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Collected Papers from Human Services Research, March, 2010

Public Lecture Eyewitnesses in Criminal : Lessons from the Miscarriage of Justice in Canada and Japan1）

IBUSUKI Makoto （Faculty of Law, Seijo University）

Introduction known as testimony － is problematic in two ways. First, it tends to create false This paper deals with witness testimony (a charges, and second, it may also result in a statement of criminal identification by an failure to arrest the actual criminal.”This is a eyewitness) which is one of the most quotation from a sentencing decision of the important issues to consider when we think Osaka District Court in 2004. about the problem of wrongful This reasoning can be applied to all cases of and the miscarriage of justice in criminal wrongful , which result in the trials. This issue of witness testimony punishment of innocent , as well as concerns the fields of both psychology and a failure to arrest the actual criminal. The law, particularly . question that must be asked is,“why would a “ Building a case based on an incorrect witness testify incorrectly? Does this happen criminal identification statement － generally frequently? And are witness testimonies

Figure 1 Source: Martin Yant,“Presumed Guilty: When Innocent People Are Wrongly Convicted”(1991)

１）This paper was based on my draft of Ritsumeikan Saturday Public Lecture Series in 2005. originally published in Ritsumeikan Journal of Human Sciences, No. 13, 117-131 (2007).

201 Collected Papers from Human Services Research, March, 2010 always so uncertain?” Japanese cases in which defendants have sought to undermine the credibility of witness The two pictures in Figure 1 are from a case testimonies as a way of achieving not-guilty outside Japan. Let us suppose that we are at . Finally, some ways to prevent the a scene of a and saw the man in the problems associated with relying on witness picture on the left. As a witness we inform testimonies will be suggested. the police that“I saw the criminal.”Then, if the man in the picture on the right shows up in front of us, would we not say that he is the 1. The Uncertainty of Witness Testimonies criminal? The man on the right, William Barnard Let us suppose a case in which a person Jackson, was convicted of having raped two says that they have seen someone committing women, and served 5 years in prison based on a crime. The initial questions that must be incorrect witness testimonies. The name of asked are whether this witness has really the man on the left is Edward Jackson, and seen the criminal, and whether they are he was the actual perpetrator of the crime of telling the truth. Firstly, the possibility exists which William was wrongfully convicted. that this witness says they have seen the Although these men share the same family criminal, although they actually have not name and look somewhat alike, they are two (false statement). It is also possible that such different people. In this case, because the real a false witness statements might slip into the rapist was found, William Jackson was saved. ’ testimony at . Secondly, even However, many cases of wrongful conviction if the witness has actually seen someone continue to occur where innocent people are committing a crime, their statement imprisoned, or even executed, as a result of identifying the criminal as X may or may not incorrect witness testimony. be true. It is possible that the real criminal The purpose of this paper is, firstly, to point may actually be Y, notwithstanding that the out the danger of witness testimony in witness genuinely believed that X committed criminal trials. That is, the potential for the crime. By being asked something like “X incorrect witness testimony to lead to cases of is the one who did it, didn’t they?”，the wrongful conviction. Secondly, this paper will witness might simply reply,“Oh, yes”(false investigate the process through which recognition). Generally speaking, issues of witnesses form their testimonies, and the false recognition, such as the latter case, factors that prevent the formation of reliable receive more attention when the reliability of testimonies. Following this, a scheme to witness testimonies is considered. However, evaluate the reliability of witness testimonies there are also cases such as the first example will be briefly discussed. Cases of wrongful of false statement where the witness says, or conviction from outside Japan will also be is pressured into saying, that they have seen studied, as well as considering current the criminal when, in fact, this is not true.

202 Eyewitnesses in Criminal Trials: Lessons from the Miscarriage of Justice in Canada and Japan（IBUSUKI）

The two following academic studies from witness testimony was the major cause of outside Japan illustrate how false witness wrongful conviction (see Figure 2 and 3). testimonies can lead to wrongful convictions That is almost half the cases of wrongful in criminal cases. The first study was lead by convictions were due to false witness Ronald Huff, a professor at Ohio State testimonies. The second study into the University in 1996 (Huff et. al., 1996). Huff prevalence of false witness testimonies in studied 205 known cases of wrongful cases of wrongful conviction was done by conviction and categorized each case Barry Scheck (Scheck, 2000). Scheck studied according to the major factor which caused 62 cases of wrongful conviction and isolated the wrongful conviction. Huff’s results various factors which may have lead to the illustrate that, in 100 of the 205 cases, false wrongful conviction in each case. Scheck then listed the factors causing miscarriages of Type of error number percentage justice from the most to the least frequently Erring eyewitness 100 48.8 occurring. The study revealed that false False testimony 21 10.2 witness testimonies were involved in 52 of the Error of law enforcement 19 9.3 62 cases (see Figure 3) or 83.3% of the cases, Pure error 16 7.8 Coerced confession 16 7.8 which far exceeds the other factors causing Frame up 8 3.9 wrongful conviction. In addition to the False testimony by law enforcemet 5 2.4 research done by Huff and Scheck, many Erring witness of police 3 1.5 other studies into wrongful convictions around 3 1 5 Malpractice in trial . the world demonstrate that miscarriages of Other malpractice 14 6.8 justice are often caused by false witness Total 205 100.0 testimonies.2） Figure 2 Sourse: Huff, R., Rattner, A. & Sagarin, E. (1996) Convicted But Innocent: Wrongly Conviction and Public Policy 2. Witness Testimony and Wrongful Convictions Type of error number ratio Erring eyewitness 52/62 83.8 Witness testimonies can be categorized into Erring blood test 32/62 51.6 two basic types. In the first category, the 31 62 50 0 Malpractice of police / . witness is the surviving victim, and the Malpractice of 26/62 41.9 typical testimony is,“this person attacked False science 21/62 33.8 me.”Therefore, this cannot include Hair analisys 18/62 29.0 Fragile 17/62 27.4

False testimony 15/62 24.1 ２）In Japan, there are so many advanced researches in False snich 15/62 24.1 this field. Itsukushima, Naka & Hara (Ed.), Psychology of Eyewitness (Kitaohji Shobou, 2003); Watanabe 15/62 24.1 (Sup.), Ichinose, Itsukushima, Naka & Hamada (Eds.), Research into Eyewitness Testimony (Kitaohji Shobou, Figure 3 Source: Scheck, B., Neufeld, P. & 2001); Niwayama(Sup.), Identification Witnessing, Dwyer, J. (2000) . Law and Science (Sinzansha, 2000).

203 Collected Papers from Human Services Research, March, 2010 cases. The other type of testimony is by a the police? If the criminal is an acquaintance of third party witness who is not related to the the witness, the witness is able to simply name victim. There are several factors leading to the criminal. However, if the criminal was not false recognition which are common to both known by the witness, the key issue will be witness types, which will be considered in the the process through which the witness following section. The overarching question identifies the criminal. The use of“line-up” that must be asked is how do trials fail to is the method most commonly taken. The obtain accurate witness testimonies? police make a group of people which includes First, the human characteristics of a witness the “line-up”，and request that the must be considered The age, intelligence, witness to identify the criminal. Another occupation and, in the case of trials which common method uses photographs for involve people of different racial backgrounds, identification. Photographs of the suspect and the race of the witness, can be major factors other parties not related to the incident are leading to wrongful convictions. Second, the shown to the witness in order for them to physical characteristics, such as the physical identify the suspect. The police also occasionally appearance, sex, and race of the person being use a method of composite photographs and identified, are also relevant. Furthermore, the drawing. These various methods are used to conditions under which the person was obtain witness testimonies, and in the process, witnessed committing a crime are also three major problems tend to occur. considered to affect the reliability of witness First, the reliability of the actual memory of testimonies. This includes the visibility of the the witness － that is, what might happen in incident; how long the incident was witnessed the witnesses’ process of remembering the for; the time of the day and year; the incident. Second, the process by which the attentiveness of the witness; the involvement witness recalls the incident - that is, what of a weapon; the seriousness of the crime; might happen when the witness delivers the whether the witness suffered psychological memories to the investigating authority and stress; the existence of violence; whether the the way in which this is recorded by the witness had consumed alcohol; whether the investigators. Third, the risk of false person is of the same sex as the witness; the testimony also arises - that is, the possibility length of the intervening period between the of the witness testifying something they did time the incident was witnessed and the time not actually witness, or deliberately making of testimony; and whether or not the witness false accusations against someone else. has had a similar experience to that of the Therefore, the reliability of the witnesses’ victim. However, because of a lack of space memory, the investigating authority’s and the need for greater expertise in recording of the testimonies, and the sincerity p s y c h o l o g y , t h e s e f a c t o r s c a n n o t b e of the witnesses’ intentions must be examined considered in depth in this paper. thoroughly in order to evaluate the overall How then are witness testimonies obtained by credibility of a witnesses’ testimony. When

204 Eyewitnesses in Criminal Trials: Lessons from the Miscarriage of Justice in Canada and Japan（IBUSUKI）

we hear media reports that“the criminal was witnessed,”we tend to assume that because “there is a witness, the case is already settled.”However, we need to remember that witness testimonies cannot automatically be treated as grounds for the conviction of a crime. We should always remember that, despite the huge impact of the words,“I saw the criminal”，there is a high risk of witness testimonies causing wrongful convictions. Figure 4

In the year after Mr. Sophonow was arrested, 3. Cases in Japan and Canada a was held in which the jury could not reach a . However, Mr. Sophonow (1) The Sophonow Case (Canada) was found guilty at his second trial. Mr. a. Outline of the Facts Sophonow appealed and the guilty verdict In this section, several cases from both in w a s o v e r t u r n e d . F o l l o w i n g t h i s , t h e and outside Japan will be examined. The first Prosecutor won another guilty verdict at Mr. case that will be considered is the Sophonow Sophonow’s third trial. In 1986, however, the Case in Canada, which stirred a significant Appeal Court again quashed the verdict, and amount of discussions about problems in the appeal by the Prosecutor to the Supreme witness testimonies. This incident involved Court was dismissed. The case finally ended the murder of a female employee at a donut after the Supreme Court refused to allow a shop in Winnipeg, in Manitoba Province, 1981. fourth trial. The case, however, went There was more than one eyewitness unsolved. As for Mr. Sophonow, although the testimony available to the police right from guilty verdict was overturned, this did not the beginning of the investigation into this mean that his innocence was formally crime. Based on a composite drawing made recognized by the law. After his trials, Mr. from these witness testimonies, Mr. Sophonow Sophonow appealed for his innocence to be was arrested. Mr. Sophonow lived in recognized. Finally in 2000, the State Vancouver and was not a resident of Attorney General issued a statement Winnipeg. However, he happened to be in declaring Mr. Sophonow innocent and Winnipeg to see his ex-wife and children at announced the establishment of a Commission the time of the incident. Witnesses all agreed of Inquiry to review the case. In 2001, the that the suspect was tall, wore a cowboy hat Commission published its report and Canadian and glasses, and had a moustache, all of which society finally learned how this miscarriage of corresponded to the appearance of Mr. justice occurred. The following considerations Sophonow(see Figure 4.). are based on the Royal Commission’s report.3）

205 Collected Papers from Human Services Research, March, 2010

First, we need to consider the reason why to Mr. Sophonow at the trial, saying“I have Mr. Sophonow was found guilty in his second no doubt about it.”Mr. Doerksen also and third trials. From the early stage of this provided witness testimony at the second and case, there was a witness, Mr. Doerksen, who the third trials, with his statement reaching claimed that he saw a suspicious man leaving higher degrees certainty at each trial. the doughnut shop. Mr. Doerksen followed There were many problems with the him, and saw him throw something from the testimonies made by the men who shared the bridge into a river (police later found a glove same jail cell with Mr. Sophonow. Mr. Cheng in the river that was supposed to have been was Hong Kong Chinese and was about to be thrown by the offender). Mr. Doerksen said deported back to his country. However, in that he wrestled with the man and tried to return for his testimony, he was freed on catch him, but that the man escaped. and not deported, and left the country Mr. Black and Mr. Cheng testified in the voluntarily (thus enabling him to enter second trial. They were not eyewitnesses but Canada again). In Mr. McQuade’s case, the shared a cell with Mr. Sophonow in the police prosecutor dropped the charges against him jail when he was taken into custody after the in return for his testimony. Mr. Martin had a arrest. They both testified that Mr. Sophonow criminal record of , having given false confessed that“I did it”．However, the testimony at a trial in a different province. testimony of these men turned out to be very relied on testimonies with problematic. credibility problems in order to have Mr. Mr. McQuade and Mr. Martin, who testified Sophonow found guilty. There were various in the third trial, were also former cellmates other problems in these mistrials, but these of Mr. Sophonow. They also testified that they witness testimonies and the question of the heard Mr. Sophonow say“I was involved in credibility of the prison informants particularly the incident.”What kind of problems did drew the attention of the Commission of these witnesses present? Inquiry. First of all, Mr. Doerksen, who said he witnessed the offender, did not report it to b. Advice Given by the Commission of Inquiry the police right after the incident, even The Report, published in 2001 by the though he knew there had been a murder. Commission of Inquiry concerning the After he reported it, although he was not able S o p h o n o w c a s e , o f f e r e d v a r i o u s to identify Mr. Sophonow through photograph recommendations about how to improve the identification in the police station, he pointed Canadian criminal justice system. The following two points are especially notable. The first recommendation concerns the method of ３）See, http://www.gov.mb.ca/justice/publications/ sophonow/recommendations/english.html and police interrogation. The Report advises that Ibusuki,“Visual Recording of Suspect Interview police investigators use audio and visual and Eyewitness Testimony in Canada”Kikan- Keijibengo vol. 38 p.144(2004). recordings of interviews with and

206 Eyewitnesses in Criminal Trials: Lessons from the Miscarriage of Justice in Canada and Japan（IBUSUKI） witnesses. In particular, the report offers to increase the chance of discovering the detailed procedures about how to acquire actual offender. Also, the Commission eyewitness testimonies, how to conduct line- suggests that all conversations that take place ups and how to evaluate witness testimonies. between the witness and police during the These recommendations are discussed in line-up should be recorded. This makes it more detail below. possible to later check if any improper Concerning line-up procedures, the Report suggestions or indications were given to the advises that a neutral , who is witnesses. The fourth point made in the not involved in the investigation of the case, report is that it is not acceptable to conduct a conduct the line-ups. When investigators who line-up with only a small number of persons are involved in the case conduct a line-up, it lining up in the group - each line-up should is more likely that they will make some kind contain a minimum of ten persons. However, of indication to the witness about which in Japan, we do not conduct line-ups at all. person they want the witness to point out. To Instead, we have what is called a“solo facial eliminate such risks, the report advises a recognition session”，where only one suspect neutral officer who is not involved in the case is shown to the witness. In this respect, Japan conduct line-ups. Secondly, the Report also is far behind some countries in attempting to recommends that the officer should not tell ensure the reliability of witness testimonies. the witness whether the real suspect is Despite Canada’s overall high standard of actually lining up in front of the witness or criminal justice, the Commission was able to not. The Report says that this is very make several important recommendations. important because it is common for a witness The Commission also made the following to feel strong pressure at the sight of the five suggestions concerning the use of“photo line-up. When the witness feels that they line-ups”，which use portraits to allow must choose someone in the group, it is highly witnesses to identify the suspect. First, at possible that they will pick someone in the least ten portraits of photos need to be shown line-up even if they are not sure that this to the witness. Second, the whole procedure person committed the crime. Consequently, of showing the photos should be videotaped. the Report suggests that police clearly state Third, as in regular line-ups, an officer who is to the witness that it is okay to say,“I do not not familiar with the case should conduct the recognize anyone here.”By knowing that photo line-ups. Fourth, each portrait should there is that option, the witness feels that it is be presented one by one, and not all together acceptable to say“I don’t know”or“I don’t at one time. And finally, witnesses should be think the suspect is here”when they are not warned that the incorrect identification of the sure whether the suspect is included in the suspect could lead to a wrongful conviction. line-up. In the case that the suspect is not the The Commission also provided advice actual offender, the actual offender must be concerning the trial process. It recommended elsewhere. This method is therefore necessary that the trial judge inform the jury the

207 Collected Papers from Human Services Research, March, 2010 following factors. First, that eyewitness witness testimony, it also has been reported identification involves inherent risks. Second, that the degree of a witnesses’ certainty even when the witness seems to be sure of increases due to various factors, such as their testimony, the accuracy of the testimony information acquired after the incident and cannot be measured by the degree of the the suggestions made by others. For example, witnesses’ apparent confidence. Third, the a witness in the Sophonow Case, Mr. Doerksen, trial judge should show the jury the data gave more detailed and certain witness illustrating that the vast majority of wrongful testimonies as the trials continued. Such convictions of innocent people have arisen as changes in testimony should be carefully the result of faulty eyewitness identifications. examined. Indeed, at the Sophonow trial, the F o u r t h , d u r i n g t h e c o u r s e o f p o l i c e defense lawyer asked to summon a world- investigation, where a vague testimony turns renowned American expert on witness into a definite statement, the reasons behind testimony, , but the court did this change need to be considered. In its not allow it4）．The types of problems experts conclusion, the Report advises the attendance can point out differ from case to case, but it of eyewitness specialists at criminal trials. was obvious that the court should have c. Summary listened to the opinions of such experts in this As was stated at the beginning of this paper, case. the vast majority of wrongful convictions are caused by incorrect witness testimonies, (2) The Truscott Case (Canada) w h i c h h a s b e e n p r o v e n t h r o u g h a. Course of the Case demonstrative research. This is especially Another case that is worthwhile discussing relevant to Japan because of the introduction is one that recently had a huge impact on of a system of mixed jury trails in 2009, where Canadian society. This murder case is called citizens will be involved in the judgment of the Truscott Case in which the Canadian or innocence of defendants with Justice Ministry allowed a new trial in professional judges. We therefore need to October 2004. The actual incident took place consider the advice of the Commission of 50 years earlier, on June 11, 1959, in the small Inquiry of the Sophonow Case in order to a g r i c u l t u r a l c o m m u n i t y o f C l i n t o n , improve the system of criminal justice in approximately 300km west of Toronto, Japan. It will also be necessary for trial judges Ontario. Lynne Harper, a twelve year old girl, to warn lay judges that witness testimonies went missing and her body was found in the have frailties, and that witness certainty and woods two days later. Mr. Steven Truscott, the credibility of testimony are two different matters. ４）See, Elizabeth Loftus, Eyewitness Testimony, Harvard University Press (February 1, 1996); Along with what has been introduced at the Elizabeth Loftus and Katherine Ketcham, Witness beginning of this paper concerning the for the Defense: The Accused, the Eyewitness and the Expert Who Puts Memory on Trial (St. various factors that affect the formulation of Martin's Griffin, July 15, 1992).

208 Eyewitnesses in Criminal Trials: Lessons from the Miscarriage of Justice in Canada and Japan（IBUSUKI） then fourteen years old, was supposed to be trials and decided to apply for one. In Canada, the last person to have seen her. Lynne asked there is a non-profit organization (NPO) him to give her a ride on his bicycle to the called Association in the Defense of the nearby woods, in which they parted. On this Wrongly Convicted (AIDWYC)9），which works basis, Mr. Truscott was arrested. Canadian for the wrongly convicted 10）．AIDWYC media frequently describes this as the most reinvestigated the Truscott case and compiled famous pair ride on a bicycle in Canadian a large report, and even suggested a highly history.5） probable perpetrator of the crime. In addition Right from the beginning, Mr. Truscott to that, in 2001, a non-fiction writer Julian consistently protested his innocence and Sher published a book, based on the Truscott never once made a confession. In September case, which became a best-seller in Canada 1959, however, he was tried as an adult, even (Sher, 2001). These incidents reactivated the though he was only fourteen. At the time, movement for Truscott’s new trial, and in Canada still had the death penalty, and he 2002, the Justice Ministry established an was sentenced to death. This was investigative commission. (In Japan, new later commuted to life and, trials are conducted only after filing a claim in after being a model prisoner for ten years, he court, which then determines whether the was paroled in 1969 and established a new life new trial will occur, but in Canada, it is under a different name. There was a determined by the Justice Ministry). In nationwide movement advocating his August 2004, the investigative commission’s innocence from the time of his trial, though it report was submitted ― this report has not is said that his local community was in a state been released to the public ― and concluded of turmoil, since violent crime was so that it was appropriate to have a new trial. unfamiliar to the peaceful and quiet After reviewing this report, a new trial was agricultural areas of Canada in 1959. scheduled for June 2006 at the Court of In 1997, Mr. Truscott, who had been living Appeal in Ontario and finally Mr. Truscott quietly, suddenly applied for a new trial of his was found not guilty by the court.11） long forgotten case. From the late1980s, new trials were held for various wrongful convictions in Canada, and many defendants ６）See, Michael Harris, Justice Denied: The Law Versus Donald Marshall (Macmillan of Canada, 1986). were exonerated. in old cases were ７）See, http://www.attorneygeneral.jus.gov.ca/english/ rapidly piling up, including those of Donald about/pubs/morin/ and K. Makin, Redrum: The Innocent (1992). 6） 7） 8） Marshall, Guy Paul Moran, and Milgaard. ８）See, http://www.milgaardinquiry.ca/ and C. Karp In the wake of these new trial results, Mr. & C. Rosner, When Justice Fails: The Milgaard Story (1991). Truscott visited a lawyer who handled new ９）See, http://www. Aidwyc.org/. 10）See, B. Anderson & D. Anderson, Manufacturing Guilt: Wrongful Convictions in Canada (1998). ５）For Truscott Case generally, see http://www.cbc. 11）The detail of the decision by the Ontario Court ca/news/background/truscott/ and http://www. of Appeal is here. http://www.ontariocourts.on.ca/ cbc.ca/fifth/truscott/index.html. decisions/2007/august/2007ONCA0575.pdf.

209 Collected Papers from Human Services Research, March, 2010

b. Outline of the Facts While there were a variety of factors which The victim, Lynne Harper’s body was found caused Truscott to be convicted, the key in the woods shown in Figure 5. The school evidence was the testimonies of these where the victim and the accused attended is witnesses which were unfavorable to the shown beneath this. There is a road from the accused. Furthermore, it is thought that their woods that goes directly to a national road. It testimonies may have been about something was near this school where Mr. Truscott was they did not actually see. In other words, it is asked by the victim to give her a lift on his h i g h l y p o s s i b l e t h a t t h e s e a r e f a l s e bicycle, and they headed north on this road. testimonies. There were testimonies both On the way, many children were playing favorable and unfavorable to the police/ around the bridge, and many of them prosecutor, and some testimonies conflict with witnessed the two on the bicycle heading other testimonies, but the majority of towards the national road. According to the testimonies support Mr. Truscott’s innocence. testimony of Mr. Truscott, he let the victim Many of the children who were playing by the get off the bicycle near the national road and river stated,“Two people crossed the bridge went home alone. There were many witnesses together but only one person came back on who stated that he arrived home alone. the bicycle,”which backs up the testimony of A boy named Butch George, however, Mr. Truscott. testified that,“I saw the two going into the It has also been pointed out that the police woods.”It is necessary to note that this were probably not careful enough in their use testimony came out after the victim’s body of witness testimonies. For example, the boys’ was found in the woods. Regarding the guardians were not present when the witness witness Butch George, one of his classmates statements were given, nor did police record described him as“the worst liar I have ever the witness interviews. Although the met.”Even Butch’s homeroom teacher said, credibility of the witnesses who testified in “it is hard to deal with him since he accordance with police expectations was constantly changes what he says.”There was questionable, police ignored this. That is to another testimony from a ten year old boy say, even though these witnesses changed named Philip Burns. He testified,“I'm not their initial testimonies, or gave testimonies sure who they were, but I saw two people go that clearly conflicted with what actually into the woods.”However, in the statement happened, the police only believed the he gave to the police on June 18, (the case testimonies that were favorable to their case broke on June 11), which was later made against Mr. Truscott. Psychologists often public (Figure 6), he made no such claim. In point out that when a witness is a child, they his statement, he said,“I met the Gaudette tend to be highly susceptible to manipulation.

girl…I met Butch George…I walked on home Children have a strong desire to live up to and never met anyone else.”The boys’ expectations of the investigators, and thus statements were made soon after the incident. make statements which they believe will

210 Eyewitnesses in Criminal Trials: Lessons from the Miscarriage of Justice in Canada and Japan（IBUSUKI）

The river where many The woods where the body children were playing was found

The location where Mr. Truscott picked up the victim on his bicycle

Figure 5 Area around the crime scene of Truscott case

Figure 6 Philip Burns gave a statement,“I walked on home and never met anyone else”．

211 Collected Papers from Human Services Research, March, 2010 make them happy.12）In the book by Sher, a result, the suspect was found not guilty.13） which is mentioned above, there is a chapter which has the romantic title of“The On August 23, 2003, around 3 o’clock in the Fantasies of Children.”In this chapter, the morning, an incident took place in which a author discusses how the false views of man was repeatedly beaten on the face by a children resulted in a horrible, wrongful woman whom he had become acquainted with conviction. through the telephone club service in Osaka. The victim, Y, was contacted by the police (3) Osaka Telephone Club case* four months later, on December 23, and was * “Telephone club”is an adult-entertainment told,“We have the woman who might have establishment that provides male customers with assaulted you, so please come to the station.” facilities to receive telephone calls from female Through a one-way mirror, the victim saw customers and enjoy conversation with them. Male customers pay for the use of the facilities and the suspect X in the inquiry room (first facial female customers pay for the cost of the phone call. recognition session). At that time he stated that X might be the one who assaulted him. a. Outline of the Facts On January 8, 2004, the police arranged Y to So far, two cases from Canada have been see the suspect X in side view as she was discussed, which represent different types of walking in the hallway (second facial wrongful convictions. In the Sophonow Case, recognition session). Y was also given a chance the witness might actually have seen the to see X by the door as X was being suspect, but the problem was in the process questioned (third facial recognition session). of witness identification. In the Truscott Case, This time Y said,“I am sure that it was her,” the witnesses said they saw the suspect, but and X was arrested and prosecuted, but found might have claimed to have seen something not guilty. they did not actually see. Therefore the The Osaka District Court proposed the problem was with the making of false following three points be used in order to statements. The next case to be discussed is a evaluate the credibility of Y’s witness recent case at a lower court in Osaka, the testimony (suspect identification testimony). second largest city in Japan, in which the First, whether or not the observation was found not guilty. The problems conditions and maintenance of police records in this case were with suspect identification. were satisfactory; the nature of the conditions In that sense, it belongs to the same type of under which Y observed X; and the reliability case as the Sophonow Case. The witness of Y’s memory given that four months had definitely saw the suspect, but the credibility passed since the time of the incident to the of the identification was questionable and, as time where Y identified X as the criminal.

12）See, John Doris (Ed.), The Suggestibility of Children’s 13）Judgment by Osaka District Court, 9th April 2004, Recollections (1991). Hanrei Times vol. 1153 p.296.

212 Eyewitnesses in Criminal Trials: Lessons from the Miscarriage of Justice in Canada and Japan（IBUSUKI）

Second, whether or not the identifying conducted the investigation from its initial procedure in which Y said X was the offender stages, in which they did not check for was appropriately conducted. Third, whether fingerprints left on various items of the hotel or not the identification was provided with room that the suspect might have touched, certainty. although it was obvious that she had been in the room. It was also pointed out that police b. Method to Examine Suspect Identification officers had quite suggestively lead the Testimony witness in the facial recognition sessions after As for the conditions of observation, December. The court pointed out that only a regarding the first proposal, Y had spent two solo facial identification session was conducted to three hours with X from their initial with Y, who never had a chance to point out meeting until the , which is a positive the suspect from a group of people. factor that makes the observation seem Regarding the certainty of identification, it reliable. In other words, Y’s testimony was was seen as a problem that Y’s testimony more reliable than the testimony of a person became firmer and firmer, as he proceeded who only saw the crime scene for a very from the first, second and the third short time, or saw it in the dark. In terms of recognition sessions to the trial. At the trial, Y the distance between the observant and the testified affirmatively that“there is no doubt” observed, Y saw X from relatively nearby. On about his memory. However, Judge Sugita, the other hand, the following negative factors who was the presiding judge in the court, make the testimony seem unreliable. The two warned that the degree of certainty and the people involved did not know each other reliability of identification testimony should be before the day of the incident, Y has poor judged separately. Finally, he stated that the eyesight, and at the time of the incident, he accuracy of the observation itself is highly was not wearing glasses and was heavily questionable and that the witness testimony drunk. It was also considered to be a negative became gradually more concrete and detailed factor that the first facial recognition session as time passed, and that such a peculiar was held four months after the incident. development cannot be considered to have Regarding the second point about the occurred without the influence of the police identifying procedure used by the police, it strongly leading the witnesses’ responses to was strongly pointed out by the court as a their questions. negative factor that the hearing held by the The court’s indication that there is no investigating authority right after the incident significant relationship between the degree of occurred on August 23 was highly insufficient. certainty of a witnesses’ identification of a Amazingly, the investigating authority did not criminal is not confined to a single judgment take a proper record of Y’s statement about in this particular case. It has been clearly his memory of his assailant. Moreover, the demonstrated in books by the aforementioned police were accused of having superficially Professor Elizabeth Loftus, an expert on

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information way of age height figure hair face eye chin mouth clothes from the victim talking time of the incident ○ ○ ○ ○ first identification ○ ○ ○ ○ ○ ○ first identification 2 ○ ○ ○ second/third identification ○ ○ ○ ○ ○ ○ ○ ○ trial ○ ○

Figure 7 Emergence of Identification Data in the Suspect Identification Statement given by the victim in the Osaka Telephone Club Case eyewitness testimonies, how fragile the In a statement at the time of the incident, memory of witnesses can be. Professor Loftus the victim only mentioned the attacker’s age, discusses in depth the degree of certainty of height, figure, and hair. At the first facial the witnesses’ memory.14） identification session, however, he referred even to her facial characteristics, such as her In other words, a witness feels at ease to eyes and jaw. Furthermore, in the second says,“I knew my identification was right,” and the third facial identification sessions, the when they know that other people are victim started to describe the attacker in thinking the same. The witnesses’ degree of detail and mentioned the features of her certainty increased not as a result of mouth and the way she talks. At the trial, he confidence in their own memory, but due to started to talk about the clothes she was suggestions from other sources. Professor wearing on the day of the incident. It Loftus points out there can be creativity in certainly is possible that sometimes something the“strength”of such testimony. Professor triggers our memory, and makes us recall Loftus’s observation has been supported by t h i n g s t h a t w e c o u l d n o t o t h e r w i s e various experimental research and actual immediately recall. In this case, Y’s statement cases. became more and more detailed as the different solo witness identification sessions c. C h a n g e s i n S u s p e c t I d e n t i f i c a t i o n progressed. Suspect identification statements Statements that change over time like this lead to a In this section, we will see how the strong suspicion of the intentional leading of witnesses’ degree of certainty increased in witness statements by the police, or that the relation to the suspect identification statement statement is false. in the Osaka Telephone Club case by studying the details of this change (See (4) Cases with Problematic Suspect Figure 7). Identification Testimonies The Osaka Telephone Club Case is not an

14）See, Loftus (1996 & 1992). exceptional case. Recent cases in Japan in

214 Eyewitnesses in Criminal Trials: Lessons from the Miscarriage of Justice in Canada and Japan（IBUSUKI） which the credibility of witness testimonies this case, two young live-in male employees (suspect identification testimonies) was testified that Ms. Fuji murdered her husband. rejected will now be discussed. On November From the beginning of the investigation, 13, 2003, a housewife whose car allegedly ran investigators’ opinions were divided as to over a motorcyclist was acquitted based on whether the perpetrator had lived within the the doubtful testimony of a witness at Tokyo house or not, but eventually it was determined District Court. On December 9, 2003, a man that the crime was an inside job and Ms. Fuji who was prosecuted for indecent exposure was prosecuted and convicted. Ms. Fuji was acquitted due to doubtful witness appealed once to the Supreme Court, but then testimony at Naha District Court. On March abandoned the appeal and served her 24, 2004, Chiba District Court ordered Chiba sentence. After being released from prison, Prefecture pay 2.5 million yen in compensation she appealed for new trial. She died, however, to a boy with a previous record of who before the matter was clarified, but relatives did not receive punishment (the same as an of Ms. Fuji nonetheless continued her appeal in adult cases) due to the vagueness for a new trial appeal. This in itself made this of witness testimonies. On July 13, 2004, after case very peculiar, as it was the first time the Prosecutor appealed in the Naha case that a new trial had allowed an acquittal after mentioned above, the Naha branch of the the person who filed the appeal had died. Fukuoka High Court held the District Court Some years later, the two boys who testified decision rejecting the credibility of the c o n f e s s e d t h a t t h e y h a d g i v e n f a l s e witness testimony. statements in court, which made it a typical As it is shown above, just from newspaper false testimony case. They were pressured to reports, we can see that unreliable suspect say that they had seen the murderer although identification testimonies are the basis of they did not actually see anything. frequent acquittals. However, we should not There are many cases in which witnesses forget that there have still been many may have seen somebody commit the crime, wrongful convictions as the result of incorrect but are actually making a wrong identification witness testimonies. (false recognition testimony type). An One example of this is the well-known example of this is the Fukawa Case, a murder- Tokushima Radio Merchant Case (Tokushima that occurred in Mito in 1967, for Case) in which the wife of the victim, Ms. which there is currently an appeal for a new Shigeko Fuji, was prosecuted after being trial appeal.16） In 1978, final confirmation of accused of stabbing her husband to death while the defendant’s guilt was made by the Court, he was sleeping in the same room as her.15） In and in 2005, an appeal for a new trial was

15）For Tokushima case, see Judgment by Tokushima 16）For Fukawa case, see http://www.fureai.or.jp/~takuo/ District Court 9th July 1985, Hanrei Jiho vol. 1157 fukawajiken/and Fukawa Defense Team, Kuzureta p.3 and Ken Kaiko, Katasumi no meiro (A maze in Jihaku (Spoiled Confession) (Gendai Jinbun Sha, a corner)(Mainichi Shin-bun Sha, 1976). 2007).

215 Collected Papers from Human Services Research, March, 2010 filed, which is currently under way. In this gradually unified as the police investigation case, there was witness testimony that the proceeded. Moreover, witnesses who noted defendant and others left the house of a and maintained a different profile of the murder scene at around 9 o’clock at night, criminal were not called during the trials as seen from a location of about 100 meters away. witnesses. This was a very biased way of Despite the low reliability of this testimony in using witness testimonies. It was due to this regards to the time and distance from which that the defendant was acquitted in the first the witness viewed the incident, the suspect trial, the court noting that the witness was found guilty in the original verdict. (On testimonies were not reliable. September 21, 2005, the Tsuchiura branch of There are some things we need to be careful the Mito District Court finally decided to about when knowing that“there are allow a new trial.17）The Tokyo High Court witnesses”．First, there may be witnesses confirmed the decision and the Supreme other than those testifying in court. Second, Court affirmed and the new trial will be held even if a witness is testifying in court, it is in 2010.) possible that they have initially given different The Tomiyama Case is also a murder case. identification information at the beginning of It is an incident which involved a group of police investigations. The Fukawa and political extremists having inter-group strife, Tomiyama cases are notable examples of this in which an activist was murdered, in the which must be considered. As has been middle of the afternoon on a street in Tokyo. discussed, in the Osaka Telephone Club Case, In this case, whether the testimony constituted statements which were made immediately a false recognition by the witness is currently after the incident were vague and indefinite in dispute18）．The defining feature of this case but gradually became more detailed. The is that it occurred in the middle of the worst scenario is that witness testimony at afternoon on a street in a big city and there trial is delivered with a high degree of were many witnesses. In the first trial, the certainty due to suggestions by the police, judge ordered an acquittal, stating that the and is backed up by information known by witness testimonies were not reliable. the witness only in hindsight so as to create a However, in the second trial, the judge’s very narrow version of the incident at trial. decision was reversed, which was confirmed This is related to the issue of“disclosure”． in 1984. Currently, an appeal for a new trial Currently, in the Japanese trial system, has been filed. This incident was supposed to prosecutors do not have any obligation to be witnessed under good conditions, but the submit every piece of evidences to the court. witness testimonies nonetheless initially In other words, the system allows for varied from each other, before becoming prosecutors to use only the evidence and information that are favorable to gaining a 17）For the summary, see http://www.fureai.or.jp/~takuo/ conviction. This is not limited to different images/Ketteiyoushi.pdf (in Japanese). 18）See, http://www4.ocn.ne.jp/~tomiyama/index.htm. witness testimonies, but also any evidence

216 Eyewitnesses in Criminal Trials: Lessons from the Miscarriage of Justice in Canada and Japan（IBUSUKI） that is advantageous to the defendant, such as the suspect on her right although there was evidence supporting an alibi for the accused. no light shining in the direction of the liquor Moral issues aside, the prosecutors are legally shop. At that time, there were no street lights not obliged to submit all available information there and it was dark. The reliability of this to the Court. A conviction might turn on witness is debatable. It may be true that she witness statements given at the trial, but in saw somebody, but it cannot be denied that it fact, relying only witness statements is not may have been a different person, or, even if sufficient to reach a just conviction. it was the accused, she might have been The last case to be introduced here is from confused about when she saw this, since the Shiga prefecture. It is a case of the murder defendant had frequently been to this liquor and abandonment of a corpse that occurred in shop, and parked his car nearby. 1984 in the town of Hino. In the Hino-cho The second problem is that witnesses who Case, the original judgment was confirmed in originally supported the suspect’s alibi later 2000 and is currently under appeal for a new changed their testimonies. The man requesting trial at Otsu District Court. The female owner appeal (the defendant) initially told of a liquor shop in the town of Hino was investigators,“I was at X’s house and murdered and her body was dumped on land drinking there.”There were several people then under development. A portable safe from who confirmed this claim, but later, one the liquor shop was found in a mountainous retracted his statement, and said that the area. This incident is not nationally well-known defendant did not visit the house. These as the Fukawa or the Tomiyama case, but testimonies were said to lack credibility, but in suffered from a few problems that have been the trial it was held that an alibi had not been noted. The suspect confessed during established. interrogation. The first trial threw out the confession, but still convicted the defendant based on circumstantial evidence. However, in 4. Proper Handling of Witness Testimonies a second trial in Osaka High Court, the ruling about the confession was reversed, with the So far in this paper, several cases from Court declaring the confession to be reliable Canada and Japan have been examined, but evidence and upholding his conviction. many more cases exist in which the reliability One piece of circumstantial evidence was a o f w i t n e s s t e s t i m o n y h a s b e c o m e a statement in which the accused was seen by contentious issue. What can be done to a witness around 7 p.m., the time of the crime, prevent wrongful convictions caused by outside the liquor shop. The witness saw the incorrect suspect identifications? suspect from inside a moving automobile. First, it is necessary to review the method The witness is a young woman who lived in for properly acquiring the witness statements the neighborhood. She stated that as she was and judging their reliability. As the Inquiry making a left turn at a crossroads, she saw Commission for the Sophonow Case advised,

217 Collected Papers from Human Services Research, March, 2010 investigators must ensure the accuracy of Case. The judgment states that police should: witness statements. It is desirable that the “try their best not to give suggestions to investigating authority acquire and record w i t n e s s e s w h i l e c o n d u c t i n g s u s p e c t witness information at the earliest opportunity identification processes”;“avoid conducting after the incident. It is necessary for solo facial identifications as much as possible investigators to diligently record witness since it involves [the risk of] the manipulation information in order to arrest criminals. [of the witness]”; and the witness’s“initial Second, in order to judge the accuracy of a testimony should be preserved as much as witness’s memory, it is necessary to have a possible.”These recommendations are highly scheme that increases the reliability of appropriate. suspect identification statements. It is In particular, the decision reached in this therefore necessary to establish appropriate case was particularly noteworthy because solo procedures and recording of line-ups and facial identification is still conducted in Japan. photograph identifications. The advice made Judge Sugita also recommended that, “in the by the Inquiry Commission into the Sophonow future, in the context of recent trial verdicts, Case is relevant to these processes. including previous Supreme Court decisions Third, authorities must investigate the and cognitive science research, the court reliability of witnesses so as to eliminate false respectfully requests that the Osaka witness testimonies. In order to achieve this, Prefectural police improve their obsolete total disclosure of all available evidence in a investigation method as soon as possible.” case is necessary. Unless prosecutors disclose The academic psychology community all of information they have regarding the announced official detailed guidelines suspect and witnesses, the problems of r e g a r d i n g m e t h o d s o f i d e n t i f i c a t i o n incorrect witness testimonies will never be procedures, which include how to collect solved. In addition, calling upon experts of identification statements（“Guideline for suspect identification testimonies is absolutely Witness Testimony/Identification Procedure” essential. Psychologists and other experts who by Law and Psychology/Witness Guideline can properly evaluate witness testimonies are Creation Committee, 2005, Gendaijinbun-sha). appropriate for this task. These recommendations were made by a team Fourth, continuous efforts must be made to comprised of members from both legal and ensure fair trials. This is not limited to psychology disciplines, and are particularly witness testimony issues but to all the aspects relevant to any professionals involved in of a trial. All persons involved in the investigations on behalf of the state. The administration of criminal justice, including Committee claims that experts who only police, prosecutors, defense lawyers and criticize the present condition do not improve judges, need to make this effort. the situation, and that these guidelines present These points were discussed in detail in the a model of action that should be taken. court’s decision in the Osaka Telephone Club

218 Eyewitnesses in Criminal Trials: Lessons from the Miscarriage of Justice in Canada and Japan（IBUSUKI）

Figure 8 Facial Identification Fact Sheet used by the FBI

Figure 8 shows the common template used demonstrates the diligence of the FBI in by the FBI when suspect identification recording witness’ statements of gender, age, testimony is taken. Because of the use of this race, height, weight, physique, and facial identification statement recording form, the features (hair, eyes, eyebrows, nose, mouth, failure to confirm basic information in any jaw, cheeks, ears, head, mustache and beard, kind of case does not arise. The Fact Sheet skin, scars and forehead). This shows that

219 Collected Papers from Human Services Research, March, 2010 there already are established systems to commission established by the Canadian secure the accuracy of suspect identification government. In the Marshall Report, the statements by investigative organizations in Commission stated that prosecutors should be other countries. When we consider this, we obligated to show all of the evidence they have to conclude that data collection methods possess to the defendant. However, this used by Japanese police authorities are recommendation was not immediately outdated. Authorities must seriously consider introduced to the Canadian criminal justice introducing proper data collection methods system. Sometime later, in 1991, however, the based on the guidelines mentioned above as Supreme Court in Canada accepted the soon as possible. recommendation as law in a groundbreaking decision, which stated that prosecutors have an obligation to show all available evidence to Conclusion the defendant and their lawyers. Fortunately, in Canada, if there is more than one witness As mentioned earlier, Mr. Truscott was testimony, prosecutors are obligated to deliver inspired by a series of new trial acquittal the information to the defense lawyers verdicts in Canada and started his own appeal involved in the case. In contrast, in Japan, to prove his innocence. The Marshall case was unfortunately, prosecutors do not have any the first case for which a formal Inquiry such obligation and courts do not consider Commission was established to inquire into the such an obligation to be necessary. In reasons behind his miscarriage of justice, which addition to that, solo facial identification tests, motivated other defendants to appeal for new which were strongly criticized by the Chief trials. At the beginning of the Commission’s Justice in the Osaka Telephone Club case, Report published in 1989, it is noted that: continue to be conducted across Japan. If we are a victim, the authorities may ask “While we know it is impossible to us,“Is this the person who did it?”At a time guarantee that there will never be another like this, we may cause a miscarriage of justice miscarriage of justice such as the one that unless we say,“Solo facial identification is occurred to Donald Marshall, Jr., we believe it dangerous. Please conduct a line-up.”It is is imperative that responsible authorities do natural for a victim to hate the perpetrator. everything humanly possible to reduce or Victims want the authorities to arrest eliminate such possibilities. It is in that spirit criminals no matter what. However, it is this that we offer this Report.19）” simple desire for justice that may sometimes We must keep in mind that this is quoted creates unjust results. This is something we from a report by a public investigative should always be cautious about.

19）See, Royal Commission on the Donald Marshall Jr. Prosecution (Halifax: Queens Printer, 1989).

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(2000) Actual Innocence. Reference Sherr, 2001: Sher, J. (2000) Until You Are Dead: Steven Truscott’s Long Ride into History. Huff et. al., 1996: Huff, R., Rattner, A. & Sagarin, E.(1996) Convicted But Innocent: Wrongly Received November 29, 2006 Conviction and Public Policy. Final acceptance January 21, 2007 Scheck, 2000: Scheck, B., Neufeld, P. & Dywyer, J.

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