The "Evidence"
So, it has been established that Robert Baltovich was the victim of a miscarriage of justice but what now? How did the circumstantial evidence lead to the wrongful conviction of an innocent man? Stick around, you're about to find out...
Key witnesses Marianna Perez and David Dibben's testimonies contributed greatly to the execution of this miscarriage of justice as they were at the core of the Crown's case (1). Perez claimed to have seen Baltovich sitting with Bain on a picnic table at 5:40pm on the day of Bain's disappearance and although Baltovich retained an alibi regarding his whereabouts during this time frame, the Crown proceeded forward with this evidence. Perez claimed to be unsure of the specific details of that evening, causing the court to have Perez undergo hypnosis in an attempt to sharpen her memories (1). This was a major ethical issue within Baltovich's case as the Supreme Court of Canada had ruled in R v Trochym that witnesses undergoing hypnosis could not provide credible witness testimony, thus making this evidence inadmissible in court (2). Daniel R. Webert states there are three major problems with the use of hypnosis on witnesses; a) they become more susceptible to suggestion as a result of unconscious influence on their beliefs and attitudes, b) they may fill in gaps of their memories to make it more comprehensible for other individuals, and c) there is a belief that hypnosis leads to "memory hardening", in which individuals have increased confidence in their memories, regardless of whether or not they are true or false (3). The work of Daniel R. Webert at the American Criminal Law Review illustrates the ethical issues of hypnosis on witnesses and highlights the sole fact that, although hypnosis may have positive affects, the cost- benefit analysis of its use in legal proceedings shows that hypnosis can lead to wrongful convictions and produce inaccuracies in witness testimony.
Moving on to Dibben, he also presented to the court that he saw Baltovich driving Bain's vehicle on the 22nd of June, three days after her disappearance (1). However, his testimony was also found to have many flaws and his perception of the man he believed to have been Baltovich had changed significantly over time and did not accurately match Baltovich's physical appearance (1). Dibben also later admitted to not paying adequate enough attention at the time of the sighting and stated he did not get a good look at the driver of Bain's vehicle (1). Much like Perez, his memory and description of the individual had evolved as the criminal case moved forward and more information was provided to the witnesses in an unethical manner.
(1) Innocence Canada. Robert Baltovich. https://www.innocencecanada.com/exonerations/robert-baltovich/#ftn23 (accessed February 2nd, 2021).
(2) Canadian Legal Information Institute. R. v. Trochym. https://www.canlii.org/en/on/onca/doc/2004/2004canlii1262/2004canlii1262.html (accessed February 2nd 2021).
(3) Webert, Daniel R. Are the Courts in a Trance? Approaches to the Admissibility of Hypnotically Enhanced Witness Testimony in Light of Empirical Evidence. American Criminal Law Review 2003; 40(3):1301-1328.
Another important ethical issue that occurred within Baltovich's trial is the use of faulty photo- lineup techniques. Perez, one of the key witnesses for the Crown, completed a photo- line up for the court in which the formatting used was a photo array (5). Perez admitted to selecting an individual within the photo line-up based on a "process of elimination", knowing, based off previously acquired information from the officer conducting the line- up that Baltovich was in fact present in the line-up (1). This is an action that ethical implications as line- ups are required to be conducted in a manner in which members of the force do not know the individuals included in the line-up to allow for the prevention of conveying suggestive information to the witness that may cause them to select the suspect that police are strongly considering as the sole suspect (1). Wells and Quinlivan highlight the sole fact that suggestibility during eyewitness identification procedures, like the photo line-up, can have a significant contribution on the conviction of innocent individuals (6). A lack of structure and function within criminal processes leading up to a trial hearing often leads to the inability to properly identify offenders during conducted testing on witnesses (6).
All evidence presented by the Crown was completely circumstantial and led to a miscarriage of justice. If resources and capabilities had been directed to ensuring the proper acquiring of credible evidence and performance of a fair and proper trial, there may have been an ability to identify the real suspect in the case of Elizabeth Bain's death. Rather than doing so, the Crown invested their assets and time into wrongfully convicting a man for a crime in which he did not commit and allowing the real suspect to roam free, with the ability to cause harm to other societal members.
(1) Innocence Canada. Robert Baltovich. https://www.innocencecanada.com/exonerations/robert-baltovich/#ftn23 (accessed February 2nd, 2021).
(2) Canadian Legal Information Institute. R. v. Trochym. https://www.canlii.org/en/on/onca/doc/2004/2004canlii1262/2004canlii1262.html (accessed February 2nd 2021).
(3) Webert, Daniel R. Are the Courts in a Trance? Approaches to the Admissibility of Hypnotically Enhanced Witness Testimony in Light of Empirical Evidence. American Criminal Law Review 2003; 40(3):1301-1328. (4) Wagstaff, Graham. F. Is there a future for forensic hypnosis? Journal of Investigative Psychology and Offender Profiling 2009; 6(1): 4357.
(4) Wagstaff, Graham. F. Is there a future for forensic hypnosis? Journal of Investigative Psychology and Offender Profiling 2009; 6(1): 4357.
(5) Canadian Legal Information Institute. R. v. Baltovich. https://www.canlii.org/en/on/onca/doc/2004/2004canlii45031/2004canlii45031.html (accessed February 2nd 2021).
(6) Wells, G. & Quinlivan, D. Suggestive Eyewitness Identification Procedures and the See C Reiability Test in Light of Eyewitness Science: 30 Years Later. Jourrnal of Law and Human Behaviour 2009: 33(1): 1-24.