Wrongful Convictions and proposed remedies to reduce such convictions

“Better that ten guilty persons escape than one innocent suffer”
– william Blackstone

Abstract –

The following research paper explores the concept of wrongful convictions, the prevalence in India as well as other countries, underlying factors that lead to such convictions as well as the proposed remedies keeping in mind the need for the present and creation of a provision for the future, looking at the direction the current trend is headed.

The Reasons that have come up are those that can be rectified, collectively as a system, although they are very normal when it comes to notice, the potential that these reasons for wrongful conviction carry are enormous and tend to disrupt the lives of not only the person accused, but also the people around him or her, in most of the scenarios, the dependents are those whose lives are disrupted in a way that they cannot go back to normal again.

This paper also includes some suggestions, which though might appear farfetched for the moment, are definitely worth a read and a consideration.

Keywords – Wrongful conviction, execution, exoneration, Eyewitness, Forensic Evidence

Introduction –

The pillar of any justice system in the world (criminal or civil) relies predominantly on the accuracy in terms of conviction of its guilty and no harm to the innocent. This is easier said than done because imparting of justice relies heavily on the evidence available and the form in which it is available e.g. CI’s (Confidential Informants), DNA, Forensic evidence, eyewitnesses (their errors) and so on. And inaccuracy in any one or more of these leads to a wrongful conviction of an innocent and such erred convictions cannot always be undone.

According to the annual report of 2019 published by the National Registry of Exonerations, the percentage of wrongly convicted individuals in the US lies ranges between 2% to 10%, and a startling 4% out of every 100 people sentenced to death are innocent.

In a country like India where the conviction rate has consistently remained on the lower side, the ramifications of such convictions have far reaching effects on the person who is wrongfully convicted.

Keeping in mind the statistics and the overall effect of such erroneous convictions that further stresses the established principle that whenever law falls inadequate and convicts an innocent, the consequence of such injustice leads to social injury and further stresses the “already stressed” relation between the people and the judiciary. Hence, the need of the hour is to examine the existing modus operandi and come up with changes in laws that would at least minimize the rate of wrongful conviction if not eradicate completely.

Research Methodology –

Accepting that there is no concrete way of knowing an accurate number of wrongful convictions coupled with the absence of a control point or methodology that can gauge and give the exact number and establish a defined approach, the reliance for collection of data points as a source has predominantly been upon websites, blogs, research papers, articles and annual/periodic reports published by government as well as websites of various governmental as well as credible non-governmental agencies and organizations.

Review of the literature –

Wrongful conviction can be defined as the conviction of a person or persons for a wrong that he or they have not done and are being put away for the same on account of either one or more than one legal shortfalls.

Other causative factors such as (especially in a country like India) access to courts, affordability for someone to defend their case on account of lack of adequate financial resources, inaccuracies in reports on account of shortfalls in technology and tools, erroneous handling of critical pieces of evidence either out of shortsightedness or deliberate negligence.

Another critical point that comes up upon looking at the available data from a statistical perspective, is the inordinate delay that goes on for endless months, years on account of the ratio of 1 judge presiding over roughly a million cases, which leads us to conclude that the huge backlog of cases infringes upon the provision of the Constitution of India via Article 32^[1] that guarantees its citizens protection of not only their rights but also remedies for the enforcement of the same in the advent the need arises.

This strongly establishes the apparent fact that wrongful conviction does occur, with passing years has begun to, at an alarming rate as well, the major challenge here is to determine how frequently it occurs and hence, the reliability of data supporting convictions has considerable limitations in terms of both visibility and accuracy.

Kali Ram Vs. The State of Himachal Pradesh (September 1973)^{^[2]} – is a credible scenario of a very close case of wrongful conviction, the evidence presented clearly pointed out disconnect at various levels, right from the testimony of witness Sahi Ram (PW 4), the letter PD received by the Deputy Commissioner and the 3 part deposition of Parma Nand (PW 14) court observed that there should be evidence confirming that the accused is guilty and not lean towards “May be Guilty” considering that the evidence submitted should be devoid of any ambiguity and thereby acquitted the accused Kali Ram.

The motive behind this decision as the court rightly observed was no one wants the guilty to be acquitted, at the same time an innocent getting convicted would further lessen the confidence that the common person has in the judicial system.

In thecase Antar Singh Vs the State of Madhya Pradesh^{^[3]}, of the 19 persons arrested, 15 were charged u/s 395, 397, 109 and 120B of the IPC.

Out of these 19 people, 13 persons were acquitted by the Sessions Judge one of them being Antar Singh, it was against this acquittal that the state of Madhya Pradesh appealed to the High Court.

The High Court further observed that the Sessions Judge had erred by not considering the identification evidence on the grounds of the delay that had happened for the identification test (12 months after the occurrence and 7 months after arrest of Antar Singh).

The High Court also further observed that there was no explanation for the delay in conducting the test identification provided by the prosecution.

The inconsistencies in identification of the witness also added to the benefit of the doubt to the appellant Antar Singh and clearly emphasized that it cannot be completely relied upon.

The case clearly emphasizes a critical obstruction, delays and incorrect approach to a very critical aspect of investigation, an identification test and its effects on the possible outcome of a conviction of a person.

The other aspect that is evident is the total time that has elapsed between sequences of events.

In India, Judiciary symbolizes not only security but also a most trusted resort when it comes to getting any grievance addressed, but it cannot do so in the manner of efficiency as expected because of the time taken for a petitioner to get their matter to trial goes on for not just months but many years.

Indian Law relies on the fundamental principle of “Every man is innocent until proven guilty” however, oftentimes, especially in criminal cases an accused is arrested and is either kept behind bars or remains behind bars for years together before his case makes it to trial in the court.

The most common factors for such instances is that either the accused are completely illiterate in terms of the arrest – to – court proceedings, completely unaware of their legal rights and hence, are very commonly taken advantage of, or are so poor that they resort to remain behind bars as they do not have any means to pay for their bail. The sad plight is, by the time their turn comes up or the case reaches trial, they would have already ended up serving time for punishment of the crime for which they have been arrested but not proved yet. This clearly flags the failure of the Judiciary in protection of the rights of the citizens.

Hussainara Khatoon and Others Vs. The State of Bihar (1979)^{^[4]} – The sorry state of undertrials came to light when various articles were published in the Indian Express that expressed the pathetic conditions of prisons in Bihar and detention of several Men and Women as undertrials in the prisons between 2 to 5 years for minor charges.

The Supreme Court, citing Article 21 from the constitution of India, did admit that a large number of prisoners that were charged with offenses that were bailable, were still imprisoned because either they were too poor to furnish bail amount or no one submitted application for bail on their behalf.

From the above referenced cases, it thus becomes very evident that the effects of a wrongful conviction on a person can be long lasting. And these effects would not relegate only to physical aspects, but would also impact an individual at various levels like monetary, psychological, social etc. which may either take years to heal or may never heal at all; not to mention the social stigma associated with such incidences and the after effects on the person’s employment, relationships and so on.

The above mentioned after effects are those that are discernible, in India, these again are not medically investigated as a part of a routine established protocol to adhere and do not have remedies readily available for treatment.

Major factors for wrongful conviction – A brief analysis:

There is no denying that the crime rate has been on the upward trend since the last few years, strikingly, it is also being seen that the ratio of wrongful convictions too is on the rise.

Data analysis from the Prison Statistics India (PSI) clearly indicates that over 65% of the total population in prisons is undertrial.

PSI report further states that this number has increase by ~2% in the last few years

Although the above 2 points do give a certain visibility towards the percentile of prisoners awaiting for their case to go to trial, it also shows a very concerning limitation – The number of people wrongly convicted is completely missing or not accurate, to say the least – This is a sorry state of affairs for a country like India and requires implementation of check points on war footing.

For victims exonerated and set free of their conviction, the actual challenge begins once they set foot in the outside world.

The case of Gopal Shete V. The State of Maharashtra (May 2017)^[5] who was wrongfully convicted of rape and acquitted after seven long years, had to scrounge for every meal and live with a life that was completely upturned, not just his, but his entire family’s too.

In order to understand any issue at hand, it is imperative to first try and understand the root cause followed by an analysis to remedy such causes, judiciary too is prone to making wrongful convictions and some of the reasons identified through the course of analysis are –

Inadequate Defense
False Confessions
Eyewitness Misidentification
Lack of or Misuse of Forensics

One of the most commonly found reasons is complete lack of or inadequate defense, the underlying cause for this, again ranges from incompetence of a lawyer, overworked or ill prepared on a given hearing to the person in question not able to afford a lawyer’s fees and instead leaving it to the police and government to decide on the next steps. In many instances, to avoid lengthy hearings and trials, innocent defendants are ill advised into plea bargaining.

Overworked or overburdened lawyers oftentimes tend to thoroughly investigate alibis, call on or consult experts, or in many of the instances, even fail to show up for hearings.

The other factor that has become a topic of analysis and study is false confessions. Researchers that have tried to understand the reason behind this have found very common scenarios such as coercion into giving a false confession via either a real or a perceived threat either by the law officials or by the opposite party itself.

The suspect being unable to reason due to a variety of factors like exhaustion, hunger, stress, duress, in some situations, mental limitation or person who is completely unaware of rights and led to believe into confessing a particular statement as the “right and only way out of a situation”, more commonly, instilling fear to yield a confession to prevent harsh punishment

Interrogation techniques that are devious in nature e.g. fabricated statements about any piece of incriminating evidence.

The next factor is the one that makes up a considerable contribution – inaccurate or even falsified eyewitness identification can impact a case very adversely, by causing distraction of the investigator and pushing it on an innocent person.

An incorrect identification can not only sabotage a case, but also cause loss of valuable time and resources and lead to a lot of reworking.

Not applying correctly or not applying at all of Forensic science has been a factor that has been growing when it comes to wrongful conviction, this includes convictions based on invalid, unreliable or even tempered forensic evidence.

The other factor when it comes to Forensic evidence is the changes in scientific understanding and application, something that takes years to emerge and even more to be accepted and applied. Wrongful convictions based on such instances often face a lot of difficulty when it comes to proving innocence.

Based on the above factors leading to wrongful conviction, below are few instances wherein people have spent more than 20 years and above incarcerated:

Vishnu Tiwari V. State of UP (2000)^[6] – was found guilty of rape and brutality under SC/ST act in 2003, based on the FIR filed by the woman, her husband and father in law accusing Vishnu of sexually assaulting, beating and raping the woman when she was 5 months into her pregnancy whilst she was on her way to work.

Vishnu served 2 years as an undertrial, was then sentenced to life in 2003, convicted for rape under Sections 376 and 506 of the Indian Penal Code and was sentenced to life in prison under Sections 3(1)(7) and 3(2)(5) of the SC/ST Atrocities Act.

[Time served: 20 years]

Malcolm Alexander Case (1979) – Thanks to an ineffective trial lawyer coupled with a flawed eyewitness, the lives of Michael Alexander and that of his family was destroyed.

Michael served almost 38 years for a rape that DNA evidence proves that he did not commit, and always maintained that his innocence was arrested for a crime, the basis of which was flawed. His lawyer failed in most basic duties when it came to putting up a defense, was disbarred subsequently when complaints of neglect were filed against him in dozens of cases.

Alexander was subsequently released from the Jefferson Parish Jail in 2018.

[Time served: 38 years]

Randolph Arledge Case (1981) – Was wrongfully convicted of Rape and Murder on the basis of a testimony for “plea deal” although there was a clear lack of physical evidence coupled with alibi confirmed by several witness connecting Randolph Arledge to the crimes.

[Time served: 29 years]

Proposed suggestions/Remedies –

Looking at the overall scenario and the need to curb the rising number of wrongful convictions, the society as a whole needs to come forward and do their bit. The need of the hour is to gain a thorough and accurate visibility in the number of wrongful cases that are presently undertrial and serving time in India. The NHRC can definitely play a pivotal role in initiating, aiding and fast tracking investigation of such cases via creating a pool of volunteers.

Colleges and Universities can initiate programs wherein they can send their creamy pool of talent to remote and rural places to spread legal awareness.

Fresh graduates once enrolled as Advocates can add further value by providing assistance on a Pro Bono basis.

Independent committee or group that would take a feedback of and on behalf of the counsel to gauge the overall work of the counsel for his client

Proposal for the government would be to introduce and include fundamentals of legal rights and awareness in primary and high schools so that minds are caught young and sense of awareness in the right manner is inculcated early on in life, this will also enable young minds to differentiate between right and wrong early in their lives.

Prison surveys conducted by the state government (and reported cumulatively to the central government) on the overall condition of the prisoners, the prison, daily necessities and amenities, behavior of the prisoners, psychological evaluation of the prisoners at least on a monthly basis, this report can also include areas of improvement identified and the points of contact responsible to implement the recommended changes.

The above point would require talent pool and robust infrastructure, this gives the opportunity of creation of a skilled workforce for various areas involved and thus would generate employment as well as garner more exposure to few skills/avenues that are erstwhile being overlooked in the present race for “Lucrative” careers and would also foster a sense of accountability and responsibility to bring about a positive change within the society itself on a proactive basis in the long run.

Introduce a pecuniary compensation to the victim who has been wrongly convicted, provide employment and shelter to such persons till they are well equipped to be self-sufficient and also arrange for periodic psychological evaluations for such people as they tend to suffer most, because although the conviction may have been overturned, but society has long memories and this coupled with their own traumatic experience makes living very difficult as not only are the lives uprooted, but the individual also is left scarred for, in most of the cases, a lifetime.

Conclusion –

Overall it is pretty evident that the foundations of judiciary need to be thoroughly looked at and revamped, not just to suit today’s needs but also to make room for amendments keeping in mind the future. Each department has to do its due diligence for the entire system to function seamlessly as a whole.

“Injustice anywhere is a threat to Justice… Everywhere!”