Report from 2007 Innocence Project NZ Conference
The Innocence Project New Zealand Conference at Wellington’s Victoria University last week proved to be an extremely interesting and educational three days.
Organised by Matthew Gerrie & Maryanne Garry, the project is primarily a group of scientists, writers and lawyers who aim to investigate possible cases wrongful conviction in the New Zealand legal system, educate people working in the justice system, and conduct research aimed at making criminal investigations as effective and safe as possible. Sadly, there were no judges at this conference, and I was shocked that nobody from the Ministry of Justice bothered to attend.
Jacqueline McMurtrie, Associate Professor of Law at the University of Washington outlined The History of the Innocence Network: Its Influences and Successes. Since the first project was started in the USA, 210 men have been exonerated after DNA tests showed conclusively that they were innocent. Many of these men were on death row. Recent analysis of the first 200 cases show that they are often a result of systematic defects in the justice system which are potentially able to be reformed. The researchers found that the leading causes of wrongful convictions are:
- eyewitness misidentification – by far the biggest problem
- false confessions – an astonishing 25% of the innocent men were pressured into making some kind of admission
- government mis-conduct
- ineffective legal representation – one man was refused an appeal even though he complained that his lawyer was asleep during critical parts of the trial!
- use of jailhouse informants – as happened in the Scott Watson murder conviction
Bernard Robertson, editor of the New Zealand Law Journal spoke about The Evidence Act 2006, particularly the implications regarding expert witnesses. The new criteria is one of “substantial helpfulness” – I guess it will take a few test cases to see how it works out in practice. One positive note is that the special provisions for registered psychologists have been abolished.
There have also been attempts to define protocols for identifying suspects – which these days are nearly always done with photo montages rather than lineups. Eyewitness Identification expert Prof. Neil Brewer from the School of Psychology at Flinders University, Adelaide showed us videos and photo lineups which demonstrated just how hard it is to identify a person, even when you know a crime is going to take place and are observing carefully. We also saw how easy it is to pick the wrong person!
If these photo montages are done correctly people who were NOT witnesses should be able to pick the suspect at a rate no greater than that of chance. Unfortunately some studies have shown that in as many as 25% of identification lineups, the photograph is manipulated to make the suspect obvious. In this regard the new law is not consistent with the latest research – for example it requires that the photographs should be substantially similar to the suspect, when it should specify that they be similar to the eyewitnesses description.
Some of the lawyers present were extremely concerned to hear that the police do not typically report when witnesses fail to identify a suspect, or when witnesses identify the wrong person, all of which affect the credibility and reliability of the positive identifications which do get presented in court.
Ross Grantham & Nina Westera from the NZ Police described the PEACE interviewing framework, which sounded pretty sensible to me. I think the biggest challenge will be getting front-line police to actually use it properly.
When the audience was asked if they would like to see all police interviews recorded on video there was almost overwhelming support, although John Rowan QC said he was concerned that many of his clients might be disadvantaged if video interviews were used in court. Many of them are not articulate, swear continuously, likely to be hostile towards police, and may look disreputable after arrest, all factors which could have a negative influence on a jury.
Criminal cases review commission
There was considerable discussion about the establishment of some kind of review authority to look at cases to investigate possible miscarriages of justice, as recommended by Justice Thorp last year. He estimated that there are approximately 20 falsely convicted men currently in New Zealand prisons, but others suggest the number may be 10 times higher. I asked Nandor Tanczos – the only politician to show up, what he thought the prospects were, and he replied that he was quite hopeful that progress could be made without it becoming a party political issue.
Felicity presented a paper Does gonorrhoea in pre-adolescent children always indicate sexual abuse? in which she revealed that possibly dozens of families (many from the Pacific Island community) have lost custody of children because DSAC doctors testify as expert witnesses that gonorrhoea is only caused by sexual transmission. A review of the literature shows that non-sexual transmission has been recognised a major problem in the past, and demonstrates yet again that DSAC evidence is ideologically based rather than scientific.
We learned lots about DNA evidence, fingerprinting, the Scott Watson double murder case, Peter Ellis, and problems with memory, but I haven’t time to write any more. The Innocence Project New Zealand will fill a much needed role in our society, and I feel privileged to have had the opportunity to meet so many interesting and dedicated professionals.