In their book Claims of Innocence, An Introduction to wrongful convictions and how they might be challenged Michael Naughton and Gabe Tan give fantastic guidelines listing few steps to how to approach an alleged miscarriage of justice.
Crucial are ensuring the retention of evidence and case documents, team will have to ensure of the retention of material by the police, Forensic Science Services (FSS) and by solicitors.
Few good tips there were that if “you are still seeking to challenge your conviction even after you have lost in your appeal or the CCC has refused to refer your case back to appeal courts it is vital that you make a formal written request to the relevant police force for all material relating to your case to be retained.” In case of FSS, “All items submitted by the police to the FSS will normally be returned to the police upon completion of the laboratory examination except in circumstances where the samples are thought to pose a potential hazard (e.g. biological samples such as blood), or, where an agreement has been reached with a relevant police force/organisation for the FSS to retain them, or part of them, under specialised storage conditions, for reference purposes or for possible future re-examination using improved techniques.
The FSS will maintain a document audit trail in relation to retained and destroyed material. The FSS will retain [keep in their possession] material for 30 years as a matter of course in serious cases” including the the murder . This 30 year period do not cover items of perishable nature, like body fluids for example. A “Notification of Intention to Destroy Items of a Perishable Nature' will be sent to the defence team prior to destruction which lists the items that the FSS are intending to dispose of. “ In light of this alleged victims of wrongful convictions should instruct their defence team to respond to the FSS ' Notification of Intention to Destroy Items of Perishable Nature' and request to the FSS for the destruction to be stayed – stopped.” It is also stated here that in addition o above, “ a formal request to the FSS should be made for other non-perishable materials to be retained beyond the minimum retention period.” In situation when the materials have been destroyed it is still possible that material taken from the item has still been retained. Further advise is given here that “it is worth contacting the FSS to ascertain the specific items and samples that they still hold in relation to your case.”
Retention policy with forensic science providers other than FSS is within General Specification Schedule 6A Items 3.22-3.26 Storage, Retention and Disposal, further on it was advaised again that “it is recommended that it be requested in writing to the forensic science that the police need to be contacted is that once a forensic science provider has finished with a case, most exhibits will be sent back to the police. However, certain items such as microscope slides , DNA extracts , acetate sheets containing fibre tape lifts etc will be retained by the forensic science provider for a variable amount of time.” an example of a case study given here is the conviction of Sean Hodgson who was imprisoned for murder of Teresa De Simone in 1979 because FSS had incorrectly declared that “all exhibits in the case were destroyed when the first request for DNA testing on the samples was made”. He served 27 years in prison before his conviction was overturned “when DNA testing of the semen sample collected at the crime scene did not match his profile.”
It is also important that the solicitors are also instructed “in writing not to destroy their files, including instructions and briefs, attendance notes and correspondence sent to third parties on their behalf.”
As an important starting point to investigation it is crucial to learn trial proceedings and examin how the jury decides on convictions which I already did go through the law aspect in two of my other posts when looking into law aspects of Criminal sentencing and jury decision making as well as focused on studying specific crime (murder) and different asoects of defence:
Criminal Law– Smith and Hogan, studying Investigative Journalism
Criminal Law by Alan Reed and Ben Fitzpatrick, chosen aspects- studying Investigative Journalism
The trial scripts and judges summing up are very important and probably best starting point before going deeper into specific areas of the case like for example DNA evidence or handprints. It is good to recognise what wa sthe Prosecutions' and Defence case for the defendant.
In Prosecution's Case, as Michael and Gabe point out it is significant to learn what is the prosequtions's version of what happened and what were the evidence supporting this version and what evidence was produced to undermine the defence's case. They also give advise to construct a list of all the proseqution witnesses who testified in court or whose statements were read out in court, and the evidence given by each of these witnesses. It is a key factor to understand evidence that led to the conviction and look for evidence undermining it or as Gabe and Michael say "disprove it tottaly". The same thing should be done for defence case just studying how the prosecution case was undermined by the defence and all the rest to do with the statements but corresponding to the defence. To stand up arguments against prosecition "evidence needs to be found that contradicts their statements or testiminios."
It is also equaly significant to "to get grips with how the police investigation was conducted, how the evidence was obtained, and whether there is evience that could support your case at trial which was not disclosed by the prosecution or which was ommited by the defence team." As an Inocence Project team that re-examines the case "you have to actively find evidence that undermines the prosecution's case and/or produce new evidence that could positively establish that alleged victims of wrongful conviction are innocent ot the crime that they have been convicted of."
When looking at the witness testimonies it is worth looking into things like whether the evidence given to the police is consistent with the evidence that the witness gave in court; "if a witness provided more than one statement, and the evidence which incriminates the alleged victim of wrongful conviction only came out in the later statement, it is crucial to question why the witness did not provide the evidence in his or her earlier statement(s). " Other thing to be done in course of examinations are looking into unused materials like witness statements perhaps there was something in there that that could contradict the witness's evidence or even find out if any of the witnesses had ever had a history of making false allegations.
Further on, loking into witness evidence, eyewitness identification evidence "featured in the prosecution's case at trial and you think that eyewitness might have been genuinely mistaken, (i.e. you are not claiming that the eye witness lied to the police or in court) the following pointers could assist you in proving that the eyewitness identification evidence is unreliable (...).”
Identififation procedure also has to comply with the Police and Crim inal Evidence Act 1984, particulary the Code of Practice for the Identification of Persons by the Police officers (Code d). Other significant tip is that “the witness should not see suspect on any photographs or description of the suspect prior to the ID parade.” Or even “could the witness have heard or heard any describtion of the suspect from the media prior to making the identification?” All these are vitally important, Michael and Gabe also give website that helps with other aspects of identification issues on Crampton, S. (2005) ‘Identification Issues’. (www.unitedagainstinjustice.org.uk )
Other aspect of giving statements is confesions, “if an alleged victim of wrongful conviction is convicted on basis of a confession, and s/he now [is] claiming that confession is false, the following pointers might assist in showing the unreliability of the confession:”
- all police interviews with suspects have to be audio recorded,
- if a person is forced to make a false confesion – check if police compied with the provisions set out under the PACE (Code of Practice C) (including the alleged victim of wrongful conviction)
- if the alleged victim of wrongful conviction is a vulnerabl suspect or suffers from mental or physical disability, check if the proper procedures for interviewing vulnerable suspects were adhered to.
-Does the confession contain describtions like how the crime was committed which do not fit with the evidence ,
- “At which point did the confession emerge? Are there any inconsistencies in the evidence given by the alleged victim of a wrongful convicton in the course of the police investigation? Did the alleged victim attempt to retract their confession in the course of the police investigation?”
-check how long was the alleged victim of wrongful conviction retained in custody before making the confession?
-Was the confession made in presence of the solicitor
- “if the alleged victim of wrongful conviction is alleging that the confession was fabricated by the police, send the statement for analysis by forensic psychologist. There might be words or forms of expressions contained in the statement that does not fit with the age/or educational background of the alleged victim”
-“if the alleged victim might have an undiagnosed mental or personality disorder which could make him/her vulnerable to making a false confession, arrange for a diagnosis by forensic psychologist.”
All above is vital, I will be dealing with more Forensic issues in separate chapter, which I will publish soon.
Finally, last but not least to end this post it is worth adding fue more quotes from Michael and Gabe’s book regarding solicitors. In the centre of all major wrongful conviction cases that Michael and Gabe cited in their book are “defence solicitors who were committed to the plight of the alleged innocent victims and dedicated themselves to assisting them to overturn their criminal convictions.
Such criminal appeal solicitors are vital in attempts to overturn alleged wrongful convictions. They can use their legal powers to ask for, and obtain, disclosure of evidence, challenge decisions made by authorities such as Crown Prosecution Service (CPS) or the police, ensure that correspondence to prisoners is confidential and not opened before it reaches them, obtain affidavits from witnesses who want to prove alibis or retract their incriminating statements, they can commission new tests to be conducted to produce new evidence that can call safety of the conviction in question, they can make the application for the appeal or to Criminal Cases Review Commission (CCRC).”
*All quotes and information are from:
Claims of Innocence, An Introduction to wrongful convictions and how they might be challenged
Michael Naughton with Gabe Tan (2010)
*My other posts created on basis of this book:
SEE HERE - Claims of Innocence by Michael Naughton and Gabe Tan – studying Investigative Journalism
Crucial are ensuring the retention of evidence and case documents, team will have to ensure of the retention of material by the police, Forensic Science Services (FSS) and by solicitors.
Few good tips there were that if “you are still seeking to challenge your conviction even after you have lost in your appeal or the CCC has refused to refer your case back to appeal courts it is vital that you make a formal written request to the relevant police force for all material relating to your case to be retained.” In case of FSS, “All items submitted by the police to the FSS will normally be returned to the police upon completion of the laboratory examination except in circumstances where the samples are thought to pose a potential hazard (e.g. biological samples such as blood), or, where an agreement has been reached with a relevant police force/organisation for the FSS to retain them, or part of them, under specialised storage conditions, for reference purposes or for possible future re-examination using improved techniques.
The FSS will maintain a document audit trail in relation to retained and destroyed material. The FSS will retain [keep in their possession] material for 30 years as a matter of course in serious cases” including the the murder . This 30 year period do not cover items of perishable nature, like body fluids for example. A “Notification of Intention to Destroy Items of a Perishable Nature' will be sent to the defence team prior to destruction which lists the items that the FSS are intending to dispose of. “ In light of this alleged victims of wrongful convictions should instruct their defence team to respond to the FSS ' Notification of Intention to Destroy Items of Perishable Nature' and request to the FSS for the destruction to be stayed – stopped.” It is also stated here that in addition o above, “ a formal request to the FSS should be made for other non-perishable materials to be retained beyond the minimum retention period.” In situation when the materials have been destroyed it is still possible that material taken from the item has still been retained. Further advise is given here that “it is worth contacting the FSS to ascertain the specific items and samples that they still hold in relation to your case.”
Retention policy with forensic science providers other than FSS is within General Specification Schedule 6A Items 3.22-3.26 Storage, Retention and Disposal, further on it was advaised again that “it is recommended that it be requested in writing to the forensic science that the police need to be contacted is that once a forensic science provider has finished with a case, most exhibits will be sent back to the police. However, certain items such as microscope slides , DNA extracts , acetate sheets containing fibre tape lifts etc will be retained by the forensic science provider for a variable amount of time.” an example of a case study given here is the conviction of Sean Hodgson who was imprisoned for murder of Teresa De Simone in 1979 because FSS had incorrectly declared that “all exhibits in the case were destroyed when the first request for DNA testing on the samples was made”. He served 27 years in prison before his conviction was overturned “when DNA testing of the semen sample collected at the crime scene did not match his profile.”
It is also important that the solicitors are also instructed “in writing not to destroy their files, including instructions and briefs, attendance notes and correspondence sent to third parties on their behalf.”
As an important starting point to investigation it is crucial to learn trial proceedings and examin how the jury decides on convictions which I already did go through the law aspect in two of my other posts when looking into law aspects of Criminal sentencing and jury decision making as well as focused on studying specific crime (murder) and different asoects of defence:
Criminal Law– Smith and Hogan, studying Investigative Journalism
Criminal Law by Alan Reed and Ben Fitzpatrick, chosen aspects- studying Investigative Journalism
The trial scripts and judges summing up are very important and probably best starting point before going deeper into specific areas of the case like for example DNA evidence or handprints. It is good to recognise what wa sthe Prosecutions' and Defence case for the defendant.
In Prosecution's Case, as Michael and Gabe point out it is significant to learn what is the prosequtions's version of what happened and what were the evidence supporting this version and what evidence was produced to undermine the defence's case. They also give advise to construct a list of all the proseqution witnesses who testified in court or whose statements were read out in court, and the evidence given by each of these witnesses. It is a key factor to understand evidence that led to the conviction and look for evidence undermining it or as Gabe and Michael say "disprove it tottaly". The same thing should be done for defence case just studying how the prosecution case was undermined by the defence and all the rest to do with the statements but corresponding to the defence. To stand up arguments against prosecition "evidence needs to be found that contradicts their statements or testiminios."
It is also equaly significant to "to get grips with how the police investigation was conducted, how the evidence was obtained, and whether there is evience that could support your case at trial which was not disclosed by the prosecution or which was ommited by the defence team." As an Inocence Project team that re-examines the case "you have to actively find evidence that undermines the prosecution's case and/or produce new evidence that could positively establish that alleged victims of wrongful conviction are innocent ot the crime that they have been convicted of."
When looking at the witness testimonies it is worth looking into things like whether the evidence given to the police is consistent with the evidence that the witness gave in court; "if a witness provided more than one statement, and the evidence which incriminates the alleged victim of wrongful conviction only came out in the later statement, it is crucial to question why the witness did not provide the evidence in his or her earlier statement(s). " Other thing to be done in course of examinations are looking into unused materials like witness statements perhaps there was something in there that that could contradict the witness's evidence or even find out if any of the witnesses had ever had a history of making false allegations.
Further on, loking into witness evidence, eyewitness identification evidence "featured in the prosecution's case at trial and you think that eyewitness might have been genuinely mistaken, (i.e. you are not claiming that the eye witness lied to the police or in court) the following pointers could assist you in proving that the eyewitness identification evidence is unreliable (...).”
Identififation procedure also has to comply with the Police and Crim inal Evidence Act 1984, particulary the Code of Practice for the Identification of Persons by the Police officers (Code d). Other significant tip is that “the witness should not see suspect on any photographs or description of the suspect prior to the ID parade.” Or even “could the witness have heard or heard any describtion of the suspect from the media prior to making the identification?” All these are vitally important, Michael and Gabe also give website that helps with other aspects of identification issues on Crampton, S. (2005) ‘Identification Issues’. (www.unitedagainstinjustice.org.uk )
Other aspect of giving statements is confesions, “if an alleged victim of wrongful conviction is convicted on basis of a confession, and s/he now [is] claiming that confession is false, the following pointers might assist in showing the unreliability of the confession:”
- all police interviews with suspects have to be audio recorded,
- if a person is forced to make a false confesion – check if police compied with the provisions set out under the PACE (Code of Practice C) (including the alleged victim of wrongful conviction)
- if the alleged victim of wrongful conviction is a vulnerabl suspect or suffers from mental or physical disability, check if the proper procedures for interviewing vulnerable suspects were adhered to.
-Does the confession contain describtions like how the crime was committed which do not fit with the evidence ,
- “At which point did the confession emerge? Are there any inconsistencies in the evidence given by the alleged victim of a wrongful convicton in the course of the police investigation? Did the alleged victim attempt to retract their confession in the course of the police investigation?”
-check how long was the alleged victim of wrongful conviction retained in custody before making the confession?
-Was the confession made in presence of the solicitor
- “if the alleged victim of wrongful conviction is alleging that the confession was fabricated by the police, send the statement for analysis by forensic psychologist. There might be words or forms of expressions contained in the statement that does not fit with the age/or educational background of the alleged victim”
-“if the alleged victim might have an undiagnosed mental or personality disorder which could make him/her vulnerable to making a false confession, arrange for a diagnosis by forensic psychologist.”
All above is vital, I will be dealing with more Forensic issues in separate chapter, which I will publish soon.
Finally, last but not least to end this post it is worth adding fue more quotes from Michael and Gabe’s book regarding solicitors. In the centre of all major wrongful conviction cases that Michael and Gabe cited in their book are “defence solicitors who were committed to the plight of the alleged innocent victims and dedicated themselves to assisting them to overturn their criminal convictions.
Such criminal appeal solicitors are vital in attempts to overturn alleged wrongful convictions. They can use their legal powers to ask for, and obtain, disclosure of evidence, challenge decisions made by authorities such as Crown Prosecution Service (CPS) or the police, ensure that correspondence to prisoners is confidential and not opened before it reaches them, obtain affidavits from witnesses who want to prove alibis or retract their incriminating statements, they can commission new tests to be conducted to produce new evidence that can call safety of the conviction in question, they can make the application for the appeal or to Criminal Cases Review Commission (CCRC).”
*All quotes and information are from:
Claims of Innocence, An Introduction to wrongful convictions and how they might be challenged
Michael Naughton with Gabe Tan (2010)
*My other posts created on basis of this book:
SEE HERE - Claims of Innocence by Michael Naughton and Gabe Tan – studying Investigative Journalism
