Eyewitness Evidence as a Cause of Miscarriages of Justice in the UK - Literature review Example

? EYEWITNESS EVIDENCE AS a CAUSE OF MISCARRIAGE OF JUSTICE IN THE UNITED KINGDOM Miscarriage of justice is the punishment or conviction of an innocent person for the crime they did not commit. For a secure, just society it is significant that the criminal justice system is effective and fair. Miscarriages of justice has been attributed to many reasons in the United Kingdom such as faulty forensic tests, false confessions due to psychological weakness, false confessions due to police pressure and perjured evidence by the victim or their accomplices. Others reasons include, plea bargain which offer incentives for the innocent to plead guilty, prejudice towards the social class of people to which the defendant belongs , confirmation of bias by the investigators, over estimated evidential value of expert testimony and conspiracy between prosecutors and court of appeal judges to uphold conviction of an innocent person. (C. Ronald Huff, 2008, p. 80). There have been several cases of wrongful convictions because of untrue or distorted eyewitness evidence in the United Kingdom. This may include misidentification of the perpetrator by the witness or victims. This can have very serious implications to the person wrongfully convicted as sometimes the discovery of a wrongful conviction occurs after the innocent person has died in jail or executed. The wrongly convicted person and there family suffer real and irreversible effects. Because of the many cases of miscarriages of justice, there have been arguments against the death penalty that sees the wrongly convicted person executed promptly after conviction. An innocent person wrongfully convicted in the United Kingdom and jailed may be paid compensation for the time he or she was incarcerated, although, there is a statue that limits the most amount to be paid to five hundred thousand dollars. (Butterworths of New Zealand Ltd, 1991, p. 57). Cases in the United Kingdom such as the Greenberry Hill case where Green Robert, Henry Berry and Lawrence Hill were hanged in 1679 on false evidence for the unsolved murder of Edmund Godfrey. Sion Jenkins was acquitted in 2006 after a retrial because of inaccurate evidence in the case of the murder of Billie-Jo Jenkins. He had been convicted in 1998. (Knoops, 2006, p. 73). Before the year 2005 in the United Kingdom, the parole system assumed that all the convicted persons were guilty. For the convicted person to be paroled one had to sign a document in which the convicted person confessed to the crime for which they were convicted. There were cases of a prolonged stay in jail for the people who refused to sign this declaration. An example of a case of the people who were denied parole because of not signing the document of confessing to the crimes convicted for is the Birmingham six. The system has since changed since 2005 and the convicted persons who never admit guilt are being given parole (Webber, 2009, p. 143). There is no official law in the United Kingdom that provides a means of correcting a conviction based on insufficient evidence. In the 1990s, several high profile cases turned out to be miscarriages of justice because of distorted or fabricated eyewitness testimonies and evidence by the police. This was also done for the police to get a high conviction rate. In 1989, the West Midlands Serious Crime Squad was disbanded because of being involved in the practices that resulted to miscarriages of justice. Due to the many miscarriages of justice, several Innocence Projects have been established as well as the Criminal Cases Review Commission that was established in 1997 to look at the possible cases of miscarriages of justice in the United Kingdom. The Criminal Cases Review Commission is an independent body that is mandated to investigate suspected miscarriages of justice in the United Kingdom. It is estimated that the commission refers thirty cases every year to the appellate courts and seventy-five percent of these cases succeed. (Austin Sarat, 1998,p. 107 ). The use of eyewitness evidence is very significant and influential in the courtroom as they can function as the primary forms of evidence against a defendant. The risk of miscarriage of justice in the cases of false eyewitness evidence is that the jurors tend to believe in the testimony of the eyewitness. Bruce MacFarlane states, “The single most important factor leading to wrongful convictions is the eyewitness misidentification. There are very strong possibilities of erroneous eyewitness evidence and memory (Hudson, Justice in the risk society: challenging and re-affirming justice in late modernity, 2003, p. 68). Research shows that in the United Kingdom, the sixty-two cases that involved the conviction and imprisonment of people, fifty-two of them involved mistaken eyewitness identifications. This includes eight of them that had death sentences. These wrongly convicted people were acquitted of their charges because of proper use of DNA testing. Due to the rampant cases of false eyewitness evidence, the courts in the United Kingdom have recognized the weaknesses of eyewitness evidence that given by the witnesses. The Supreme Court of Canada stated that, “the cases are replete with warnings about the casual acceptance of eyewitness evidence even when such evidence is made by direct visual confrontation of the accused. By reason of the many instances where eyewitness evidence has proved incorrect, the Trier of fact must be aware of the psychological fact of the unreliability of human observation and recollection”. (Hudson, 2003, p. 84). Due to the cases of miscarriage of justice that were caused by mistaken eyewitness identification, a Departmental Committee was formed lead by Lord Devlin. In their report to the Secretary of state for the Home Department in 1976, the committee stated that “We are satisfied that in cases which depend wholly or mainly on eye-witness evidence of identification there is a special risk of wrong conviction. It arises because the value of such evidence is exceptionally difficult to assess; the witness who has sincerely convinced himself and whose sincerity carries conviction is often mistaken. We have found no forensically practical way of detecting this sort of mistake”. (Saundra Davis Westervelt, 2001, p. 105). Professor Graham Pike argues that eyewitness evidence can be unreliable and the key to understanding it lies majorly in the psychology of human memory. He states “Memory is not like a video of an event which can be replayed endlessly and is always perfect. Human memories alter over time and are very suggestible”. People’s memories are less reliable when they are subjected to stress. Many of people in the United Kingdom who have been wrongfully convicted because the people involved in the legal system and the juries who relied on upon common sense in the consideration of the issues that relate to memory of the eyewitnesses (Friedland, 2007, p. 460). Lord Gardiner is noted to have responded to the Devlin Committee Report of the United Kingdom on eyewitness evidence stating that “The danger of eyewitness evidence is that, anyone in this country may be wrongly convicted on the evidence of a witness who is seen to be perfectly sincere and perfectly convinced that the accused is the person he or she saw. Moreover, the witness’s sincerity communicates itself to the members of the jury who therefore accept the evidence. (Gillian Cohen, 2008, p. 92). The use of “line- ups” and photographs in the eyewitness identification procedures in the United Kingdom have been the subject of judicial compliance. A breach in the Codes of Practice on Identification may lead to disciplinary action against the officers who breach or even losing the case. According to the United Kingdom’s Police and Criminal Evidence act, the witnesses that are involved in the identification parade process are always told that the person they are looking for that might have committed the crime may or may not be in the parade line-up. This has proved by research to cut the cases of misidentification by the eyewitnesses. There is need to have an eyewitness expert testimony. According to Leippe, eyewitness expert testimony is “the delivery to a jury by a qualified research psychologist of information about research and theory on eyewitness behavior”. This is aimed at finding out if the eyewitness account of the event being investigated is admissible into court hence influencing the decisions of the jurors. This is because the jurors are believed to lack adequate information about the memory capabilities of the witness. (Joanna R. Adler, 2010, p. 17). The weakness of eyewitness evidence was shown in the Regina V. Forbes case in 2000 where Anthony Leroy Forbes was convicted of attempted murder by the jury and appealed to the court of Appeal Criminal Division. Although the court upheld much of his arguments, it dismissed his appeal. In the case, there was an objection to the evidence of the identification of Forbes in the street by the eyewitness Mr. Tabassum. This was because of the inconsistencies in the different descriptions he gave and because there was no identification parade, which was a breach was of paragraphs two of Code of D of the Codes of Practice (Kapardis, 2010, p. 243). In respect to eye witness identification in the United Kingdom there is a procedure to be followed by the law enforcement officers and prosecutors. The witness is required to show the suspect or the accused by live or photo spread line up procedure. The line up procedure follows two major steps: First, the witness describes in detail the distinctive signs of the suspected perpetrator. The witness is required to avoid giving general descriptions that will normally apply to a larger group of people (Masson & O'Connor, 2007, p. 260). After a clear detailed description in step one, the witness will be shown the line-up of people. The lineup procedures should take place in similar light conditions in which the witness first saw the suspect and the procedure repeated at least eight times with other people similar to the earlier identified suspect. The procedure should be recorded at all the stages. Issues with most eyewitness evidence include the confidence of the witness, the circumstances under which the witness first saw the suspected perpetrator, influence or suggestion to the witness, the passage of time since the first identification, identification by multiple witnesses and the inconsistencies or inaccuracies in witness testimony. (Ray Bull, 2009, p. 236). In a decision of the Judicial Committee of Privy Council in the United Kingdom, Lord Bingham emphasized on the need to avoid wrongful convictions that may result from false eyewitness evidence. This was because of the statement made by Rand in the Boucher V The Queen case that, “it cannot be over-emphasized that the purpose of criminal prosecutions is not to get a conviction but it is to lay before a jury what the crown considers to be credible evidence relevant to what is alleged to be a crime. The Counsel has a duty to see that all available legal proof of the facts is presented and it should be done firmly and pressed to its legitimate strength, but it must also be done fairly” (Cohen & Conway, Memory in the real world, 2008, p. 92). False eyewitness misidentification can be managed when the law enforcement officers are educated on the effective and efficient way of collecting eyewitness testimony. False eyewitness identifications can also result from the improper methods used by the officers to get information from the eyewitnesses such as poor lineups, repeated questions and suggestive questions. With a more enhanced protocol of questioning the eyewitness, there will be an increased accuracy in gathering the information from them thus reducing the cases of misidentification (Klip, 2005, p. 440). In reference to the classical experiment carried out by the psychologist Elizabeth Loftus, the witness gave different accounts of the events depending on how the question was asked. She discovered that when the question contained the phrase “when they smashed into each other” the witness was able to remember how fast the cars were travelling than when the question contained the phrase “when they hit each other”. This means that when you simply change the wording of the question posed to the witness influences the way they remember the event being investigated. This research has positively influenced the way the law enforcement officers carry out the witness evidence collection in the United Kingdom. For example, the law enforcement officers are now aware, that asking a witness a question such as “What color hat was the man wearing?” will make the witness to remember that the man was wearing a hat even when that was not the case (Gould, 2007, p. 206). The United Kingdom has put in place several strategies and adopted some recommendations to deal with the cases of miscarriage of justice. The government has implemented some of the recommendations made by the Committee on eyewitness evidence, while the implementation of others is under way (Davies & Davies, 2006, p. 12). The committee recommended that if possible the law enforcement officer who is independent of the investigations should be in charge of the lineup or photo spread. The lack of knowledge of the suspect by the officer helps avoid the possibility of hints or reactions that might lead to the witness giving the evidence before the identification takes place. The use of expert evidence on the weaknesses of the eyewitness is not necessary in the fact-finding process (Towl & Crighton, 2010, p. 172). The prosecution should give enough time for the witness to check all statements that were given before, and confirm that they were correct and a true account of the events. The prosecution should avoid interviewing witnesses collectively as this might result in giving hints or clues. The law enforcement officers, prosecutors and other legal officials should be trained on proper interviewing skills. The weaknesses and dangers of false eyewitness evidence should be incorporated in the training sessions. (Clive Walker, 1999, p. 98) In conclusion, it is with no doubt that procedural fairness is that foundation of the legal process. Miscarriages of justice caused by false eyewitness evidence will be considerably reduced if the necessary diligence is applied in gathering, cataloguing and presenting eyewitness evidence whereas recognizing its essential weaknesses. References Adler, J. R., & Gray, J. M., 2010. Forensic Psychology: Concepts, Debates and Practice. New York: Taylor & Francis. Bull, R., Valentine, T., & Williamson, D. T., 2009. Handbook of Psychology of Investigative. London: John Wiley & Sons. Butterworths of New Zealand Ltd., 1991. Butterworths current law. Wellington: Butterworths of New Zealand Ltd. C. Ronald Huff, M. K., 2008. Wrongful conviction: international perspectives on miscarriages of justice. Pennsylvania: Temple University Press. Cohen, G., & Conway, M. A., 2008. Memory in the real world. Bristol: Psychology Press. Cohen, G., & Conway, M. A., 2008. Memory in the real world. London: Psychology Press. Davies, G. M., & Davies, G., 2006. Practical Psychology for Forensic Investigations and Prosecutions. New York: John Wiley & Sons. Friedland, M. L., 2007. My life in crime and other academic adventures. Toronto: University of Toronto Press. Gould, J. B., 2007. The Innocence Commission: preventing wrongful convictions and restoring the criminal justice system. New York: NYU Press. Hudson, B., 2003. Justice in the risk society: challenging and re-affirming justice in late modernity. Michigan: SAGE. Hudson, B., 2003. Justice in the risk society: challenging and re-affirming justice in late modernity. London: SAGE Publications. Kapardis, A., 2010. Psychology and law: a critical introduction. London: Cambridge University Press. Klip, A., 2005. Annotated leading cases of international criminal tribunals: The International Criminal Tribunal for the Former Yugoslavia 2001-2002. London: Intersentia nv. Knoops, & J, G.-J. G., 2006. Redressing miscarriages of justice: practice and procedure in (international) criminal cases. Michigan: Transnational Publishers. Masson, A., & O'Connor, K., 2007. Representations of justice. United Kingdom: Peter Lang. Sarat, A., & Scheingold, S. A., 1998. Cause Lawyering:political commitments and professional responsibilities. new york: oxford university press. Towl, G. J., & Crighton, D. A., 2010. Forensic Psychology. New York: John Wiley and Sons. Walker, C., & Starmer, K., 1999. Miscarriages of justice: a review of justice in error. London: Blackstone Press. Webber, C., 2009. Psychology & crime. London: SAGE Publications Ltd, . Westervelt, S. D., & Humphrey, J. A., 2001. Wrongly convicted:perspectives on failed justice. New Brunswick: Rutgers University Press. Read More