Undoing the Damage of Wrongful Convictions

Christopher Sherrin for The Lawyers Weekly

October 23, 2009

In 1994, William Mullins-Johnson was wrongly convicted of killing his niece. In 2007, armed with undisputed proof of his innocence, Mullins-Johnson finally secured an acquittal from the Ontario Court of Appeal. But he had actually asked for more. He had asked to be declared innocent, rather than simply not guilty.

That request was denied. The court wrote that it had "no jurisdiction to make a formal legal declaration of factual innocence" and that there were "important policy reasons for not... recognizing a third verdict... of factually innocent." The court was undoubtedly correct on the jurisdictional issue, but was it correct on the policy issue?

Currently, the best that an erroneously accused person can hope for is an acquittal. That is no small prize, but there is lots of evidence that a not guilty verdict does not always undo the damage wrought by the accusation. Members of the public often continue to believe that the former accused is guilty of at least something. This belief can result in the former accused being ostracized from community and family. It can limit his employment opportunities. It can prejudice him in future dealings with the criminal justice system. It can damage him psychologically.

If a person is truly innocent of any wrongdoing, it is unfair to make him suffer these harms, especially when they might be mitigated or even averted by a declaration of innocence. But the law has long been resistant to the idea of offering something more than an acquittal.

The primary concern has been that by declaring some people more than not guilty, we would diminish the verdicts given to the remaining acquitted. Not guilty for them would come to mean just not proven to be guilty, and thus probably guilty.

This, in turn, may hurt the innocent. Among the "not guilty" is a mix of actually guilty people and actually innocent people. Ideally, the latter would all be able to obtain declarations of innocence, but the reality would be different. Some would try to obtain a declaration and fail (because of a lack of proof, perversity in the justice system or whatever) and others would not even try. In either case, the public would assume, even more than now, that the innocents were in fact guilty.

This is a legitimate concern, but it does not inevitably lead to the conclusion that we should not declare innocence. It necessitates a judgment call. Acknowledging that some innocents will not receive declarations, are we willing to risk the harms they will suffer so as to provide the benefits that will accrue to those who are declared innocent? The right answer is not perfectly clear. In coming to a conclusion, however, we have to keep several considerations in mind.

First, we cannot avoid the judgment call. By keeping the status quo, we are effectively deciding that the potential costs to the innocents who could not or would not obtain declarations of innocence outweigh the potential benefits to the innocents who could and would.

Second, we cannot forget that the known innocent appear to want official declarations of innocence. Several wrongfully convicted Canadians have specifically sought such a declaration (Gregory Parsons and Steven Truscott, included). Many others have expressed a deep desire for one.

Finally, and perhaps most importantly, we cannot ignore the fact that we already declare innocence in Canada, albeit unofficially. Criminal court judges, civil court judges, state officials and royal commissions of inquiry have all, on more than one occasion, declared that one person or another was truly innocent of a crime.

Indeed, it is a little ironic that the Ontario Court of Appeal effectively declared Mullins-Johnson innocent while refusing to officially do so. The court wrote, for example, that he was "wrongfully convicted" and "the subject of a terrible miscarriage of justice."

It is good that we effectively declare innocence in all of these ways, but the result is that we reside in an uncomfortable middle ground. Not only do we not officially declare innocence, we do not declare all the demonstrably innocent to be innocent. Very few receive a governmental acknowledgment of innocence and even fewer become the subject of a commission of inquiry.

Declarations of innocence are also difficult to obtain through the court system. Criminal judges are under no obligation to declare innocence, even when it is patent, and criminal juries are incapable of doing so, delivering nothing more than a bare verdict.

The real debate should focus not on whether we should declare innocence, but on how we should most wisely do so, in order to offer all innocent accused a fair chance at leaving their erroneous prosecution truly in the past.

Christopher Sherrin is an assistant professor at the University of Western Ontario Faculty of Law.

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