Our friends at Taiwan Innocence Project recently shared with their followers about their experiences at the U.S.-Asia Law Institute’s Wrongful Conviction Program. Read a translation of their newsletter below.
【冤冤相報 no.62】礦井中的金絲雀——記紐約大學冤案實習計畫
2015年美國紐約大學法學院亞美法研究所（The U.S.-Asia Law Institute of NYU School of Law）柏恩敬（Ira Belkin）教授受邀到法官學院授課，在台期間，柏恩敬教授來到平冤協會，認識平冤運作，這是平冤與紐約大學亞美法研究所第一次交集。之後，亞美法研究所接續規劃了一場紐約大學的冤案實習計畫，要讓亞洲關心冤案的學者、律師們更認識美國的冤案實務。
In 2015, Professor Ira Belkin from U.S.-Asia Law Institute (USALI) of NYU School of Law was invited to give a lecture at the Judge’s Academy of Taiwan. And during his stay, he visited the office of Taiwan Innocence Project (TIP) and learned about how TIP works. This marks our first interaction with USALI. Later, USALI launched a multi-year wrongful convictions program, to help Asian scholars and lawyers gain deeper understanding about how wrongful convictions occur in the US.
這項實習計畫在2016年10月成行，當時台灣冤獄平反協會由執行長羅士翔參與，來到紐約，見識美國無辜者運動的發展。這項課程獲得許多迴響，也促進了亞洲無辜運動的推展。原本「僅此一次」的課程成為每年秋季的重要活動，平冤也年年參與，從中了解美國和亞洲各國的冤案救援發展。今年實習計畫由本會法務王郁茜參與，而在計畫尾聲，紐約大學特別安排了一場美國與東亞的冤案交流座談，則由陳又寧律師出席分享。
The first workshop was carried out in October 2016 in New York. TIP’s Executive Director, Shih-Hsiang Lo attended the workshop and witnessed the development of innocence movement in the U.S. This program was quite well-received and consequently helped to strengthen the development of the innocence movement in Asia. The original one-time program thus became an important annual event of USALI every fall. TIP continues to send representatives every year to attend this program to learn about innocence organizations in the United States as well as various Asian jurisdictions carrying out exoneration work. This year, Jada Wang from TIP Legal Department attended the workshop. Towards the end of this workshop, NYU arranged a special public dialogue between speakers from the US and East Asia on lessons learned from wrongful convictions, during which Lawyer Yu-ning Chen from TIP attended and shared with the audience the recent developments of TIP.
1992年無辜計畫（Innocence Project）在紐約成立，透過DNA建立起冤案救援的典範，從被冤者的平反到檢視誤判成因，再到制度建立，在冤案的地圖上，紐約有著特殊的地位，也讓紐約實習計劃更顯珍貴。
In 1992, the Innocence Project was founded in New York. Through DNA exonerations, Innocence Project established a model for exoneration work worldwide. From exonerating the wrongfully convicted to examining causes of miscarriage of justice, and establishing various corrective and preventative mechanisms. The Innocence Project of New York holds a special place on the map of global innocence work. Because of this unique connection, it makes the opportunity to attend the workshop in New York even more meaningful.
在諸多人的努力之下，每年來到紐約，平冤的案子都有幸分別帶來新的進展。阿澤的再審、無罪到定讞後DNA雪冤制度的建立，還有去年丹妮到紐約介紹下一個等待平反的冤案死囚謝志宏，18年果然不能再多了。於是今年便由郁茜向大家分享阿宏打開再審大門的進程。
Thanks to many people’s efforts, TIP is able to share some new progress in its cases every time when its members travel to New York. In 2017, we won the retrial and the exoneration of the Cheng Hsing-tse case, as well as legislation of the post-conviction DNA testing system. In 2018, at the USALI workshop, Tang-ni Liang introduced the Hsieh Chih-Hung case, where he was wrongfully convicted and has been on death row for 18 years. At the USALI workshop of 2019, Jada Wang reported on how TIP managed to open the door for a retrial in this case.
回望2016年參加第一場實習計畫後，平冤留下一本《西四街筆記》，此後在晴羽、丹妮、郁茜接續參與而寫下的交流分享筆記中，繼續累積著西四街對平冤的意義。據了解，亞美法研究所的冤案計畫四年一期，將進入尾聲。這期冤冤相報，由郁茜、又寧分工，撰寫2019的見聞與心得，感謝紐約大學亞美法研究所的用心安排，期待再相逢！
Looking back at USALI’s first wrongful convictions workshop in 2016, TIP published a West 4th Street Diary (translators’ note: named after the name of the street where USALI is located). From then on, Ching-Yu, Tang-ni and Jada, by taking part in the workshops and sharing their knowledge, experience and notes, have been continuously accumulating the significance of USALI to exoneration work at TIP. It is understood that USALI’s four-year program on wrongful convictions will come to an end this year. In this TIP newsletter #62, Jada and Yu-ning shared their observation and takeaways from this year’s workshop. We would like to thank USALI for its careful planning and considerate arrangement. Look forward to our collaborating in the future!
井中的金絲雀——記紐約大學冤案實習計畫
CANARY in a Coal Mine: on NYU Wrongful Convictions Workshop
文｜王郁茜
Written by Jada WANG
編｜王翊軒、柯昀青
Edited by Yi-Hsuan WANG Yun-ching KO
今年，是美國紐約大學法學院亞美法研究所第四年舉辦冤案計畫，參與者來自日本、越南、韓國、中國及香港等地，我也代表平冤前往紐約參加。
This year marks the fourth anniversary of USALI’s wrongful convictions workshop, with participants from Japan, Vietnam, South Korea, China and Hong Kong. I also took part in the workshop as a representative from TIP.
一件冤案，或是說任何一個案件，都有人證、物證，以及風暴核心的當事人。亞美法研究所在課程安排中，我們走進偵訊室、實驗室、法院和當事人的故事中，了解美國的司法制度、冤案成因和定讞後救濟方式。
In any given wrongful conviction case, or rather any case, there are witnesses, physical evidence and the defendant, who is at the center of the storm. Accordingly, USALI arranged the course of the program walking us into the interrogation room, the crime lab, the courts, and the story of the defendants. Through its program, we learned about the criminal justice system, causes of wrongful convictions and mechanisms of post-conviction relief in the US.
▌偵訊室中的警察和心理學教授
Police officers and professors of psychology in the interrogation room▌
在DNA技術成為定讞案件的新證據、讓冤案成為無可爭議的事實之前，許多專家學者對於虛假自白的概念嗤之以鼻。如今，有越來越多的專家學者透過這些已知的平反案件分析冤案的成因，其中一項重要成因就是虛假自白。
Before DNA technology became available as new evidence in post-conviction cases and thus made the existence wrongful conviction an indisputable fact, many experts and scholars had been sniffing at the notion of false confessions. Nowadays, more and more experts and scholars have joined the efforts to analyze causes of wrongful convictions based on documented exoneration cases. False confession has been proved to be one of the most important contributors to wrongful convictions.
這項計畫分別邀請到來自英國和美國的兩位警探與大家分享刑事偵查程序。來自英國的Andy Griffiths是國際知名的調查、訪談和訊問專家，負責培訓英國警察如何進行調查訪談；來自美國的James Trainum，則是某次在工作上無意間製造出虛假自白後，便開始全心投入偵訊程序改革的退休警探。
During this year’s workshop, USALI invited two detectives respectively from the UK and the U.S. to talk about criminal investigation. Dr. Andy Griffiths is a world-renowned expert in investigation, interview and interrogation, who was responsible for training UK police officers on how to conduct investigative interview. Mr. James Trainum is a retried American detective, who discovered a false confession that he unconsciously produced during interrogation, has been devoting his career to reform investigation and interrogation methods ever since.
除了在偵查第一線的警探外，計畫也邀請到心理學專家Saul Kassin教授蒞場。他的研究顯示，虛假自白不但會發生，從已知的冤案來看，越嚴重的罪行，虛假自白的比例反而越高。
In addition to front-line detectives, the workshop also invited Professor Saul Kassin, a leading psychologist to meet with the group. His research shows that false confessions not only occur, but also have a counter-intuitive pattern, which is, based on known wrongful convictions, the severer the charge is, the higher percentage of false confession will be.
It seems extremely unreasonable at the first glance, doesn’t it? Professor Kassin explained, “Someone might admit to trivial offenses in order to save the trouble or to go home early, but how could an innocent person admit to killing someone?”
Kassin教授訪問了冤案當事人，發現相對於真正的犯罪者，無辜的人之所以更容易做出虛假自白，是因為「在疲勞或壓力超出負荷的狀態下，清白的人容易選擇先妥協，並相信日後會有澄清的機會」。透過這些頂尖專家的分享，我們得以一窺偵訊室內的情況，包含訊問技巧和方式對受訊問者的影響以及潛藏的冤案成因。
Professor Kassin interviewed defendants from wrongful conviction cases and found that, compared to guilty defendants, the reason that innocent people are more likely to give false confessions is because “under exhaustion or overwhelming pressure, innocent people are more likely to compromise and believe that they will have the chance to clear their name later”. Through the information imparted from these leading experts, we got to learn the situation inside the interrogation room, including the impact of various interrogation methods and formats on the interrogated, and some potential causes of wrongful convictions.
心理學專家Saul Kassin教授分享虛假自白之成因。Psychologist Professor Saul Kassin sharing causes of false confessions.
▌實驗室裡的證物和鑑識人員
Physical Evidence and Forensic Analysts in Forensic Labs ▌
當警察在偵訊室透過目擊者、嫌犯和其他證人的陳述，抽絲剝繭試圖釐清案情時，證物則會進入實驗室，交由鑑識人員採集、分析和鑑定。
While police officers try to gather case facts by questioning eyewitnesses, defendants and other witnesses in the interrogation room, physical evidence will be sent to crime labs, subject to forensic analysts for collecting, analyzing and examining.
為了更加瞭解這個階段的運作，除了邀請相關專家來分享外，亞美法中心也安排大家參訪紐約市首席法醫辦公室（Office of Chief Medical Examiners，OCME）。當天，我們來到位於中城區的辦公大樓，大廳裡刻著OCME的箴言：「科學為正義服務」（Science serves Justice）。通過安檢後，我們來到專門提供參觀和鑑識人員訓練的實驗室。
To better explain how it works, in addition to inviting experts to talk to the group, USALI also arranged a visit to the Office of the Chief Medical Examiners (OCME). On that day, we met in front of its office building located in the midtown of New York City. In the lobby, I saw an engraved motto: “Science Serves Justice”. After passing the security, we went in to the training lab, which is designed specifically to train new forensic analysts and also open to the public for visiting.
鑑識人員向我們說明了幾種典型案件中的採證流程，如妨害性自主案件中的性侵驗傷包（rape kit）、鬥毆事件中的凶器或衣物等等。當這些證物被送到實驗室後，他們會採集物品上殘留的DNA，保存並鑑定樣本。在案件有需要的時候，鑑識人員也會出庭作證。
Forensic analysts explained to the group the procedure governing evidence collection in several typical types of crimes, e.g. rape kits in sexual assault cases, or weapons/pieces of clothes from battery cases. When these pieces of evidence are sent to this lab, they will collect the DNA that has been left on the items, preserve and test the samples. When needed, forensic analysts will also testify in court.
對於DNA鑑定，大部分人的印象都是：DNA是獨一無二的，一翻兩瞪眼，不可能出錯。然而，雖然科技進步使得鑑識人員只需要極少量的生物跡證就能檢測DNA，但結果卻往往難以盡如人意。實際上實驗室測試DNA的時候，並不會檢測完整的DNA，而是檢測特定的序列。同時，從犯罪現場取得的DNA也大多並不完整、品質參差不齊，大部分的樣本更是混合型別，增加了鑑定的難度。因此，鑑定人員談及的都是概率問題而非單純的是或不是。
When it comes to DNA testing, most people have the impression that DNA is so unique that it leaves no room for doubt and is infallible. Although the development of science and technology makes it possible to test DNA from low copy samples, the outcomes are usually unsatisfactory. In fact, when a crime lab performs DNA testing, it won’t test the entirety of DNA, but rather a selection of loci. Moreover, most of the times, DNA samples obtained from the crime scene are incomplete, of uneven quality, and often appear as mixtures. These factors all contribute to the complexity of DNA testing. As a result, the forensic analysts talk more about statistics, rather than simply exclusion or conclusion.
在課程的討論中，亞美法研究所的前執行長柏恩敬教授說：
During discussion, the former Executive Director of USALI, Professor Ira Belkin said:
“We would like to look for a simple, effective, infallible ironclad proof and DNA appears like one. But in fact, such proof does not exist.”
我想，這是對DNA，以及所有科學證據的最佳註解。
I think this is the best footnote to DNA evidence and all other forensic evidence.
▌監獄中的受冤者與救援團體
Incarcerated Victims of Miscarriage of Justice and Innocence Groups ▌
討論冤案，不可避免的一定會接觸它的核心：受冤者。中央公園五人案的受冤者Kevin Richardson在課程尾聲的公開演講中說：「當所有人都不相信我的時候，就像是扯破喉嚨大叫卻沒有人能聽見我的聲音。」
To address wrongful convictions, we would inevitably discuss about exonerees, the center of the issue. Kevin Richardson, one of five exonerees of the Central Park jogger case, spoke at the public dialogue, held at the end of the program that “our voices were loud during the 80s, but it was a whisper to the world; we felt nobody was listening even though we were screaming that we were innocent ”.
而幫無辜者找回聲音的，就是許許多多協助冤案平反的救援團體。我們在課程中接觸許多相關組織，包含紐約無辜計畫、無罪倡議組織、北卡羅萊納州無罪調查委員會和有罪確定審查小組等等。這些組織有民間的、政府機關轄下的、成立數十年的、新成立的⋯⋯唯一的共通點就是都致力於協助無辜的人重獲自由與清白。
To get the exonerees’ voices back, it is the work of various innocence projects and exoneration advocates. We had conversations with many such organizations throughout the workshop, including the Innocence Project, the Exoneration Initiative, the North Carolina Innocence Inquiry Commission as well as the Conviction Integrity Unit, etc. These organizations include ones not-for-profit, government established, long-established and newly-established. Their commonality is that they are all dedicated to helping wrongfully convicted people regain their liberty and innocence.
These cases of wrongful convictions are like canaries in the coal mine, calling attention for things that ail the criminal justice system overall. It is a quote from the last day of the program, and it is the most impressive quote throughout the whole trip to New York.
金絲雀在有毒氣逸散的礦井中會死亡，他們的死亡會警示礦工這裡並不安全。一個一個受冤者，在冤案的礦井中待了十年、二十年，他們的案件警示著我們，司法系統並不完美。
Canaries die in coal mines where toxic gas diffuses, and their death will alert the miners to the danger in the coal mine. Exonerees, one after another spent decades under the coal mine of wrongful convictions and their cases provide a warning to us that the criminal justice system is imperfect.
從1992年，僅接受DNA鑑定案件的無辜計畫成立至今，更多的冤案救援團體出現，他們協助那些問題重重，但沒有DNA證據可以鑑定的案件。這些案件的平反之所以成為可能，是因為DNA平反案件證明了，即便司法系統費盡心思避免冤枉無辜，判決仍存在錯誤。透過這些金絲雀，專家學者開始了解冤案的成因，諸如虛假自白、指認錯誤、記憶瑕疵等概念才得以被看見、討論和研究。也是透過這些已經平反的無辜者，再審查的機制開始被重視、被完善。
Since the establishment of the Innocence Project, which only represents cases where DNA could prove innocence, in 1992, more and more innocence organizations have emerged, providing assistance to cases lack of testable DNA evidence. The reason why it is even possible to rectify these cases, is because DNA exonerations prove to the world that even though a criminal justice system tries its best to prevent wrongful convictions, errors still exist in judgments. Through the death of these “canaries”, experts and scholars started to realize, discuss and study causes of wrongful conviction, such as false confession, eyewitness misidentification, faulty memory, etc. Similarly, thanks to these exonerees whose cases have been corrected, mechanism for reopening a case for a new trial has been taken more seriously and been improved continuously.
這趟旅行我飛越了大半個地球，然而這一端的世界裡，冤案的成因卻和台灣如此相似——熟悉的問題和狀況在不同的案件中重複出現。到頭來，我們都在同一條礦坑裡努力著，在感嘆的同時又充滿希望：有這麼多礦工，一定沒問題的。
During this trip, I flew across half the world, yet at the other side of the world, causes of wrongful convictions nevertheless look so similar to these found in Taiwan----familiar issues and problems occur repeatedly in various cases. At the end of day, we are struggling in the same coal mine. This makes us frustrated and at the same time filled with hope: with so many miners across the world, we can certainly succeed