A phenomenon exists in psychological study that is called “the fundamental attribution error”. That is the tendency to explain peoples’ behaviour through a lens that underestimates the role of outside factors and overestimates the role of personal factors when evaluating other people’s behaviours (1). This psychological phenomenon is the reason why we find it hard to believe that someone would ever be willing to confess to a crime one hasn’t committed. But the phenomenon is not limited to confessions. There is an aspect of the false confession rhetoric that has been, if not neglected, then definitely not as readily and enthusiastically explored. This aspect is the topic of false witness testimony which, in many ways, has a significant overlap with false confessions and their causes. This blog will briefly explore this topic in light of the wrongful conviction case of David Milgaard, a man who was falsely accused of a rape and murder of Gail Miller.
Gail Miller was found dead in a Saskatoon alleyway on the morning of January 31st, 1969. Since that day, the murder – as well as the events that both preceded and succeeded it – has been written about and explored multiple times by multiple sources, readily available. As such, I do not find it necessary to reproduce any of that information here. What is important to note is that this discovery and the subsequent investigation and trial resulted in the conviction of David Milgaard – sixteen at the time – and his subsequent 23-year-long incarceration until his release in 1992 which was, primarily, a result of new DNA evidence that identified the real culprit.
In 2004, an inquiry into Milgaard’s case was launched and a “Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard” was published in September 2008. In the report, it was stated that there can be no doubt that witness testimony of Milgaard’s friends served as the basis for the charge against him (2) and that there was “a critical failure to record the circumstances surrounding the taking” of the statements in question (3). The report also referred to the possible pressures that were exerted upon those witnesses.
The witnesses in question where Nichol John and Ron Wilson, who were friends of Milgaard’s and who were, at the time of the events in question, accompanying Milgaard on a road trip from Regina into western Canada. The list also included Albert “Shorty” Cadrain, who joined the trio when they picked him up in Saskatoon on the day of Gail Miller’s murder. All three, similarly to Milgaard, were under the age of eighteen at the time. In their book When Justice Fails: The David Milgaard Story, Carl Karp and Cecil Rosner write: “now that police had checked out Cadrain’s story, all they had were three largely similar versions of what happened from Milgaard, Wilson, and John. Nothing in their initial statements suggested that Milgaard was guilty.(4)” This was, obviously, in reference to the initial interviews of the three teenagers in question. All three were described, at that stage, to be surprised at the line of inquiry and didn’t seem to be familiar with Gail Miller or the circumstances of her death. Had the police left it at that, Milgaard might never have been charged and convicted but that is not what happened. Instead, the police put pressure on Wilson, questioning him repeatedly and accusing him of lying (5). Similar pressure and pursuit were used by the police in their treatment of Nichol John as they interviewed her regularly asking the same questions over and over (6). When the police were done with Wilson and John, they had statements that were very different from the initial ones given, containing enough evidence to arrest Milgaard and to secure his conviction.
There are many reasons why people who are questioned by the police may not tell the truth. Chief amongst them are dispositional risk factors (7) such as age, lack of experience, low intelligence, sleep deprivation, fear, and so on. At play are also situational risk factors (8), those systematic interrogational contexts that are outside of the control of the person being interrogated and that hinge on the removal of psychological comforts and the increase of the interviewee’s vulnerability. There are also many motivations for not telling the truth (9). Those factors and motivations do not change based on who out of the people being question is eventually charged. It is of no importance whether the interrogated person is pressured to confess his or her own actions or is pressured to provide information about the actions of others. So long as those pressures and motivations are present, the possibility of falsehood is also present. What is different, however, is the way the two types of statements are treated in a court of law.
Statements made to the police by witnesses are not awarded the same level of scrutiny as statements made by the accused. The case of R v Oickle requires a confession made by the accused to be determined as voluntary before it is admitted into evidence, dealing with at least some of the coercion factors that are at play with false confessions (10). This confession rule engages the accused’s rights under the Charter of Rights and Freedoms and further expands on those rights. In contrast, where the statements in question are made by witnesses, the same Charter rights may very well be involved but there is no avenue for remedy if no charge follows from the production of the statement. As such, possible false statements are not subject to the same scrutiny as possible false confessions. Similarly, the methods used to produce those statements are also subjected to less scrutiny. Furthermore, statements given to the police are, of course, not evidence in and of themselves and so, one can argue, that a higher level of scrutiny is unnecessary here. However, it is important to remember that prior inconsistent statements can, and are often, used to attack a witness’ credibility. Through this process of impeachment, the contents of that prior statement can sometimes be introduced to the trier of fact. This, in fact, was the very same thing that happened to Nichol John in Milgaard’s case. The court of appeal in Milgaard’s case decided that while proof of the prior inconsistent statement was made in the presence of the jury (11), “the learned trial Judge carefully instructed the jury that the statement … was not evidence [and since] such a direction was a proper one” (12) it dealt with any prejudicial effect the prior statement might have had in the case at hand. This ruling may very well have been a proper one were it not for the unfortunate fact that, in this case, the statement in question turned out to be false. It the result of the pressures and repeated interrogations to which John was subjected in the course of police investigation.
I understand the legal and procedural difficulty of scrutinizing prior witness statements and interrogation tactics without unduly limiting police powers or overburdening the court. However, I also believe that this is a topic that should be awarded due consideration and should be debated more often in both psychological and legal circles that are concerned with the issue of wrongful convictions. It is my position that false witness testimony is on par with the issue of false confessions when it comes to causes of wrongful convictions and that better mechanisms of protection and discovery should be implemented.
Mark Costanzo & Daniel Krauss, (New York: Worth Publishers, 2012) at 103.
Edward P. MacCallum, “Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard” (Saskatoon, 2018) at 303.
Edward P. MacCallum, “Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard” (Saskatoon, 2018) at 304.
Carl Karp & Cecil Rosner, (Toronto: McClelland & Stewart, 1998) at 49.
Carl Karp & Cecil Rosner, (Toronto: McClelland & Stewart, 1998) at 50.
Carl Karp & Cecil Rosner, (Toronto: McClelland & Stewart, 1998) at 59.
Mark Costanzo & Daniel Krauss, (New York: Worth Publishers, 2012) at 39.
Mark Costanzo & Daniel Krauss, (New York: Worth Publishers, 2012) at 36.
Lawrence S. Wrightsman & Saul M. Kassin, (Newbury Park: Sage Publications, Inc., 1993) is a good source that outlines several types of false confessions that are classified primarily by the types of motivators that are in play.
R v Oickle,  2 SCR 3 at para 68.
R v Milgaard,  SJ No 264 (QL) at para 58.
R v Milgaard,  SJ No 264 (QL) at para 60.