Miscarrage exam

Types of informants 

• Jailhouse informant- provides information about a crime obtained while incarcerated 

• Co-conspirator informant -accomplice witness/a co-defendant/a co-perpetrator)

• Member of the community- not in jail—also known as a cooperating witness or an incentivized

Who is a jailhouse informant?

• An inmate usually awaiting trial or sentencing

• Claims to be in receipt of admission made by another prisoner awaiting trial

• Agrees to testify against that prisoner in a court of law

• Usually in exchange for some benefit

• Important to note the stages of the CJS in which the information is provided 

Concerns about jailhouse informant 

• Reliability- evidence is unreliable and untrustworthy

• Voluntariness

• Believability

• Violating the rights of the accused

• Informant Abuses

• Recanation 

Comparing jailhouse informants, eyewitness and false confessions 

• Jailhouse informants

  • has run afoul of the law

  • at the very least are persons who have been charged with a criminal offence

  • many already have existing criminal convictions

  • general reputation in the community is rarely one of integrity and upright truthfulness 

• Motives of a jailhouse informant are generally suspect

• Usually only provide evidence against other inmates when they are promised or hope to receive some reward for doing so

• The prospect of receiving rewards provides jailhouse informants with a strong motivation to lie

Prison informants 

• Provides information about alleged activities of fellow inmates 

• Inmates may be subjected to administrative segregation, involuntary transfer, or some other form of sanction from information

• Generally acknowledged to be useful in the administration of a prison 

• Information provided can necessitate decision making which effect the liberty interests of an inmate

Concerns about prison informants 

• Suffers from serious credibility issues 

• Motives just as suspect as those of the jailhouse informant 

Why accept jailhouse informant testimony?

• Juries associate informants with the prosecution and the truth-seeking process

• Some jailhouse informants are very good witnesses- possess considerable experience testifying as a defendant or as informant in the past

• Some informants have displayed an ability to obtain the necessary information about another prisoner’s pending charges to fabricate a confession

• Juries may not be able to assess properly the information relevant to the credibility of the evidence of informants- unfamiliar with the workings of the jail and criminal justice systems.

• Testimony of informants will often be very difficult for the defendant to refute

When informants recant 

• Courts have not generally looked favorably upon recantation

• Typically reluctant to grant new trials after witnesses recant- Why?

  • recantation challenges the original testimony

  • personal credibility of the witness

• Courts have sometimes considered recanted testimony, but has found it to be unconvincing

• Reluctant to consider recantation evidence when other evidence supports the conviction- especially if physical evidence

• CJS reluctance to consider recantation in line with a general tendency to prefer their original choice when making decisions

Recommendations for inquiry

• Pre-trail reliability hearings to test whether informant testimony should be admitted 

• Restricting the incentives offered to informants 

• Strict disclosure obligations - early and full disclosure of informant testimony 

Policy guidelines Province of Ontario 

• Establishes a reliability threshold test to determine whether the informant gets to appear at trial as a witness

• Determines compelling public interest - informant must appear before informer committee to present evidence 

• Prosecutor and the committee will assess the reliability of jailhouse informants report of a statement by the accused 

Eyewitness Misidentification - Generally results from 

• limited abilities of humans to fully process, permanently encode, and accurately retrieve information or

• the use of biased and unreliable procedures by which eyewitness testimony is gathered

What are the testing mechanisms available for eyewitnesses? 

• Interviews 

• Line up 

Unreliability of Eyewitness Memory 

• Even when identification tests are well constructed, identification evidence may be fallible and unreliable because of the observer's perceptual and  memorial processes.

• Memory is really a by-product of our mental processing of an experience that allows us to later recognize or recall some person, place, or action.

• Often frail, incomplete, and erodes, changes, or is misplaced with the passage of time

• Our ability to engage in effective processing of person/place/time may be limited by our inability to  spread our attention  evenly and simultaneously to all aspects of the person/actions/events.

  Our  perceptual system has evolved in such a way as to give us only a succession of brief, multiple, overlapping, but incomplete visual (or auditory) slices of the information that is available at any moment

Importance of eyewitness memory:  

• provide information about a person's identity

• the physical context, actions of all those involved including perpetrators, victims, and witnesses

• their voices and conversations

Factors that Affect Eyewitness Identification Accuracy Variables

• Estimator Variables 

• System Variables

Estimator Variables

• Not under the control of the criminal justice system

• Descriptive of the human or eyewitness characteristics

• Their effects upon witness performance can only be estimated after the fact

• Many of these variables are known to be related to eyewitness memory performance

• Four broad categories: 

  • Characteristics of the witness,

  • Characteristics of the event 

  • Characteristics of the testimony

  • Abilities of the testimony evaluators to discriminate between accurate and inaccurate witness testimony

Characteristics of the Witness

• Men/Women-

• Age of the eyewitness-

• Intelligence- Little evidence that intelligence is related to eyewitness identification performance

• Race- people are better able to recognize faces of their own race or ethnic group than faces of another race or ethnic group

• Personal Characteristics- that individuals high in chronic trait anxiety made fewer mistaken identifications than individuals low in chronic trait anxiety

Characteristics of the Event

• Distinctive faces are much more likely to be accurately recognized than nondistinctive faces

• Simple disguises, even those as minor as covering the hair, result in significant impairment of eyewitness identification

• Changes in appearance that occur naturally over time and changes that are made intentionally by suspects can have quite strong effects on recognition

• Amount of time the culprit is in view

• The presence or absence of a weapon (weapon-focus effect)-the presence of a weapon reduces the chances that the eyewitness can identify the holder of the weapon

Characteristics of the Testimony 

• Certainty (confidence) of the eyewitness

• The literature show a reliable correlation between certainty/ accuracy and accuracy of identification

• Certain challenges exist in actual cases

• Another factor that can impact the meaning of eyewitness certainty is repeated testing

• The speed with which the eyewitness makes an identification from a lineup also impacts accuracy

Lay Observers’ Judgments of Accuracy

• Observers, such as jurors, have little ability to make correct discriminations between accurate and inaccurate eyewitness identification testimony

• It is important that jurors and judges be able to assess the adequacy of eyewitness identification

• In a series of experiments using this methodology, subject-jurors have shown little or no ability to make such discriminations

• In some cases, observers over belief the identification of witnesses, in others they have under believed the witnesses

System Variables

• System Variables- under control of the criminal justice system 

• Their manipulation can serve to increase or decrease the opportunity for error

• Their negative effects may be minimized by making changes in the justice system

• In general, these tend to be lineup test factors, such as how witnesses are instructed prior to viewing a lineup or how the lineup is structured

Line up Procedure

• Crime investigators begin with a hypothesis (that the suspect is the culprit)

• Create a design for testing the hypothesis (embed the suspect among fillers)

• Carry out a procedure (e.g., provide pre-lineup instructions and present the group to an eyewitness)

• Observe and record the eyewitness’s behavior (witness decision), and then interpret

• Revise their hypothesis (whether the suspect is the culprit)

Categories of system variables in eyewitness identification

• Four categories: instructions, content, presentation method, and behavioral influence

Instructions

• the ratio of accurate to inaccurate identifications is strongly affected by whether or not eyewitnesses have been instructed prior to viewing the lineup that the culprit might or might not be in the lineup

• the presence of the "might or might not be present” instruction (compared to no instruction) reduced mistaken identification rates in culprit-absent lineups by up to 41.6%

sequential lineup

• The sequential lineup shows the eyewitness only one lineup member at a time and requires the eyewitness to make a decision (“Is this person the culprit or not?”) prior to viewing the next lineup member.

Blank lineup

A blank lineup is one that contains only fillers (no suspect)- The eyewitness is first shown the blank lineup under the belief that this is the only lineup to be shown.

Behavioral Influence: The Need for Double-Blind Testing

• Case detective administers 

• Knows which member of the lineup is the suspect and which members are fillers

• What’s the problem? 

  • Lineup administrators could inadvertently communicate their knowledge about which lineup member is the suspect and which members are merely fillers to the eyewitness through various verbal and nonverbal means

  • Post-identification suggestions to eyewitnesses from lineup administrators - mistaken eyewitnesses to develop high levels of false certainty 

• Elimination lineup

• Elimination lineup- the witness eliminates all but one lineup member and then make a separate decision as to whether that person is the culprit or not

Elements of justice

• Fair treatment- everyone should be treated fairly, without bias or prejudice

• Equality- Everyone is treated equally regardless of background (racial, socio-economic, political, religious) 

• Neutrality-No one should receive preferential treatment 

• Independence- independent of external influence (outcomes are fair, impartial & transparent)

Three components of the criminal justice system

• Police- enforce the law, arrest suspects, prevent crime & protect the public

• Courts (Crown prosecutors, defence counsels, judges & juries)- determine the charges & secures a fair trial for the accused person

• Correctional services (Prisons, Probation/Parole, offender programs)-rehabilitation of offenders & reintegration into community

Rule of law - principles

• Equality under the law- No one is above the law

• Protection of individual rights- protects rights & freedoms, provides opportunity to seek justice

• Access to justice- Legal assistance is available, accessible and affordable

• Accountability for government/leaders- Those in power must be held accountable for their actions, kept in check

Fair and equal treatment according to the law; which Laws?

• Canadian Charter of Rights & Freedoms

  • Contains legal protections for accused persons- from arrest, trial, sentencing & imprisonment

• Criminal Code (Canada)

  • Procedures that support these rights & protections

• Canada Evidence Act

  • Rules for evidence presented in court during trials

Legal Innocence

• Was there enough admissible evidence to find the accused guilty or not guilty?

Right-based approach

•  when the rights of suspects, defendants or convicts are breached by the government due to deficient processes, applied laws, lack of factual justification, disproportionate treatment, lack of protection against wrongdoers, or by state law

The current legal safeguard (confession rule) has not always been effective

• Judges made the law- no scientific knowledge of the cause of false confessions

• Legal rules and police practices have been based on untested assumptions about human behaviour, derived from experience

Confession rule

• has prohibited certain conduct on the part of the authorities because it might result in unreliable evidence

2 ways that false confessions can happen:

• Actions of police 

• Certain individuals/individuals in certain situations may be especially vulnerable to making false statements (the young, the intellectually disabled, the sleep deprived and those in withdrawal)

Statements against interest

• regarded as inherently reliable, so everyone in the CJS infers guilt based on statements 

Types of false confessions

• Voluntary/Compliant/Internalized

Voluntary false confessions

• Self-incriminating statement offered in the absence of pressure from the police

• Individual initiates contact with the police 

• Individuals who are already in contact with the police about an offence, but not under pressure to admit responsibility 

• Reasons:

  • Pathological need for notoriety

  • Guilt over previous transgressions/more generalized sense of guilt

  • Mentally illness/inability to distinguish fact from fantasy

  • Wish to protect the real criminal from punishment

Complaint false confessions 

• Suspect complies

• escape/avoid a distressing interrogation/gain a promised reward

• Modern interrogation is designed to maximize psychological pressure and stress

• Removing the suspect is removed from his or her normal support mechanisms

• Perceive themselves to be under the physical control of the investigator

• Strong personal reasons for wanting to end the interrogation

• Perceived benefits of confession may be appealing

• Believe the truth will eventually come out or that their lawyer will save them from disaster

Internalized false confessions 

• Suspect believes in own guilt - despite having no memory of committing the crime

• Why?

  • Suspect may lack confidence in memory of an event or period

• How?

  • Interrogator takes advantage of this weakness, plants suggestions

  • Suspect is unable to detect errors and deflect the suggestions

  • Begins to adopt them until he or she finally comes to accept guilt

Causes of false confessions and admissions 

• The Interrogation

• The Interrogated

• False confessions and admissions unlikely the product of either the characteristics of the interrogation or of the interrogated 

The interrogation

• False confessions result from poor police training and negligence

• interrogation tactics are not understood and are misused

• Misuse violates legal rules/safeguards

• Poor training and negligence are the principal reasons

• Malicious intent- occasional

The interrogated

• Individual factors that could prompt a person to do so

• The concept of interrogative suggestibility accounts for these individual differences 

• Interrogative suggestibility is defined as "the extent to which, within a closed social interaction, people come to accept messages communicated during formal questioning, as the result of which their subsequent behavioural response is affected.”

Compliance

• agreement with a suggestion, knowing that it is wrong, for some instrumental gain, such as reducing pressure during an interrogation

Suggestibility

• private acceptance of a suggestion, or at least the belief that a suggestion is plausible

Factors can have a significant impact on suggestibility 

• Youth

• Intelligence

• Memory

• Anxiety- situational anxiety is associated with increased suggestibility 

• Impulsivity: impulsivity and poor ego control- give in to interrogative pressure.

• Sleep deprivation:

• Coping strategies employed: people who use avoidance-coping strategies often score higher on

• suggestibility

• Self-esteem:

• Mood:

• Withdrawal from intoxicants:

Investigation process

• Interviewing & information gathering

• Interrogation

• Selection of suspect

• The choice of whom to interrogate may be well founded (e.g., based on solid evidence)

• In error (e.g., based on information that latter turns out to be erroneous)

• Reckless (e.g., based on no evidence but solely on a hunch or an unjustified assumption about the statistical likelihood of a particular suspect's guilt)

Accusatory interrogation

• US interrogation methods rely on suggestion, deception and superficially disguised threats of punishment and promises of leniency to move suspects to confession

• With the shift to psychological methods, accusatory interrogation has become more subtle, sophisticated and differentiated

• Accusatory interrogation is not an interview, has one goal only- to obtain a confession from whomever is selected for processing

• However, accusatory interrogation should only be undertaken when there is sufficient evidence against a person that the interrogator is sure that this individual is the perpetrator

The two phases of an interrogation

• Segment 1: (Pre-admission phase)- organized to change the suspect's decision to deny responsibility and elicit the statement, "I did it." 

• Segment 2: obtain a post-admission narrative of the crime that proves suspect’s guilt

Path to false confessions 

• Misclassification

  • Investigators decide, based on their own discretion, that an innocent person is guilty 

• Coercion -main cause of false confessions

  • Use psychological coercion 

    • Using techniques that are coercive (ex: deprivation of food, sleep, water, bathroom facilities, false promises) 

    • Giving suspect the idea that they have no choice but to comply 

• Contamination

  • Pressure the suspects to accept a particular account by suggesting facts of the crime to them

The Reid technique - coercive and manipulate

• The Reid procedure consists of a structured nine-step process

  • comprised of confrontation and minimization strategies

  • Confrontation entails forceful accusations, the presentation of evidence (either real or manufactured), and interruptions whenever denials are attempted by the suspect

• Essentially, the Reid Technique is solely designed to 

  • convince the suspect that he is caught

  • the police have overwhelming evidence that he is the culprit

  • there is no way that the suspect will be able to convince the interrogator or anyone else involved in the Criminal Justice System that he didn't do the crime