I hope EUREX helps in admitting and correcting mistakes

News item | 25-03-2024 | 00:00

Linda Geven is assistant professor of legal psychology at Leiden University. Together with fellow legal psychologists Jenny Schell-Leugers and Teresa Schneider, she founded EUREX, the European registry of exonerations. Exceeding initial expectations, the registry now includes 123 cases from 17 countries. However, the founders are interested in more than just numerical data. A conversation about mistakes, reviews of convictions and the differences and similarities between Europe and the United States.

‘There are more cases than we first thought. Initially, we planned to confine our focus to a handful of countries, but over time their number has expanded significantly. You could say EUREX has got out of hand somewhat, but if you’re going to do it, do it properly from the outset, we thought. And we’re not concerned with numbers alone, although we need them as research material. There were more questions we had to answer, such as the legal definitions we encountered. How do individual countries define ‘miscarriage of justice’? This is relevant, because it helps in determining which case counts as a miscarriage of justice and which doesn’t. In the interest of data quality, it’s crucial that the terminology and definitions are legally precise to ensure academic comparability. We deployed a legal assistant especially for this purpose over several months.’

What are the practical aspects of your work?

'We focus on numbers and statistics. We don’t, in principle, speak with people who have been exonerated. We’ve documented fourteen Dutch miscarriages of justice in EUREX. For cases from other countries, we seek contact with experts and researchers from these countries, such as judges, professors or legal psychologists. In Italy, there are two journalists who have conducted multiple investigations into miscarriages of justice and have contributed to the registry. As we don’t speak all European languages, at times we have to rely on information from others when gathering cases.

Gathering cases is just the beginning, however. We aim to delve deeper with EUREX, analysing the data and uncovering potential patterns and vulnerabilities. In the case of false confessions, for example, we want to know how many times a person was interviewed. How long did the interviews last? At what point does someone confess? And we also look at the judges and prosecutors involved in the case. Are there any patterns discernible? We really want to know all the facts about the entire process. Especially in relation to false confessions, which are actually more common than we thought. US research has shown that cases involving multiple mistakes often begin with a flawed confession, prompting a subsequent search for supporting evidence, as it were. In matters such as this, the case is established as valid, yet exculpatory information remains insufficiently examined in the case file. At roughly 35%, false confessions are the largest contributing factor among miscarriages of justice documented in EUREX. This figure matches US figures. EUREX is similar in many respects to the National Registry of Exonerations maintained in the USA. Because that is another finding: European and US data are not that different, at least in terms of the underlying factors behind miscarriages of justice. That said, there is considerable variance between the two in terms of numbers and sentencing.’

Aside from research, what are your aims with the register?

‘One of our key aims is to draw attention at the European level to miscarriages of justice and the importance of reviewing convictions. To increase people’s awareness of these matters, even though instances of wrongful conviction are still relatively rare. If you’re guilty and return to society following your sentence, you have probation and there are all kinds of people there to help you. But if you’re innocent, you’ll be released from detention and return to society without any assistance or supervision: ‘Apologies, you’re on your own from here on.’ We know that individuals who were wrongly convicted often struggle to find housing, work, or rebuild their social network. We hope the register will help identify errors in proceedings and improve the system. And we hope to raise awareness about miscarriages of justice in participating countries. Take Croatia, for instance, where a new project has just been launched. People are not yet fully willing to accept that miscarriages of justice occur in their country. If you’re aware that they occur across Europe and that you can do something about it, then I hope it will become easier for the judiciary to concede that it can happen. Miscarriages of justice involve universal factors, such as how we question eyewitnesses. I hope and believe EUREX will make it easier to identify patterns and vulnerabilities, admit mistakes and highlight the importance of review procedures.’

Do you use EUREX when researching false confessions?

‘There are areas of overlap, but EUREX operates as a stand-alone resource in terms of research. We don’t have all the EUREX files and information, although that is precisely what you need when conducting legal psychology research. Then you study all the information available. You read the entire file, watch all the interviews again and ask questions about everything: ‘Is this a suggestive question? How is the accused during the interview? What kind of suspect do we have here? In what circumstances does the interview take place?' Off-camera context can also influence what someone says. And that can be quite subtle. I used to do a little experiment with advanced law students in which they were given propositions about legal psychology and false confessions. They were pretty good at that on paper. We then gave them a fictitious criminal file. This contained a detailed write-up of an interview into which we had inserted all kinds of things, such as that the suspect had received special needs education. We know there’s a link between intelligence and the degree to which people are sensitive to suggestion, which makes them more vulnerable to false confessions. That sort of thing. The students didn’t grasp much of that, despite having been taught to do so. When it’s in front of you, tucked away in a file, you easily pass over it. That’s what we focus on in legal psychology. But for that, you need access to the file, and we don’t have that at EUREX. The registry will undoubtedly provide new insights, which we can then use to conduct targeted experimental legal psychology research, but that is quite separate from legal psychology research on false confessions.’

What were the reactions after EUREX was founded?

‘Most reactions came from the US. They said: 'It’s a good thing that Europe now has its own registry.' European countries themselves have also reacted positively. Above all, I hope people realise what we can do with the registry. That it’s not about loud hailing that we’ve documented 120 miscarriages of justice, but that we investigate where things are going wrong and help to improve the system. While some reactions to EUREX involved a heavy focus on the situation in the Netherlands, I believe we’re actually doing quite well here. That’s also thanks to the register of experts and the role the NRGD plays within the criminal justice system. We have standardised areas of expertise and certified experts as well as the Advisory Committee on Closed Criminal Cases (ACAS). Of course, there’s always room for improvement – even in the Netherlands. At the same time, there’s an active public debate on miscarriages of justice and parliamentary questions have also been raised regarding the matter. People said: 'It’s good that the Netherlands has 14 wrongful convictions, because that means there is a process in place for reviews and also that reviews are granted.' I found that striking. Whilst we regard reviews positively, it’s important to note they stem from human errors.’

Can reviews be requested everywhere in Europe?

‘In most countries, yes. But there are often all sorts of formal requirements that make it next to impossible in practical terms to request a review, let alone that such a request be granted. Take France, for example: a large country with a population of 67 million and only 11 review cases. In Germany, there have been more petitions for a review, although perhaps that is because the threshold is lower in that country. Nevertheless, the difficulty of conducting a review procedure varies widely. Maybe every country should establish a body where citizens can present their cases for review. Or should we look to adopt a general European guideline? So that it makes no difference whether you live in the Netherlands, Germany or France when it comes to filing a review petition.’

Do the figures in EUREX show evidence of improvement?

‘Of the cases documented in EUREX, the majority of miscarriages of justice, some 80%, pre-date 2007. I think the most recent case is from 2017. However, given that review procedures can be quite lengthy, the figure is bound to rise. We can also calculate the average time it takes for a case to reach the review stage. Still, I’m sceptical that mistakes no longer occur. After all, not every miscarriage of justice receives proper rectification. Some people never get to that stage, because they don’t have the financial resources, or can’t find a lawyer. We don’t know exactly how many cases are involved, partly as a consequence of the legal definition of ‘miscarriage of justice’ that is used. If we suppose that only 1% of police interviews produce a false confession, that is still more cases than the 120 we have found in Europe and are documented in EUREX. Many cases are still under review, such as the Arnhem villa murder case. We know the police interviews were not conducted according to current regulations, but cases such as this are not documented in the register at this moment. Whether a case is reviewed depends on various factors, including personal ones. If you’re released from prison after serving several years, do you think you’d still have the energy and resources for a long and arduous review? Or would you rather put it all behind you?’

How can the NRGD assist EUREX?

‘The NRGD can play an important role in establishing guidelines for what we define as scientific criteria. What we mean by forensic errors and what requirements are set for individual experts. Or on established protocols and quality safeguards, such as having reports reviewed by colleagues. Critical scrutiny helps, enabling you to present a more scientifically robust report or scientific findings to the court. In the US, it’s not uncommon to witness two experts vehemently disagreeing, only to discover later that one of them lacks the necessary qualifications to claim expertise. In the European context, we can then explain how in the Netherlands we use the NRGD, to ensure that the experts working on a case are truly an expert and maintain their expertise through ongoing education. So in that sense, the NRGD and EUREX are closely interrelated, even though EUREX is not part of the criminal justice system.’

Where do you hope EUREX will be in 10 years’ time?

‘Naturally, I hope we will then have a more complete picture of the number of miscarriages of justice in Europe and the contributing factors underlying them. I also hope we’ll have more exonerations than now. That it is easier to request a review and it is more accepted to say: ‘We made a mistake. But we have rectified it.' I hope that will be the approach. The registry is not intended to harass those working in the criminal justice system, or to point out how many mistakes they make, but to show that this is what happens and in what cases. I hope the policy concerning reviews will have been modified by then. In the US, research has shown that young people are much more likely to make false confessions than adult suspects. This led to a change in policy. Now, it’s no longer permitted to lie to minor suspects during an interview. So, it’s not permissible to trick someone into confessing. By demonstrating things like this through data, I hope we can contribute to improving the system.

So many things can go wrong in criminal proceedings. However, it’s also wrong to attribute a mistake to individuals without considering the role of the system. We’ve done something wrong as a society and we need to rectify it. I’m currently reading a book by Mark Godsey, a former prosecutor who now works as a lawyer and who co-founded and directs the Ohio Innocence Project. He says: ‘I developed a serious case of the tunnel vision of a prosecutor who has to convict people’. He now looks at it from a different angle. I think it’s interesting to examine a case from the other side. To look for factors that exonerate someone instead of selecting incriminating facts. And at least make sure that contradiction really is contradiction. I also teach courses where I delve into everything that can possibly go wrong. I always try to show that there are 100 things that could go wrong. If you keep that in mind and scrutinise the next case with heightened attention and ask yourself ‘Am I making a logical error right now?’, then we’re on the right track. If EUREX encourages that, I’ll be very satisfied.’