Wrongful Convictions in Plea Bargaining

Wrongful Convictions in Plea Bargaining
  • Anthony Conference
    Author: Kristin Smyth, Law Student, Osgoode Hall

    In 1989, Anthony Hanemaayer plead guilty to a sexual assault Paul Bernardo later confessed to. With AIDWYC’s help, Hanemaayer was exonerated in 2008.

    It is becoming increasingly apparent in Canadian society that the justice system is not perfect and that innocent people can and are convicted of crimes that they did not commit. The wrongful convictions of individuals like Guy Paul Morin and David Milgaard have received considerable attention in the media and legal community. The concept of innocent people who plead guilty during “plea bargaining” is receiving more attention amongst legal commentators and laymen alike. Much of the concern stems from the contested role that a “bargain” should play in a judicial system dedicated to due process. It has been argued that the use of the word bargain implies that the justice system is a commodity that can be bought by those who understand how to work the system.[1] Canadian citizens have a right to the presumption of innocence and a right to a fair trial. “Backroom negotiations” with prosecutors call into question the fairness of the system.

    Why would an innocent person plead guilty?

    The question you have probably been asking is why would anyone in their right mind plead guilty to a crime that they did not commit? While it may be difficult to imagine, there are many reasons. First, going to trial is scary. For an accused, going to trial means uncertainty. Their lives are in the hands of the judge, and sometimes a jury, and no one can know for sure what either will do. On the other hand, if they negotiate with a Prosecutor, it is more likely they will receive a more lenient sentence than were they to go to trial and lose. This perceived security can be enough for an innocent person to plead guilty and admit to the crime, rather than risk a trial where the outcome can be much worse. Professor Ellen S. Podgor argues that “our existing legal system places the risk of going to trial…so high, that innocence and guilt no longer become the real considerations.”[2]

    Another reason someone may plead guilty is to avoid the significant financial, psychological and opportunity costs of going to trial. Not only can the trial process be terrifying to an accused, it’s expensive and stressful. Going to trial means usually means paying a lawyer for countless hours of work for a trial which could last months or even years. Furthermore, the accused cannot typically work while a trial is ongoing, costing them even more money.

    Psychological studies have assessed the decision making process that occurs when an innocent person is accused of something that they did not do. In one such study, college students were left in a room with one other “student” to complete logic problems. One of the students was then, wrongly, accused of cheating and given the option of either accepting a plea bargain or having to appear before the Academic Review Board (where 80-90% of students were found guilty). 56.4% of the innocent participants falsely admitted guilt in order to reduce the punishment given. Admittedly, the situation just described cannot capture the pressure and gravity of the choices that an innocent accused must make when standing before the criminal justice system. Nevertheless, the anxiety experienced while anticipating punishment is similar and the study can offer important preliminary insights.

     Why is the problem largely unrecognized?

    In 1973, the Ontario Law Reform Commission described plea bargaining as “an unhealthy philosophy quite alien to our concept of an open, fair and public administration of justice.”[3]Despite Canada’s historical unease with how plea bargaining interacts with judicial fairness, we have scant answers to our many questions concerning wrongful convictions in plea bargaining. Why don’t we know how many people plead guilty to crimes that they did not commit? The simple is because we rarely hear of the cases again. They don’t appeal. They don’t cause a fuss. Nobody asks questions. Wrongful convictions often only come to light as a result of the significant effort and resources expended by individuals in a search to uncover the truth.[4] It is often only the most serious of cases that benefit from those efforts and resources because the pay-off from success is greatest.[5] It is possible that many of the cases which involve innocent people who plead guilty were lesser offences and the convicted either did not have, or felt that it was not worth, the resources that would have been required to discover the truth. Based on these factors, it is likely that any study which looks at the problem of plea bargaining and false self-condemnation will significantly underestimate the true extent of the issue.[6]

    What is to be done?

    If Canada did not allow plea bargains, the justice system would come to a near standstill. Following the Supreme Court of Canada’s decision in R v Askov,[7] approximately 50,000 cases, in Ontario alone, had to be dismissed due to unreasonable delay. In response, the Martin Committee was assembled to review and make suggestions regarding pre-trial procedures in the criminal courts. The Martin Committee gave plea bargaining their stamp of approval to increase expediency. Today, a much higher proportion of convictions result from guilty pleas than from trials.[8]

    With the awareness that plea bargaining is not leaving the system anytime soon, how do we ensure that wrongful convictions do not occur? According to Judge H. Lee Sarokin, the only solution is “vigilance by all those involved.”[9] It is unclear whether this is the only solution. This is a question that needs to be asked by the legal community and more thorough research and discussion must occur if we ever hope to reach an acceptable answer.


    [1] G. A. Ferguson and D.W. Roberts, “Plea Bargaining Directions for Canadian Reform” (1974), 52 Can Bar Rev 497 at 550.

    [2] Ellen S. Podgor, “White Collar Innocence: Irrelevant in the High Stakes Risk Game” (2010) 85 Chicago-Kent L Rev 77 at 77.

    [3] The Law Reform Commission of Ontario, Report on Administration of Ontario Courts, Part II(Toronto: Department of Justice, 1973) at 119.

    [4] Ibid  at 4

    [5] Samuel Gross et al, “Exonerations in The United States 1989 Through 2003″ (2005) 95 J Crim L & Criminology 523.

    [6] Lucian E Dervan & Vanessa A. Edkins, “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem” (2013) 103 J Crim L & Criminology 1.

    [7] R v Askov, [1990] 2 SCR 1199.

    [8] Christopher Sherrin, “Guilty Pleas from the Innocent” (2011) 30 Windsor Rev Legal Soc Issues 1 at 2.

    [9] Judge H. Lee Sarokin, “Why do Innocent People Plead Guilty?” The Huffington Post (29 May 2012), online: Huffington Post <http://www.huffingtonpost.com/judge-h-lee-sarokin/innocent-people-guilty-pleas_b_1553239.html>.

    Conviction: The AIDWYC Blog is written by volunteer authors. The opinions expressed herein do not necessarily represent AIDWYC’s position or policies.

1 Comment

  1. Are there lawyers who work the nc area in regards to a forceful plea after DNA excluded the accused 2× unknowingly to the accused as well as numerous civil rights violated,assaults to get my brother to take the plea along with meds an the negligence, ineffective council of his court appt attorney.He was locked up in 05 finally he gave up on hope with no support in 08 being sent to central prison in Raleigh.Currently still incarcerated currently @ Lumberton correctional sitting on 7-8 more yrs left to go…PLEASE SOMEONE HELP UP HAVE THE CIRCUMSTANCE OF THE PLEA REVIEWED.PLEASE

    Reply

Submit a Comment

Your email address will not be published. Required fields are marked *