The Principle of Call for Fairness in Legal Jurisprudence - Essay Example

THE LAW RELATED TO CASES OF MISTAKEN IDENTITY ILLUSTRATES A TENSION BETWEEN CALLS FOR CERTAINTY AND CALLS FOR FAIRNESS Introduction: Legal jurisprudence is facing a lot of challenges with ever growing knowledge base and scientific techniques in crime investigation and prosecution. Customary intelligence and wisdom is being challenged by improved and modern forms of evidence, which has questioned certain presumptions and principles of law. Principle of call for fairness is also challenged by growing means to ascertain the truth besides personal evidence of eye witness’ which are found in error in number of case and insistence is being placed on call for certainty, especially in case of criminal justice. It may be argued that methods to find the truth are not supplementary to each other and these should not be so, because there is nothing absolute. But at the same time mere insistence on any one of these methods could be disastrous. Cases as to mistaken identity, whatever the reason for the same may be, had resulted in number of convictions of innocent people in past and decisions of jury on question of fact has been questioned. No doubt, there was a time when eye witness was the only source to prove an occurrence of crime as well as the identity of the criminal, but today, it is not the case. DNA testing, audio visual aids, scientific investigatory gadgets like GPS etc. have provided additional complimentary tools to prove or unprove the guilt and these are attracting attention of jurists and law. The same is indicating a switch toward call for certainty rather than call for fairness in criminal procedures and establishment of guilt. Call for Fairness: Fairness implies that all rights of the accused in connection with the trails are secured. Defendant is provided a fair chance to prove his innocence by defending himself and contradicting the evidences provided by the prosecution. It also indicates consistency in application of law and non discriminatory attitude towards the parties. However, capacity of jury to make informed judgment about the fact of an incident and involvement of accused is largely dependant on evidence and its presentation by the attorneys on both sides. There might be all fairness on part of jury as it is based on proofs and testimonies of witnesses but can this fairness removes all the chances of wrong convictions? The answer is ‘NO’. There are always chances of wrong decisions and thus wrong convictions. So should there be any step further towards ascertainment of facts? The answer is definitely in affirmation. Fairness is not all about application of law and procedures in fair way, but also introduction of fair laws and procedures. Law is meant to promote the cause of justice and not to deny on basis of its inelasticity. Call for Certainty: The argument raised in last lines needs elaborations. When fairness as defined in books of jurisprudence and in legal dictums is not enough to secure true convictions on the basis of evidence and testimonies of eyewitnesses, jury must give due weightage to supporting evidences produced before the court by using scientific methods. Rather, it would be proper to say that where there are possibilities of using these scientific methods to find the truth, these must be used to corroborate the evidence. In case the results are conflicting, benefit of doubt should be given to defendant. There is definitely a call for certainty in conviction. A culprit may be given benefit of doubt but an innocent should not be penalized for crimes committed by other1. Mistaken Identity: Under criminal justice system, mistaken identity is a legal defense available to an accused and in order to establish the same, he is allowed to shake the reliability of eyewitness’. In his defense, an accused takes the plea that he has been wrongly identified as a culprit whereas he is not the actual culprit. This argument is usually supported by weak memory status of the witness, poor eye sight, presence of fear and other similar factors which can hamper the recognizing skills of a person. Similarly, mistaken identity in eyewitness identification evidence is a leading cause of wrongful conviction around the world. There are a lot of reported cases in which an accused was given sentences on basis of wrong identification by an eye witness, but there would be enamourous cases which have gone unreported even after the completion of sentence. There are, however, a few which has the mercy of fate and were exonetrated during trails. It is a research point that why such mistakes occur. Psychologists and sociologists are after this query along with the jurist to find out a viable solution to these mistakes. But before going into these causes and there impacts, it would be appropriate to look into some leading cases which have initiated this debate. In UK, a committee on Criminal Law Review has opined that cases of mistaken identification "constitute by far the greatest cause of actual or possible wrong convictions2. Then onward, we will be able to analyze the jury position in determination of a question of law and will discuses the role on new technology to answer this tension between call for fairness and call for certainty in criminal proceedings. Case of Adolph Beck: Adolph Beck case is one of the leading cases which had initiated debate upon the veracity of eyewitness and reliance upon the same. Is witness a reliable witness? If jury should rely upon eye witness only in order to ascertain whether accused is guilty or not guilty, especially when there are alternative modes of ascertaining the truth. For media, it was a trail case. Brief facts of the case are as under: On December 16th, 1895, police arrested Mr. Adolph Beck, when a lady accused him of having swindled her three weeks earlier. Eye witnesses recognized him as some John Smith who was sentenced already in 1877 for five years on the same charges. Although there was substantial variation in descriptions provided by the eye witness’ about that accused as some found that at time of occurrence, he was a bit thicker in size, here was a scar on his neck and report of hand writing expert who found Beck’s writing different from Smith’s. Handwriting expert, however, stated that he might be using a disguised writing. But nevertheless he was identified in identification parade as culprit. Jury relied upon the identification and on basis of previous criminal record, declared him guilty and he was sentenced for seven years. Irony of fate was still there and he was caught again for the same charges soon he was released from the jail. However, during his pre trail period, a policeman heard of same swindling in town and captured a man very much similar to one who was behind the bars. This time he was the actual culprit. Eyewitnesses recognized him and on basis of this new development, Beck was released. 3 Case of Ronald Cotton: In year 1984, Ms Thompson accused Mr. Cotton for rapping her. She narrated that the accused entered in her apartment, put a knife on her throat and rapped. On basis of her knowledge he recognized Mr. Cotton as her rapist as she tried to memorize his face during the whole episode because she wanted to bring him to task. During investigation, she helped the police to sketch her culprit and police on basis of that information, photographed the same and a person with the closest resemblance was caught up. He was Mr. Cotton. Ms. Thompson testified against him and relying upon her testimony and relying upon her testimony jury imposed punishment upon him. Mr. Cotton was not relived until eleven year of his punishment, when on basis of DNA test; it was proved that he was not the culprit.4 Though, in both the cases these people were recognized as innocent but what about the agony they faced? Is it possible to rectify? Can the time they spent in jail be given back to them? These are the questions which has initiated debate about fairness of trail and certainty of culprit. Possible reasons for mistaken identity: There could a number of reasons to mistake while identifying a person. It is quiet normal that due to resemblance we call a stranger as our friend and on coming close we realize that he is not our friend and we excuse. But Is it always possible that we may correct ourselves after watching closely? It may not be the case every time. These reasons vary from simple environmental factors to complex psychological ones. Besides, there are procedural lapses which provide chances of misidentification in case identification parade. Environmental factors: Environemntal factors can sometimes lead to mistaken identity as well. There can be poor lighting at a place where a crime happened which may cause a person to possibly see someone else and form the conclusion about his identity quiet differently. This can happen in case of people with less keen eye specially. Similiraly, distance from the crime scene is also very important in this regard. An eyewitness standing 100 feet away from the scene can not possibily see a person’s face as clearly as a witness standing only 10 feet away. There are certain other environemntal factors which may also cause a witness to make error in identifing the accused. Presence of fog or any other distortion may hamper visibility. Similarly, noise at the time of occurrence of crime may also distract a person from the minutes of the scene and may cause distortion in memory. It is now scientifically proved that noice or visual distortion can definitely hamper a person’s concentration as well as retention power. Physiological factors: An other factor which may lead to wrong identification is the physiological condition of the witness. A witness may be suffering from some physical disorder which may hamper his ability to remember the exact details of a crime. It is not necessary that he must be completely overpowered by a disorder; mere fever may cause nausea and flu which may ultimately cause weeping eyes and all these factors may hamper one’s ability to concentrate and recognize. If a person sees something in any of such situations, he might fall prey of error. It is the duty of the court and investigating authorities in such scenario to determine if any such occurance is hampering the witness’ ability to testify or not. Cross cultural identification: Researches have showed that people err in identification of persons from other races. To the European, all Chinese seem alike. Similarly, to Asians all Africans seem alike. Researches have proved a definite statistically significant “cross race impairment”, which showed that people from one race has a definite deficiency to differentiate among the people of races other than their own. The point of such researches is not to show any cultural biases but to show that psychological impacts and growth of minds in their own environment creat mental conditions where identifying a person becomes difficult.5 In such cases where such a situation exists, chances of mistaken identity increase manyfold. Stress: Stress is another factor which hampers witness’ capability to recognize or recall any event or any person. This stress can be either at time of occurrence of crime or at time of identification parade. Studies have proved that stress has a definite impact on memory of a person which is not often appreciated by the person who is in stress. In group studies to evaluate stress’ impacts on memory, people who were under high level of stress had maximum number of false identifications in photo lineup or in physical identification parade. Clearly, in the same study, people with least stress level were having minimum mistakes in identifications. 6 Fear of death and presence of weapon: Safety is the prime concern of a living being and in time of danger his first effort would be to avoid the threat. In case where there was a substantial fear of death of defendant or an eye witness was involved, recognition of culprit is compromised. As we have seen in case of Cotton narrated above, Ms. Thompson was under the threat of life and despite all her efforts she was mistaken about the culprit. Presence of weapon at crime scene has also often caused weapon focused effect7 upon the witness. In such a case, it is of little importance to the prey that who is holding the gun but the gun itself. Studies have proved the fact that in such a time, eye movement follows the weapon and not the person behind the weapon. Therefore, evidence in such cases is often found shaky and unreliable. Declining memory effect: It is found in psychological studies that decline in memory of a witness differ in rate as compared to common people. It is often countered by witnesses but it is proved. Forgotten curve drawn by psychologists in result of these studies indicated a sharp decline in memory of witness even in 20 minutes of the occurrence of an incident and reduced level of accuracy dramatically. Similarly, the shock factor also contributes towards this memory loss. This situation can be seen at the time of such incidences where witness cry and scream but are unable to speak in straight lines.8 Scentific investigation and certanty: Having discussed the causes of mistaken identification, lets have a look on those tools which can be beneficail in supplimenting the cause of certainty e.g. scientific investigation as in case of DNA testing. There are amazing results of use of this technique in criminal investigation and prosecution. Studies have shown that over 75% convictions were reverted on basis of this technique where there were charges of rap in Georgia. It simply resulted in biological identification of accused and the culprit. Similarly, use of video technology in pre trail and trial period results in securing of record which may result in digging out the truth. It is also noticed that in accusations of sex crime in jails, most of evidences are based on biases and prejudices, which often results in conviction of wrong people. Therefore, if there is any method to check the veracity of the truth -like audio video recording of inmates- it may reveal the reality. Such cases always need corroboration. Handwriting experts’ view or finger print analysis are some other methods to suport jury to reach a certain decsion based on facts. Proposals to strenghthen call for certainty: There are a number of studies conducted in order to remove discrepencies in law and procedures to ensure cause of true criminal justice and all these researches have forwarded their own proposals. Following are some of the major recommendations in this regard: 1 For police investigation methods and identification written policies and procedures for the conduct of photo and live lineups should be adopted. 2 Electronic recording be encouraged for both pre trail and post trail period to ascertain the truth. 3 Law should be modified to accommodate forensic evidences as corroborating evidences especially in case of crimes punishable with major penalty. 4 DNA testing may be allowed in post conviction scenario to ascertain the truth and to accommodate new evidences. 5 Personal witness should be corroborating with circumstantial evidences in order to be admissible to convict an accused. 6 In order to ensure post conviction justice, open files and automatic discovery system may be adopted. It is seen that in case of already decided cases, little heed is paid on any new discovery and even prosecution do not want to re open the case. It is therefore proposed that door shall be open for any new discovery of evidence or mode to ascertain the truth with new scientific research. 7 Biological evidences should also be preserved as other evidences so that may be used if required. 8 In all cases of rap and sexual harassment, DNA testing should be a requirement under law and any request of DNA testing from a convict should be accommodated for the sake of justice. 9 Code of norms and conduct for jury should contain proper guidance to understand technical evidences and its importance for the cause of justice.9 Conclusion: Mistaken identity would be there for time immemorial and convictions on basis of such mistaken evidences would be numerous in past. There was a time when these evidences were the only way to ascertain the truth. Fairness of procedures and law was equitable and wisdom of human being was in its evolutionary stages. Law was passing through its infancy and so was the case of science and technology. At the same time, Jury was very considerate towards the sanctity of an eye witness. However, now the methods to ascertain truth behind the scene have been improved to a certain degree. Although there are gadgets to detect lies but since its results are not yet accepted so insistence on its acceptability in evidence would be a little earlier but affectivity of DNA test and such other tools have been accepted universally and these should be there as a matter of judicial need to ensure certainty. In this regard role of media must also be appreciated which highlighted the instances of mistaken identity and created a sense of certainty among the intelligentsia and jurists which has resulted in an all out efforts to redefine the concept of fairness and justice. It may also be added that this debate is well taken by both governmental and non-governmental organizations with a sense of duty toward the society and the same vigor is also required in future. Bibiliography Christian A. Meissner & John A. Brigham, 2001, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 Psychol. Pub. Policy & L. 3 Charles A. Morgan III et al.,2004, Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Intl J.L. & Psychiatry 265, 272 Convicting the innocent in Georgia: Stories of injustice and the reforms that can prevent them; The Justice Project retrieved on 13-1-2010 from http://www.thejusticeproject.org/wp-content/uploads/convicting-the-innocent-in-georgia.pdf Criminal Law Review Committee Eleventh Report, Cmnd 4991 Jennifer Thompson, I Was Certain, but I Was Wrong, June 18, 2000, New York Times. Herman Ebbinghaus, 1913, Memory: A Contribution to Experimental Psychology Nancy Mehrkens Steblay, 1992, A Meta-Analytic Review of the Weapon Focus Effect, 16 L. & Hum. Behav. 413 Tim Coate, 2001, The Strange Case of Adolph Beck s, Stationery Office Books Read More