Lecture 23

Wrongful Imprisonment and the Confirmation Bias

What is a Wrongful Conviction
A wrongful conviction is a failure of justice that occurs when a person is
convicted and punished for a crime that they did not commit.
The wrongful conviction genre of
documentaries are extremely popular…
 Wrongful Convictions in Canada and the USA
• As at 2014, there were over 40 documented cases of wrongful convictions in
Canada
• As at 2015, there were at least 23 exonerations in Canada

• Huff et al. (1986) conservatively estimate that about 0.5% of all felony
convictions in USA are incorrect
• Conway (2007: 14): of the 200 people in the USA exonerated by DNA evidence
• An average of a 12 year prison sentence was served
• 176 were convicted of sexual assault
• 14 were on death row
• Radelet, Bedau, and Putnam (1992) estimate that in the USA, at least 23
individuals had been wrongfully executed (Goff, 2020: 306)(!!!)
What are the leading causes of wrongful
convictions
According to Goff (2020: 307-308) there are three main causes of
wrongful convictions:

1. Eyewitness error

2. Faulty forensic evidence

3. Police and Prosecutorial misconduct

The Confirmation Bias is a type of selective thinking whereby one
tends to notice and to look for what confirms their beliefs, and to
ignore—not look for—or undervalue the relevance of what contradicts
their beliefs.

“In 1620, a philosopher named Francis Bacon found that once people
adopt an opinion, they will look for anything to support and agree with
that opinion. Bacon also noted that it is a “peculiar human tendency”
to be more moved by positives than by negatives.”
Syrus, P. Confirmation Bias, Ethics, and Mistakes in Forensics.
Example:

“When men wish to construct or support a theory,

how they torture facts into their service!” (Mackay,
1852/1932, p. 552)
Dr. Daniel Goldhagen…

In 1977, Goldhagen entered Harvard

University, and remained there for some
twenty years - first as an undergraduate
and graduate student, then as an assistant
professor in the Government and Social
Studies Department
https://web.archive.org/web/2011060412
2755/http://www.news.harvard.edu/gazet
te/1997/01.09/GoldhagenWinsGe.html
• In Germany during the 19th century, why did the German Government
emancipate the German Jews (Bartov, 1996b, p. 34; Finkelstein, 1997,
p. 51)?

• Throughout the 19th C and up until 1941, Russian Jews experienced

far more violence than the Jews in Germany. So why didn’t the
Russians try to exterminate their Jewish population (Finkelstein, 1997,
p. 41; Hilberg, 1997, p. 724)?

• Why did Germany’s supposed intense hatred of the Jews suddenly

seem to disappear after World War Two (Bartov, 1996b, p. 34)?
 “…a high proportion of [Nazi] Party members were not extreme
antisemites; rather, they shared an antisemitism that one could
define as pervasive, yet not necessarily murderous, perhaps even
‘moderate’. But it was not only the membership of the Nazi Party
that may have been ‘only moderately’ antisemitic. This kind of
moderate antisemitism was shared by a considerable part of the
German population, although its pervasiveness is difficult to
estimate (also see Bankier, 1992, p. 72; Heim, 2000, p. 320; Johnson
& Reuband, 2005, p 284; Kulka, 2000, p. 277).

Consequently, as Raul Hilberg (1997) argued: “By the end of 1996 . . .

much of the academic world had wiped Goldhagen off the map” (p.
725).
The “Confirmation bias is perhaps the best known and most widely
accepted notion of inferential error to come out of the literature on
human reasoning.” (Evans, 1989, p. 41)
 Hunters accidently shooting each other…
“[The father] Stephen Long failed to identify his son in the bush despite
saying he spent two or three minutes identifying his target with his
naked eye and his rifle scope.”

New Zealand Deerstalkers Association president Bill “O'Leary said a key

message the association gave to hunters was to clearly identify an
animal's head, neck and shoulders before shooting - rather than
shooting at “bits of an animal”.”

O'Leary: "We don't know how it can happen – I will be blunt about it –
we don't know. Guys who have shot other people were absolutely
convinced they were shooting at deer.”
https://www.stuff.co.nz/southland-times/news/68773129/hunting-tragedy-puts-spotlight-on-
camouflage-gear
 An Elderly Woman…
Left eye

Nose

Mouth

Chin
 Actually, it’s more accurately a young woman…
Left Ear
Left eye

Nose

Chin

Necklace

“If a man will begin with certainties,

he shall end in doubts; but if he will Young woman Elderly woman
be content to begin with doubts, he
shall end in certainties.”
― Francis Bacon
But what does the Conformation Bias have to
do with policing?

Can you detect the confirmation bias at play in the following clip?
"I think it’s best left for the courts to sort it out… I know the facts, you
won't know the facts, you'll know some of it… I'm not going to discuss
it any further".
—Detective Inspector Steve Rutherford
The Amanda Knox case…
“In the United States, Scheck and his colleagues (2000) reported that
more than 25 percent of all prime suspects were excluded prior to trial
as a result of DNA testing conducted in 18,000 criminal cases. In other
words, 4,000 of the prime suspects in cases were wrongly accused.”
(Goff, 2020: 306).
 On page 54 in Section 7 c) titled “In-Custody
Informers”, it states:

“…determining the feasibility and appropriateness

of other investigative techniques including
undercover operations, Dialed Number Recorder or
consent authorizations, to confirm the evidence of
the in-custody informer, while being aware that
with some techniques the in-custody informer will
become an agent of the state”

In Section 7 e) it states “obtaining advice in the

preparation of any search warrants seeking
confirmation of the information received from the
Ministry of Community Safety and Correctional Services
in-custody informer…”
Policing Services Division Major Case Management
1201 Wilson Avenue Building E, Suite 225 Toronto ON M3M 1J8
Telephone: (416) 235-3806 Facsimile: (416) 235-3818 Question: if you are a detective and all
October 1, 2004 2
evidence points to just one person, does
Ontario
this mean they are guilty?
So how can Canadian police officers and Crown prosecutors
best ensure they don’t fall prey to the Confirmation Bias?
Perhaps the key is to always have one investigator whose sole job is to:
1. Try and discredit an investigation team’s favourite emerging and settled upon
theory/ies
2. Try and refute every piece of evidence that police will use to convict their prime
suspect (and repeatedly identify alternative possible suspects)
3. Come up with alternative theories that could perhaps explain the crime

Basically, during every serious crime investigation, there needs to be the official
appointment of an an unrelenting and highly determined devil’s advocate

Imagine how easy it would have been to discredit Teina Pora as a viable suspect had the
above approach been used…

“Venus and Mars” (2016)

https://tubitv.com/movies/466372/true-crime-venus-and-mars?start=true
“This isn’t about proving we’re right. This could easily
just turn out to prove us wrong. It has to be about
getting to the truth.”
Summary
• Wrongful convictions—their frequency and causes…
• Confirmation Bias—what is it and how does it “work”…
• Explored what can be done to protect oneself from felling prey to the
Confirmation Bias.
• Repeatedly put time aside to actively discredit one’s favourite theory
• Allocate one detective or Crown prosecutor who’s sole job is to try and
discredit an investigating team’s most popular theory/prime suspect—
basically, appoint a devil's advocate…