Wrongful Conviction and Defence Advocacy

“The presumption of innocence is a hallowed principle lying at the very heart of criminal law. It confirms our faith in humankind.”

At 16 years of age, David Milgaard was charged with the rape and murder of Gail Miller. He served 23 years in prison for a crime he did not commit.

He recently addressed young law students at the University of Calgary. Reflecting on his long road to exoneration, he states:

The system does not always guarantee justice.  Sometimes it is something that needs to be fought for. Sometimes it is something is earned.[1]

Post-DNA Exonerations

The system failed David Milgaard. And unfortunately, Milgaard’s experience is not an isolated incident. Since the advent of Deoxyribonucleic Acid (DNA) profiling, 356 people in the United States have been exonerated by DNA testing, including 20 who served time on death row.

These are cases where individuals convicted, sentenced, and served years, and even decades, in prison, for crimes we now know, definitively, that they did not commit.

Wrongful Conviction and Social Self-Reflection

Cases such as David Milgaard’s are tragic. They serve to instill upon us, as a society, a sober appreciation of our shortcomings. Within our criminal institutions, the system by which we investigate, prosecute, and pass judgment, is a human process. It is imperfect. Despite our best efforts, and our best intentions, wrongful convictions do occur. Mistakes are made.

But cases such as Milgaard’s serve an important role. They provide us, as a society, with a valuable opportunity for collective social reflection. We are all stakeholders in our system of criminal justice. The institutions which serve as tools to prosecute, pass judgment, and punish extend transcend the confines of courtroom or prison bars. The manner in which we treat persons charged and convicted of crimes reflects on the present state of our communities, our culture, and our society.

Where the system fails individuals such as David Milgaard, we must, every one of us, shoulder our share of the blame. These cases provide us with an opportunity to learn how, and why the system has failed these persons. They teach us what we can do to make sure it does not happen again in the future. Most importantly, they compel us to carefully reflect on what we value.

As we reflect in this manner, what should cause us the most concern, is that for every case, such as David Milgaard’s, we can never know for sure, how many other persons have been wrongfully convicted. The best we can do is to maintain confidence in the legal process, and hold fast to such lessons, and allow them to teach us the importance of foundational values that protect the exercise.

The Presumption of Innocence

Underpinning heightened concerns about wrongful conviction confirms our commitment to important of principles that underlie our justice system. Most significant, is the presumption of innocence. This principle was first articulated in the commonwealth, in a landmark House of Lord’s case, Woolmington v DPP.[2] The term is attributed to Viscount Sankey in his reasons for judgment, where he stated:

Throughout the web of the English Criminal Law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt… If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner… the prosecution has not made out the case and the prisoner is entitled to an acquittal…[3]

It has since been enshrined by s. 11(d) of the Canadian Charter of Rights and Freedoms, which states that

any person charged with an offence has the right… to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

The Supreme Court of Canada recently confirmed that the presumption of innocence is “a hallowed principle lying at the very heart of criminal law… [that] confirms our faith in humankind”.[4]

This principle pervades all aspect of our criminal law. It is a legal value that animates rules of evidence and criminal procedure, and numerous safeguards aimed at protecting against the punishment of the morally innocent.

The importance of this principle is reflected in the fact that in many, if not most cases of wrongful conviction, can be traced back to failures of the legal process to adhere to these derivative rules and safeguards. Often, this happens in hard cases.

Hard Cases

Unfortunately, too often, the terms like ‘innocent until proven guilty’ and ‘proof beyond a reasonable doubt’ are perceived as simple hyperbole or legal term of art, thrown about by defence lawyers depicted in popular sitcoms.

Sometimes they are uttered, or we are asked to heed them while we face of an unsavoury individual, clad in an orange jumpsuit, housed in a prisoner box facing a panel of his peers. Sometimes facing charges for the most heinous crimes – crimes that shock our conscience.

Thereafter, we are overwhelmed by the public outcry, where we see such individuals walk free, in the face of such crimes. We feel the inevitable visceral reaction that, someone should account for these wrongs. And it is certainly difficult, in many cases, to understand how the system could allow this to happen.

More troubling, is how persons, such as defence lawyers, could be morally justified not only in defending such individuals but doing so fearlessly. In certain cases, doing so when knowing, or all but knowing, that the very persons they are tasked to defend, are in fact guilty of the heinous crimes alleged.

These issues are troubling. Even to young defence lawyers embarking this path. As part of this blog series, the author hopes to canvass these issues. The goal is to attempt to offer modest, insight into the workings of the criminal justice, from the perspective of a young, and perhaps naïve and idealistic, defence lawyer. One who, despite the challenges, complexities and contingencies, maintains a deep belief and confidence in the importance of our criminal system of justice – and is humbled by the courage and dedication of those involved in it.

[1] David Milguard, Keynote Address, Wrongful Convictions Day (February 13, 2018)

[2] [1935] UKHL 1.

[3] Ibid.

[4]R v Antic, 2017 SCC 27 at paragraph 66 citing R v Oakes, [1986] 1 SCR 103, at pp 119-202.