or political restrictions; elimination at the federal or state level; or the hindrance of the process at its operational stages of charging, adjudicating, appeals, clemency, or executions. By the best-known measures, the death penalty has been in decline in the United States since the turn of the century. Lethal injection errors—“botches”—are arguably the most important current challenge to the institution. Wrongful capital conviction has made capital punishment less tolerable to the general public. Mitigation remains an important challenge to the death penalty. This review emphasizes botches, innocence, and mitigation but also touches on disparate impact, failure-to-deliver a social benefit, and cost. Along the way, this review proposes a framework for considering challenges as they occur on two continua of impact, a micro/meso/macro axis and a narrow/wide axis.

The problem of post-conviction review in Australia

Kathleen Folbigg’s recent acquittals for multiple homicides have rekindled the debate over the adequacy of post-conviction review in Australia. This article explores the constraints of the finality principle and the appellate system in Australia in addressing potential wrongful convictions, including the impact of managerialist policies. The authors discuss the limitations of an independent criminal case review commission model. They argue that the debate should be centred on the inadequacy of legal aid as a significant risk factor for wrongful convictions, the need for less restrictive appeal criteria, and developing consistent and transparent processes for the retention and retrieval of evidence.

Eyewitness Testimony – How Reliable is It?

This paper examines the intricacies associated with eyewitness testimony in legal settings, emphasizing its crucial role as evidence while also addressing its fundamental limitations. An eyewitness is described as an individual who witnesses an event firsthand, and their description can greatly influence the court's decisions. Nevertheless, factors such as stress, racial bias, focus on firearms, and memory lapses can compromise the accuracy of these accounts. The article analyses the legal framework established by the Bharatiya Sakshya Adhiniyam, 2023, which pertains to the competency of witnesses and the reliability of their testimonies. An analysis of the prominent wrongful conviction case of Ronald Cotton, highlights the fallibility of human memory. Furthermore, a review of pertinent psychological studies indicates that eyewitness memory is reconstructive and susceptible to inaccuracies. The necessity for corroborative evidence, expert opinions, and enhanced identification processes is highlighted as a means to improve the reliability of eyewitness testimonies and reduce wrongful convictions, thereby upholding the integrity of the trial process. In summary, this study advocates for a thorough reassessment of eyewitness testimony within a wider legal context to ensure justice.

The Regulatory Offence Revolution in Criminal Justice: The Choice Architecture of Regulatory Offences

Courts, scholars, and lawyers tend to overlook one of the most salient features that differentiate crimes and regulatory offences: choice architecture. The concept of “choice architecture” refers to how the presentation of options shapes decision-making. This article argues that crimes and regulatory offences employ different forms of choice architecture in the criminal justice process. It advances three core arguments. First, in the charging and plea phase, regulatory prosecutions nudge defendants to plead guilty by default, while criminal prosecutions automatically enrol defendants into non-guilty pleas. Second, when assessing culpability (or moral fault), regulatory prosecutions incorporate inculpatory default rules that presume guilt and foster efficiency. In contrast, criminal prosecutions incorporate exculpatory default rules that presume innocence and aim to prevent wrongful convictions. Third, in the context of sentencing, impecunious defendants who are charged with a regulatory offence must often opt in to receive a proportionate sanction. Outside of mandatory minimum sentencing contexts, defendants who are charged with a crime enrol into a sentencing scheme that considers proportionality constraints by default. Ultimately, this article deepens our understanding of the different choice architecture that governs crimes and regulatory offences, and lays the foundation for future scholarship that explores the criminal justice system’s choice architecture more generally.

HUMAN RIGHTS AND CRIMINAL PROCEDURE

Human rights in criminal processing are crucial for ensuring justice and protecting individual freedoms within legal systems. This paper examines the integration of human rights standards throughout various stages of criminal processing, from arrest and investigation to trial and sentencing. It highlights key rights, such as the right to be free from torture and inhumane treatment, the right to legal representation, the right to be informed of charges, and the presumption of innocence. The influence of international human rights instruments, including the Universal Declaration of Human Rights (UDHR) and the on Civil and Political Rights (ICCPR), on shaping national policies and practices is explored. Additionally, the paper addresses contemporary issues such as discrimination, wrongful convictions, and the impact of technological advancements on privacy rights. The study underscores the need for continuous reforms and robust oversight mechanisms to ensure that criminal processing aligns with human rights principles, ultimately fostering a fair and equitable justice system.

Preventing Miscarriage of Justice Using Artificial Intelligence in Pakistan

A miscarriage of justice is considered a situation when an incorrect decision has been made in a trial, and a guilty person is sentenced and punished. This is a very common problem in the criminal justice system of Pakistan, which has not been rectified for a very long time. In spite of measures being taken in the quest to eliminate such occurrences, miscarriages of justice are apparent for various causes, including wrong eyewitness identification, tainted confessions and inadequate counsel. The failure of justice is a denial of rights as well as the offenders to justice compartments the system's credibility. In recent years, with the aid of stiff progress in artificial intelligence (AI), it seems probable that miscarriages of justice can be reduced by accurately and efficiently facilitating criminal justice. Hence, this research adopts a doctrinal method to analyze the factual position of the miscarriage of justice system in Pakistan. This work will be very useful in dealing with the problem of miscarriage of justice in Pakistan. Therefore, it can be claimed that by defining the causal factors of wrongful convictions and providing specific recommendations, this study may help build a more efficient and just criminal justice system in Pakistan.

A Miscarriage of Justice: Women's Reproductive Lives and the Law in Early Twentieth Century Brazil

A Miscarriage of Justice: Women's Reproductive Lives and the Law in Early Twentieth Century Brazil

Arabic within culture forensic interviews: Arabic native speaking lay-observer truth and lie accuracy, confidence, and verbal cue selection.

Cross cultural differences in behavioral and verbal norms and expectations can undermine credibility, often triggering a lie bias which can result in false convictions. However, current understanding is heavily North American and Western European centric, hence how individuals from non-western cultures infer veracity is not well understood. We report novel research investigating native Arabic speakers' truth and lie judgments having observed a matched native language forensic interview with a mock person of interest. 217 observers viewed a truthful or a deceptive interview and were directed to attend to detailedness as a veracity cue or given no direction. Overall, a truth bias (66% accuracy) emerged, but observers were more accurate (79%) in the truth condition with the truthful interviewee rated as more plausible and more believable than the deceptive interviewee. However, observer accuracy dropped to just 23% when instructed to use the detailedness cue when judging veracity. Verbal veracity cues attended too were constant across veracity conditions with 'corrections' emerging as an important veracity cue. Some results deviate from the findings of research with English speaking western participants in cross- and matched-culture forensic interview contexts, but others are constant. Nonetheless, this research raises questions for research to practice in forensic contexts centred on the robustness of western centric psychological understanding for non-western within culture interviews centred on interview protocols for amplifying veracity cues and the instruction to note detailedness of verbal accounts which significantly hindered Arabic speaker's performance. Findings again highlight the challenges of pancultural assumptions for real-world practices.

The ‘Manifest Injustice’ Clause in Article 4 of the Hague Convention on Private International Law: Applicability in International Commercial Contract Disputes

This paper critically examines the ‘manifest injustice’ clause in Article 4 of the Hague Convention on Choice of Court Agreements, focusing on its applicability in international commercial contract disputes. The clause serves as a safeguard to ensure fairness in choice of court agreements by allowing courts to set aside agreements that result in unjust outcomes for one of the parties. The paper explores various contexts in which this clause applies, such as situations involving unequal bargaining power, fraud, duress, coercion, procedural injustice, and unconscionable terms. It also discusses the significant legal challenges associated with its application, including the lack of a clear definition, variability in judicial interpretation, conflicts with the principle of party autonomy, and evidentiary burdens. The paper concludes that while the ‘manifest injustice’ clause is a critical tool for promoting fairness in international commerce, its effectiveness depends on the development of clearer guidelines and more consistent jurisprudence to harmonize its interpretation across jurisdictions, thereby enhancing its role in ensuring justice and equity in cross-border contractual relationships.

Forensic Science and How Statistics Can Help It

ABSTRACTThe persistent issue of wrongful convictions in the United States emphasizes the need for scrutiny and improvement of the criminal justice system. While statistical methods for the evaluation of forensic evidence, including glass, fingerprints, and deoxyribonucleic acid, have significantly contributed to solving intricate crimes, there is a notable lack of national‐level standards to ensure the appropriate application of statistics in forensic investigations. We discuss the obstacles in the application of statistics in court and emphasize the importance of making statistical interpretation accessible to non‐statisticians, especially those who make decisions about potentially innocent individuals. We investigate the use and misuse of statistical methods in crime investigations, in particular the likelihood ratio approach. We further describe the use of graphical models, where hypotheses and evidence can be represented as nodes connected by arrows signifying association or causality. We emphasize the advantages of special graph structures, such as object‐oriented Bayesian networks and chain event graphs, which allow for the concurrent examination of evidence of various nature.

An audit study of barriers to mental health treatment for wrongly incarcerated people.

People who have been wrongly incarcerated report exceptionally poor mental health, and despite having been exonerated, they face discrimination similar to other formerly incarcerated people when seeking housing and employment opportunities. The current audit study was designed to test whether exonerees likewise face discrimination when seeking mental health treatment. Therapists will reply less often to treatment inquiries from exonerees and parolees compared to another prospective client with the same symptoms and trauma history-and when therapists do reply, they will less often be willing to meet with exonerated or paroled help seekers. We emailed 752 therapists across the United States while posing as a man seeking therapy for the mental health symptoms most commonly reported by exonerees. By random assignment, this help seeker had been either incarcerated and paroled, wrongly incarcerated and exonerated, or working as a first responder (control). For each email, we noted whether the therapist replied and, if so, the speed and length of the reply. We also content analyzed all replies for predetermined themes, including willingness to meet. Overall, therapists replied less often to exonerees (50.6%) than to first responders (62.9%) or parolees (61.1%), who did not differ (V = .11). Therapists' replies also differed in their willingness to meet (V = .13), such that inquiries from first responders would more often result in a meeting with a therapist (31.7%) compared with inquiries from exonerees (19.6%) or parolees (21.0%). Exonerees' staggering rates of mental illness may be compounded by lesser treatment access. Therapists' reluctance to assist exonerees may reflect stigma and/or perceived incompetence. Our data highlight the need to destigmatize wrongful conviction, empower clinicians to treat exonerated clients, and advance legislation and other means to expand exonerees' access to mental health care. (PsycInfo Database Record (c) 2024 APA, all rights reserved).