Interrogations-and-Confessions-Handbook

Miscarriages of Justice and False Confessions 163
cases it was eventually discovered that no crime had been committed at all.
There were 47 (13%) cases where the real culprit eventually confessed, sometimes
after being apprehended for another crime. In addition, a number of real
culprits confessed on their deathbeds.
What is very striking from this study is that the defendants themselves could
do very little to have their cases re-opened. Almost without exception, the defendants
were dependant upon the goodwill of others in proving their innocence.
Almost one-third of the cases were re-opened because of the persistence and
hard work of people who believed in their innocence. These comprised defence
solicitors (16%), journalists or authors (11%) and other well disposed citizens,
including the defendants’ loyal friends and relatives.
This study clearly shows that the criminal justice system itself is deficient in
discovering, admitting to and doing something about errors which they make.
Once defendants have been convicted they can attempt to be vindicated by
appealing against their conviction, but this can only happen when there appears
to have been some procedural error at the trial, or there has been some
newly discovered substantive evidence. As Bedau and Radelet (1987) point out,
‘This leaves most erroneously convicted defendants with no place to turn to for
vindication’ (p. 71).
The studies reviewed above appear to have used reasonably stringent criteria
when defining innocence for selection of cases in their study. What is striking
about these cases is that so many of the defendants were proven innocent by
sheer luck and good fortune. All the authors recognize that they were only dealing
with a small proportion of all cases of wrongful conviction. There can be no
doubt that for every proven case of wrongful conviction there are many more
that remain unproven. However, proving a convicted person’s innocence with
absolute certainty is impossible in the great majority of cases of miscarriage of
justice, although this task is becoming easier with improved DNA technology
(Scheck, Neufeld & Dwyer, 2000). This raises the question, what degree of certainty
should be required in the determination of innocence? Considering how
difficult it is for people to prove their innocence once convicted, a criterion based
on ‘beyond reasonable doubt’ is far too stringent for use in the kind of study
cited above and a lower standard should be acceptable in the inclusion criteria.
The following factors need to be taken into consideration when determining
innocence.
1. What information is relied upon to determine innocence?
2. Is the information from original or secondary sources?
3. How reliable is the information?
4. How is the ‘weight’ of the evidence determined?
5. Who determines the ‘weight’ of the evidence?
6. What threshold of certainty is used?
Markman and Cassell (1988) argue that there are a number of methodological
problems with the determination of innocence in the Bedau–Radelet study.
Principally, they point to the largely subjective nature of the classification
and the failure of these authors to consider allegedly compelling physical evidence
of guilt at trial. Bedau and Radelet (1988), in their reply to the critique,
point to the over-reliance of Markman and Cassell on the prosecution evidence