Unreliable Evidence and Wrongful Convictions: The Case for Excluding Tainted Identification Evidence and Jailhouse and Coerced Confessions
Criminal Law Quarterly, Vol. 52, p. 210, 2007
14 Pages Posted: 21 Jun 2008
Twenty years ago in his excellent treatise Charter Principles and Proof in Criminal Cases, David Paciocco carefully canvassed the case for a constitutional right to have inherently unreliable evidence excluded under the Canadian Charter of Rights and Freedoms and the American Bill of Rights. In the end, Professor Paciocco concluded that no such right existed under American jurisprudence and that the exclusion of unreliable evidence should not be considered a principle of fundamental justice under s. 7. Professor Paciocco was undoubtedly correct in his legal analysis in 1987 and his predictions that Canadian courts would not recognize a Charter right to the exclusion of unreliable evidence proved correct.
These conclusions were, however, penned before the experience with wrongful convictions became well known. In calling for an ability of judges to direct verdict of acquittals in the face of manifestly unreliable evidence, former Chief Justice Lamer has recently concluded that "the recent spate of demonstrated convictions of innocent persons are proof that juries are not always reliable. It is no longer acceptable for the criminal justice system to place blind faith in the perceived innate good sense of juries." Similar conclusions could support a greater willingness to exclude evidence that is manifestly unreliable in light of the experience of wrongful convictions. I will argue in this article that the Supreme Court's continued unwillingness to exclude evidence because of concerns about its reliability should be reconsidered in light of the experience of wrongful convictions. I will examine in particular the case for excluding tainted identification evidence, jailhouse confession and coerced confessions, all forms of evidence that have played a role in past wrongful convictions.
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