By Caroline Erentzen, York University and colleagues (more information at the end of the post)
This post is just under 1000 words and can be read in 4-5 minutes.
In the late 1980s, a series of DNA-based exonerations shook the Canadian criminal justice system, proving that innocent people could be (and had been) wrongfully convicted. Based on these well-publicized cases, we tend to think of the wrongfully convicted as men serving lengthy sentences for severe violent offenses, who have maintained a campaign of innocence over the decades. But these extreme cases belie the potential magnitude of the problem.
Less obvious, but almost certainly more common, are the wrongfully accused who are caught up in the criminal justice system and who do not proceed to a contested trial. At least 85% of criminal cases are resolved by way of a guilty plea rather than by a trial. There is good reason to suspect that many of these guilty pleas are entered by innocent persons. You heard that right – many innocent persons knowingly enter false guilty pleas every year.
Why would someone falsely plead guilty?
Most of us believe that we would maintain our innocence to the bitter end, asserting the truth at all costs. But that is the heart of the problem: claiming innocence is costly.
If the wrongfully accused person is denied bail (which happens often), they may spend a year or more in custody awaiting trial. This pre-trial delay is often much longer than the maximum sentence they are facing. While awaiting trial, which may be adjourned, postponed, or otherwise delayed, the innocent accused must watch as their life passes them by. They will likely lose their job, their profession, and personal relationships may suffer or fall apart (Covey, 2009). They will have lost two years of work continuity, leading to an awkward conversation at every job interview about the gap on their resume. If there is media coverage, they are generally described as if they were guilty despite the presumption of innocence.
The wrongfully accused parent faces the loss of their children, missing precious years of their child’s development including birthdays, graduations, milestones, and other achievements, all while waiting to assert their innocence at some future trial. Their children will be forced to grow up without the benefit of that parent in their life, an issue profoundly affecting single parents whose children may well end up in child protective services.
A system built for guilt
Even if the wrongfully accused person is granted bail and allow to return home to await trial, there are many additional hurdles. For both those in detention and those outside, there are considerable costs to mounting a legal defence. Legal defence from even a relatively minor charge can cost from $50,000 to several hundred thousand dollars. This is far beyond the reach of most Canadians, and a very serious consideration for any defendant.
Legal Aid is available only for the severely impecunious. For a single person with no children, Legal Aid is not available for those making more than approximately $17,000 per year. It is staggering to imagine how a person making this amount, or even quite a bit more, is supposed to pay for adequate legal representation that will likely run into six figures (Sherrin, 2011).
In addition to these financial considerations are more symbolic ones. While waiting for trial, the defendant and their family will bear considerable emotional stress. If you have ever waited on pins and needles to get the results of an important medical test or a job application, you can imagine the agony of waiting a year or two to find out how your criminal trial will resolve. Trials are never certain things, and an innocent accused who goes to trial may invest two years of life in pre-trial custody, pay $100,000 for a lawyer, and still end up being found guilty.
Then they make you an offer you can’t refuse
At this point, the offer provided by the prosecution begins to look less impossible. You are given the opportunity to plead guilty to a lesser offence than the one you would fight at trial. Because it is a lesser charge, the sentence will also be much more lenient. Rather than facing, say, ten years in prison, you may be offered a two-year term to be served in the community after six months. By the time you complete that sentence, you might still have been waiting in pre-trial custody to gamble with your life at trial. It starts to seem a little more reasonable to consider the offer (Brockman, 2010; Gross, 2008).
What you don’t know about the police is…
The police are allowed to lie to you. Most of us are taken aback by this fact, but it is true. Following a Supreme Court of Canada ruling in R. v. Oickle, police are permitted to misrepresent information to a suspect during interrogation. This includes lying about existence of evidence, as well as its nature and reliability. They can tell you they have witnesses or video surveillance when they don’t. They can tell you that you failed a lie detector and that it is 100% foolproof. These tactics may lead some accused persons to question their own recollection of events, distrusting their own memory (Wynbrandt, 2016). Others may wonder at how they police could possibly have such evidence, but believe there must be enough evidence to convict them.
Taken altogether, we see a clear picture of a system built to elicit a guilty plea. Proving your innocence involves a heavy burden. It is financially expensive. It takes years , potentially spent in pre-trial custody. You risk your job, your family. You miss out on irreplaceable time with family and friends. The police can deceive you about the case against you. You almost certainly won’t qualify for Legal Aid, and if you do, their funding is a fraction of what the government gives to the prosecution.
Rather than asking why an innocent person might plead guilty in these circumstances, we might wonder why anyone would not.
Dr. Caroline Erentzen (http://www.cerentzen.com; @cerentzen on Twitter)
Dr. Kimberley Clow (https://clowlab.blogspot.com/p/wrongful-conviction-research.html)
Dr. Regina Schuller (http://schuller.info.yorku.ca/)