THE FACTS, AND NOTHING BUT THE FACTS
We like to think that our justice system will uncover the truth in legal cases but sometimes the truth gets lost and the innocent suffer
DNA. Deoxyribonucleic acid. It's a microscopic, double-stranded element in the cells of the body. It determines everything from the colour of your eyes to which diseases you might develop in your life. It's unique to every individual, except identical twins. And, it's been hailed as the greatest advance in forensics -- the study of medical facts in relation to legal cases -- since the fingerprint.
Organic material left at a crime scene -- a fleck of skin, a strand of hair -- can provide a sample of DNA, which then can be compared to one taken from an accused person, to see if they match. Reduced to a few blurry bars on X-ray film, a single DNA profile from a sample of blood, hair, or other material takes up to three months of painstaking lab work to produce.
DNA analysis can match body fluids found at crime scenes against those of suspects with more than 99% accuracy. It provides crucial evidence, especially in cases involving sex offences, assault, and murder. DNA profiling is now accepted by the courts.
In the U.S., police have begun assembling banks of DNA profiles, much like central fingerprint records. These are routinely used to search for matches as part of criminal investigations. More than a dozen states now file DNA profiles of convicted felons. But, it has become increasingly controversial in the United States as a few charges were dismissed after judges ruled that laboratories had not conducted the tests properly.
Defence lawyers in particular caution that DNA profiling is only as reliable as the people and machinery doing the testing. And civil libertarians see it as a gross violation of individual rights; an invasion of privacy. Critics also are concerned about how the data is kept, and about records being removed when people are acquitted.
But criminal investigators say the benefits of a central DNA file far outweigh any potential problems. By providing an easily available base for comparison, they say, it could bring rapid results in many criminal investigations. It can also clear innocent people; and it will help prevent harassment and false arrest. Just ask Guy Paul Morin.
He's one Canadian who is thankful for the existence DNA profiling. Mr. Morin was charged in 1985 with the abduction and murder of nine-year-old Christine Jessop in the village of Queensville, Ontario, 50 kilometres north of Toronto.
The Morin case was full of instances of lost, contaminated, or falsified evidence, many of them attributed to the Durham police force, who investigated the case. What finally cleared Mr. Morin was a DNA test performed at a U.S. laboratory, a decade after he was charged.
Before his first trial, Mr. Morin spent 10 months in jail. He was acquitted by a jury in early 1986. The Crown appealed that verdict and he was convicted in 1992 after a nine-month retrial. He then spent another six months in Kingston Penitentiary before being released on bail pending an appeal.
For eight years, police, prosecutors, judges, and provincial officials went to great lengths to convict a man who had no blemish on his record before his arrest. On several occasions during those years evidence that the defence felt was crucial was not disclosed by police and prosecutors.
Basil Mangano, a private investigator who was on the case almost since Guy Paul Morin was arrested said in a newspaper report after Mr. Morin was cleared: "They had nothing when they arrested him. During his interrogation, they lied to him, said everything under the sun to try and scare him into admitting the murder. Nothing. When they didn't release Guy after that interrogation, they became committed to protecting their case. They started to fit a case around him."
James Lockyer, Mr. Morin's lawyer when he was finally acquitted in 1995 agrees: "My own personal feeling is [Durham Regional Police] were running out of time and wanted someone caught."
Generally, we think of evidence as the stuff that truth is made of in a legal case. But, there are many cases where it's twisted, falsified, and ignored to serve the purposes of anyone but the accused. Sometimes, it mysteriously disappears. Even the courtroom atmosphere can influence the outcome of a trial: a lawyer's raised eyebrows or sighs at a witness' answers can cast doubt about the validity of evidence in the minds of the jurors. A judge's opinions, though they're not supposed to voice them, can also have a major influence on a jury's verdict. Even a judge's personal opinion of the lawyers on a case can lead to injustices: if, for example, a judge dislikes a particular lawyer, he or she may disallow the admission of key evidence, or criticize a lawyer and thereby diminish his credibility before the jury, or cast the accused in a bad light.
It all happened to Guy Paul Morin.
In Canada, undisclosed evidence played a key role in the case of Donald Marshall. He is a Micmac from Nova Scotia, who spent 11 years in jail for a murder he did not commit. Evidence which pointed to Mr. Marshall's innocence was concealed by police. An inquiry that cleared his name lasted nearly three years and cost almost $7 million. Mr. Marshall received a compensation package that pays him about $1.5 million if he lives to 65. And, a three-judge Royal Commission said police should place all their evidence before a prosecutor so it can be evaluated for possible disclosure.
Another case was that of David Milgaard who was wrongfully convicted in 1969 for the murder of a Saskatoon nursing aide. He spent 23 years in prison before being released in 1992. That's when the Supreme Court of Canada suggested he should receive a new trial, again, because of undisclosed evidence in his original trial.
Donzel Young, convicted of killing two drug dealers in September 1989 in Toronto, had numerous supporters who believed in his innocence. In 1994, the Association in Defence of the Wrongly Convicted made a formal request to re-open his case after uncovering evidence it said proved the Jamaican immigrant didn't kill two drug dealers. But time ran out for Mr. Young. In 1995, while he was a prisoner at Collins Bay Penitentiary in Kingston, Ontario, he was stabbed to death. The 33-year-old single father of three apparently was trying to break up a battle between a white man and a black man in the prison gymnasium when he was killed. Prison officials said he was a model inmate who often acted as a peacemaker between warring, race-based factions.
These are only a few examples of innocent people suffering because of botched investigations and mishandled evidence.
"There are more people in prison wrongly convicted than you can imagine," according to the Association in Defence of the Wrongly Convicted. (The group was formed in 1993 by lawyers and other supporters of Guy Paul Morin, and is dedicated to freeing the unjustly jailed.) "There seems to be an international prosecutorial school on how to convict innocent people." But things are changing.
The Canadian Charter of Rights and Freedoms provides that no one may be deprived of life, liberty, or security without regard for fundamental justice. The Supreme Court has been very active in the Charter in the area of criminal law. And, of the first 100 Charter decisions, 74 involved the legal rights of the accused.
According to a Globe and Mail report, the Supreme Court's Wray decision in 1971 was typical of pre-Charter days: The accused was held for hours, given a lie-detector test and induced, by means of threats and promises, to reveal where a weapon was hidden; meanwhile, his lawyer was prevented from seeing him. The Supreme Court found nothing wrong with the way the evidence was collected.
Now, as a result of the Charter, police forces are under closer scrutiny. Some say that the Supreme Court is generally more liberal on the rights of the accused than those of the public.
In addition, the Supreme Court of Canada ruling in the case of an Alberta lawyer convicted of fraud and breach of trust, gave a precedent-setting opinion on disclosure: The presiding judge said the right of an accused person to see material relevant to his case is entrenched in Canada's Constitution. "The fruits of an investigation which are in the possession of the Crown are not the property of the Crown for use in securing a conviction, but are the property of the public to be used to ensure that justice is done..." Everything should be disclosed to the defence except that which is "clearly irrelevant."
"The material must include not only that which the Crown intends to introduce into evidence, but also that which it does not...If the information is of some use, then it is relevant. The determination as to whether it is sufficiently useful to put into evidence should be made by the defence and not the prosecutor."
SUGGESTED ACTIVITIES:
- To show how different people can perceive the same thing, stage an event and then interview witnesses. The event could be an unannounced visitor coming into the classroom and removing an object, or an argument between two students during recess. Then have "investigators" gather evidence from witness, such as descriptions of "suspects", the clothes they wore, what was said, where they went to.
- Debate the following: "In light of the known wrongful conviction for murder of several innocent people, it is resolved that capital punishment must never be re-introduced in Canada."
- Ken Murray was Paul Bernardo's first lawyer. Mr. Murray was in possession of video tapes which showed his client sexually assaulting several victims. For 16 months, Mr. Murray kept the existence of the tapes secret. Was he morally bound to reveal crucial evidence to the Crown? Or, did his duty to provide his client with the best possible defence make concealment of evidence that would convict Mr. Bernardo ethical? Discuss.
FACT FILE
DNA evidence was first used in Canadian courts at a sexual assault trial in Ottawa late in 1989.
FACT FILE
According to several U.S. studies, eyewitness identification in criminal cases is wrong as many as four times in 10.
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By LINDA E. TAYLOR
PROVE IT
Evidence -- information that proves or disproves disputed facts. In criminal law it's up to the prosecution to supply evidence of a crime and prove the accused guilty beyond reasonable doubt.
That evidence can come from eye-witnesses to a crime, documents, articles found at the scene of a crime, or relevant circumstantial evidence. Circumstantial evidence is information that, on its own, doesn't really prove anything but coupled with other evidence may prove a fact. For example, if an accused person was in the area where a crime was committed, then it doesn't prove he committed the crime, only that he could have.
Basically, anything that might establish the guilt or innocence of the accused may be admitted as evidence, except for hearsay --statements made out of court by someone who isn't present to testify under oath at a trial. Generally, such statements aren't allowed in court, unless they are made by the accused. As long as it was free and voluntary, any statement of guilt by the accused may be introduced in court. However, no accused person can be forced to testify against himself. Privileged communications between lawyers and clients are excluded as evidence. And, evidence obtained in a manner that infringes or denies any rights or freedoms guaranteed by the Charter also is excluded if its admission would create an injustice.
FINDING THE TRUTH
Cross-examination of witnesses is seen as an art among lawyers and has been described as "the greatest legal engine ever invented for the discovery of truth." In his book, Lawyers, Jack Batten quotes criminal lawyer Ross McKay, considered an ace at cross-examination: "You learn plenty of techniques...Say, for example, a witness follows the Crown's questions and gives his testimony in a certain order, ABCDE. Most lawyers, when they cross-examine, go down things in the same order, ABCDE. That's not smart. The witness is confident. He sees no surprises. So what I do, I usually start with D or E. It gets the witness off balance at the beginning, especially if D is his weakest point. It unsettles him for the rest of the cross-examination."
Source: Canada & the World Backgrounder, Dec95, Vol. 61 Issue 3, p16, 4p