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Guilty until proved innocent

23 September 2016

Miscarriages of justice are a fact of the legal system. Through the Exoneration Project, law and psychology students revisit cases looking for false convictions, and in the process teach each other new ways of thinking about facts.

When Henry Keogh was released from prison in December 2014, he had served 20 years of a life sentence for the murder of his fiancé, Anna-Jane Cheney, who drowned in the bath in the couple’s Adelaide home in 1994. But there was one big problem: Keogh was innocent. His conviction was a miscarriage of justice due to flawed forensic evidence that hinged on the bruises on Ms Cheney’s lower left leg.

In a more high-profile case, millions of viewers tuned into the American series Making a Murderer as it unpacked Steven Avery’s wrongful conviction for rape, for which  he served 18 years.

Both cases may seem to be one-offs, but in the United States it is estimated that between 0.5  and  5 percent of all prisoners have been wrongfully  convicted. Even the 0.5  estimate suggests a possible 7500  wrongful convictions in the US – every year.

Reliable statistics are hard to come by in Australia, but this doesn’t mean there are no errors in our justice system.

“The legal system is run by humans and  humans make mistakes,” says Dr Celine Van Golde (PhD ’13), Associate Lecturer in the School of Psychology at the University of Sydney. “Admitting something went wrong  with a case is tricky both personally and  politically, so it’s not easy to reopen a case. But just because it’s difficult doesn’t mean we shouldn’t try.”

Dr Celine Van Golde, of the University’s School of Psychology, started the Exoneration Project after receiving a letter from a jailed man. Photo: Justin Lloyd/Newspix.

Dr Van Golde heads up Not Guilty: the Sydney Exoneration Project, which seeks justice for wrongfully  convicted inmates. “The idea came from  a similar project I worked on in the Netherlands during my undergraduate degree,” she explains.

“When I finished my PhD, I received a letter from  a person in jail saying they had  watched a documentary and they believed what they saw there had happened in their case. They asked me to look at it, to see if I could help them because they were innocent.”

This led Dr Van Golde to talk to her colleagues about the possibility of starting an innocence-type project, and they all supported the idea. But this innocence project has a key difference.

“We have law and  psychology students working  together – the first in Australia to do this,” Dr Van Golde says.

Offered as a unit of study for  the first time in 2016, the Sydney Exoneration Project pairs senior law students with psychology honours students to collaborate on real-life cases and learn from each other’s fields. It’s experiential learning at its best: students read transcripts, watch video tapes of police interviews if they are available, research and debate various points and make a presentation to the group.

While we cannot reveal details of the current case as it is still unresolved, we can talk about what the students gained from it.

“A criminal case is not only about the law – it is far more complicated and scientific,” says Yeabee Kim (BPESS ’13), a participating Juris Doctor student who also studied psychology as part of her bachelor’s degree.

“The process gave me insights into how I can approach evidence differently,” she says. “It was challenging at times, as scientific reports can be confusing, but that is where the psychology students stepped in and helped the law students. We could analyse the evidence and the law in more depth and  in a new light.”

Third-year Juris Doctor student Zeb Holmes-Baer (BA ’13 MA ’14) is equally enthusiastic. “It was really beneficial working with psych students,” he says. “I found out about a lot of research that I wouldn’t otherwise have had any knowledge of, like the uncertainty of eyewitness evidence, mistaken identification, false memories, false confessions – things I might not have thought to question.”

Confidence is an important factor in law as it may be used to indicate reliability
Yeabee Kim

With that we have the big issues in play: false confessions to escape the duress of police questioning or to protect someone; the questioning techniques themselves; the conduct of line-ups and how they affect witnesses; and the nature of memory and how we construct memories based on our social conditioning.

Then there’s mistaken identity, which is the leading factor in up to 70 percent of miscarriages of justice. It’s a fraught issue. Holmes-Baer describes a phenomenon known as unconscious transference: “Where you identify someone from  memories that aren’t based on witnessing the crime.” He cites the case of a train-ticket seller who was held up at gunpoint, then identified someone who had an iron-clad alibi simply because he had sold that person tickets previously.

The level of confidence of an eyewitness is another issue at the very nexus of law and psychology. “Confidence is an important factor in law as it may be used to indicate reliability,” Kim says. “But it’s understood differently in psychology.” While a witness may be confident in identifying a suspect, Holmes-Baer says, psychologists are aware there isn’t really a strong link between high confidence and the accuracy of a memory.

While great advances have been made with DNA technology in proving innocence (or guilt), expert medical or scientific evidence can also influence verdicts. That said, experts often interpret the same evidence differently, and expert evidence deemed persuasive at trial can be rejected as unconvincing on appeal.

Senior Lecturer Miiko Kumar warns that even expert evidence can lead to false convictions and failed appeals.

Senior Lecturer in Evidence, Miiko Kumar (BA ’94 LLB ’95), who is collaborating with Dr Van Golde, emphasises that “the appeal process is supposed to weed out the flaws”. Despite this, she raises “the biggest disaster” – the Lindy Chamberlain case in the 1980s.

“This is where the system absolutely failed,” Kumar says. “Lindy Chamberlain went right up to the High Court and her appeal did not succeed, and  it was expert evidence that was the flaw.”

Chamberlain spent more than three years in prison for the murder of her daughter, Azaria. It was not until 1987 that she (along with her then husband Michael) was exonerated. It took until 2012 for the Coroner to declare that a dingo did in fact take Azaria.

In the short time since its inception, the Exoneration Project has attracted considerable support.  “We have collaborations within the NSW Police and we are talking to public defenders who want to help us if something comes out from  one of the cases,” Dr Van Golde says.

She mentions an offer of help from a specialist DNA scientist in the US, and letters of praise from former judges and barristers.

Kumar as well is a big supporter of the project. “Our students learn skills from  each other – it’s invaluable,” she says. “They teach each other to look at things differently.”

Written by Monica Crouch (BA (Hons) ’95)
Photography by Louise Cooper