930 words; 4 minutes to read

Some people are found guilty of crimes they did not commit, and many more people plead guilty to specific charges that are inaccurate.  Yet once someone has pled guilty or been convicted, we seem to forget these realities and behave as if those people were guilty of exactly what the state has claimed.

That is a central claim in a fascinating article by U S law professor Anna Roberts (Twitter: @ProfARoberts).  She writes that “a copious body of work exposes a variety of facets of the system that jeopardize the reliability of convictions” yet “when we speak without complication about ‘offenders’ and their ‘recidivism’” we misrepresent the reality.  And when “we speak of those without convictions as having lived law-abiding lives, we risk endorsing a flip-side assumption that absence of conviction equals factual innocence.”

More wrongful conviction than most people think

Roberts discusses the many different reasons that people may plead or be found guilty even when they are not actually guilty.  Indeed, the assumption of guilt, rather than innocence, is the de facto situation.

People who are charged are often referred to as “offenders” when arrested and when charged.  If we posit a crescendo of assumptions as a case moves through the system.. it may seem unsurprising that by the point of conviction those assumptions hold firm.”

Media coverage contributes to this situation.  Despite lip service to innocence through statements like ‘the charges have not been proven’, media reporting generally embodies presumptions of guilt.

The legal process

One of the main factors leading to wrongful conviction is what Roberts calls ‘the subordination of the defense’.  The Crown has far more resources to put into any prosecution than are available to the defense, including not just lawyers but access to investigators and experts.  Defendants may be held in custody as a case drags on for months before a hearing.  They are at risk of losing a job, or a house, or custody of children while a criminal case is waiting to be heard.  Even when a defense is mounted, limits on time and money may mean that “a winning mens rea argument may go unmade, or an affirmative defense that could and should triumph may never be investigated or voiced”.

In more than 90% of criminal cases, there is no trial, so there is no objective process to determine whether the charges are in fact accurate.  Quite a bit of research has shown that people may plead guilty to things they did not do in order to get out of jail, because they cannot afford a proper defense, to spare family the travails of a trial, or because defendants have been threatened with a much worse sentence if they go to trial.

Problems of plea agreements

Also, as pointed out by a Canadian commission to reduce wrongful conviction, there is rarely any independent scrutiny of a plea deal to make sure that the rights of the accused have been protected.  And, as Roberts writes, trials are very uncertain endeavours – for example due to unrepresentative juries (an issue very much in the news in Canada recently), or juries that fail to understand or follow a judge’s instructions (for example to disregard some piece of testimony or evidence).   Given what we know about the foibles of human judgment, there are many reasons to question whether juries, or even judges, are immune from biases.

As a result of all these factors, Roberts argues, the standard of proof in most criminal cases is not actually ‘beyond a reasonable doubt’ but is much closer to ‘probable cause’ or a ‘balance of probabilities’.   “…there is no reason for blanket assumptions that conviction connotes crime commission, and every reason to assume that some unknown but potentially large proportion of convictions are imposed in the absence of factual guilt.”  Or to put it another way, “a function of the criminal system viewed as central to its work—matching legal guilt as closely as possible to factual— is shaky to an unknown and potentially large extent”.

Made worse by poverty

These problems are exacerbated because the majority of people who come into contact with the criminal justice system are poor.  “Poverty may be criminogenic—in the sense of making one a ‘criminal’—not… merely because it leads to crime commission, but because it leads to inadequate or absent lawyers, and to … police, judges, or prosecutors… unrestrained by fear of accountability, and to plea bargaining at which one is disadvantaged in every sense: by the clout one has with one’s lawyer and with the prosecutor; by the limits on defense counsel’s resources, influence, experience and skill; by the assumptions of guilt and feelings of contempt entertained by decision-makers such as judge, juror, and lawyer; by an inability to make bail and so on.”  In other words, every aspect of the system is harder for people who lack means.

That’s not all…

All these factors lead to many situations in which people are found guilty when they should not have been.  But that’s not all…  “Even if legal and factual guilt were as closely matched as possible, a huge list of [other] concerns would remain, including excessive use of the criminal law, police, prosecutorial, judicial, and correctional abuse; race- and class-based disparities in the application of the criminal law… and in the availability of paths away from criminal conviction; harsh and counter-productive sentencing and harsh and counter-productive consequences of arrest, detention, charge, conviction, and sentence.” (Links added).

In other words, we have lots of room for improvement to live up to the idea of justice.

Anna Roberts’ original paper is available to download on SSRN.



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