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Canada’s National Judicial Institute: The Design, Development, and Delivery of a Signature NJI Course -- Preventing Wrongful Convictions
by T. Brettel Dawson and Natalie Salat

Canada’s National Judicial Institute (NJI) has earned an international reputation for its highly developed approach to judicial education – that is, judge-led, judging-focused and skills-based.

The NJI’s three-day seminar on Preventing Wrongful Convictions exemplifies the Institute’s innovative approach to program design and delivery. First presented to Canadian trial judges in 2001 as Frailties in the Criminal Justice Process, the course came about after several Commissions of Inquiry into wrongful convictions took place in Canada, and judges themselves began requesting education in this area. In response, the NJI has developed an intensive, skills-based judicial education program on this important topic.

Steering clear of long lectures, the seminar employs the most up-to-date adult learning principles. With a focus on skills-based, experiential learning, the program features thought-provoking videos, problem-solving activities and facilitated small-group discussions. It deals with topics ranging from eyewitness identification and false confessions to overzealous prosecution and expert evidence, which enables participants to hone their courtroom skills and learn from each other’s experiences. The next Preventing Wrongful Convictions seminar will take place in Victoria, B.C. in early 2009.

Judging by the evaluations from previous seminar participants, attendees appreciate the skills and knowledge they gained over the three-day program, indicating that the sessions opened their eyes to new ideas and approaches. Participants from past seminars have commented: “This was an excellent program in all aspects. Every trial judge should take it.” “I have a heightened sense of responsibility to ensure an accused gets a fair trial.” Echoing the sentiments of her fellow judges, one participant reflected that she came away with the need to be “constantly vigilant” in the courtroom, “to recognize and respond to the very critical issues presented at this seminar." The steps to success for this seminar are the focus of this article.

The Approach in Practice
As with all NJI courses, the design of Preventing Wrongful Convictions follows a multi-step process (see Fig. 1.), which includes forming a planning process, identifying learning needs, selecting the style of course (skills, substantive or social context), establishing learning objectives, clarifying content, selecting and sequencing learning activities, and developing each session in detail with the faculty members involved. Following the program, participants fill out a detailed evaluation form, providing feedback that assists in developing future seminars.

Planning
All NJI seminars start with a planning committee of diverse and representative membership. For an intensive, multifaceted, skills-focused program such as Preventing Wrongful Convictions, planning begins at least a year before the seminar is to take place. The committee brings together a group of judges, along with academics from related fields, and senior legal counsel. The NJI convenes the process, contributing a Senior Advisor, who is a lawyer and an expert in judicial curriculum design, and a program logistics manager. An articling student provides research and materials development support to the team.

Criminal law expert Justice Marc Rosenberg, a judge with the Court of Appeal for Ontario and a Judicial Associate with the NJI, played a key role in leading the development of Preventing Wrongful Convictions. He notes that the balance of expertise from the judiciary, academia, and the wider community is critical to program development, both in terms of acquiring the most up-to-date information and in presenting participants with a range of perspectives.

The committee meets regularly (either in person or through conference calls) to plan the substantive program. Each committee member is assigned to a sub-group that takes responsibility for a portion of the program, and reports regularly on progress to the full group.

Identifying Learning Needs
Applying the NJI’s “three-dimensional” learning philosophy to each iteration of the seminar, the planning committee’s scan of learning needs attends to the core knowledge judges require (in terms of cases, statutes, inquiries, etc), the judicial skills and tasks involved, and how social context dimensions interact with judicial process. Methods of needs assessment used by the committee include discussions with judges, previous course evaluations, examination of case law, and developments in the legal environment.

When the NJI began planning the original Preventing Wrongful Convictions program, not only did the high-profile Commissions of Inquiry provide context and suggest priority content for the seminar, but trial judges highlighted issues they wanted addressed based on their experiences and reflection on the Inquiries’ findings. While much public attention focused on the impact of advances in forensic technology, such as DNA evidence, judges focused on perennial concerns, such as keeping out unreliable evidence. Specifically, these issues included suspect evidence, eyewitness identification – a factor in more than 80 per cent of wrongful convictions – false confessions and jailhouse informants. Assessing credibility was another major concern, due to changes to Canadian law that have resulted in more cases where the evidence consists of the testimony of the complainant without a broad range of other material (so-called “he-said, she-said” cases). Over the last few years, other issues have gained prominence, including flawed expert evidence, ineffective defence counsel, and an increase in self-represented accused.

Clearly, there was no shortage of potential topics for the course. As Justice Rosenberg notes, the Commissions of Inquiry focused on systemic problems in prosecution and policing. Given the NJI’s forum of judicial education, the planning committee decided to focus the seminar on areas of interest to judges, with particular attention to the judge’s role in helping to prevent miscarriages of justice.

The topics for Preventing Wrongful Convictions reflected this choice: expert and eyewitness identification, use of suspect evidence in high-visibility cases, suspect witnesses (alibis, paid informants, co-accused), ineffective assistance of counsel, overzealous prosecutions, admissibility of confessions (false confessions and ‘noble-cause’ corruption of procedures), expert witnesses (including pathologist testimony and social science theories), and the judicial role.

Learning Objectives
What is it that the course should achieve? In addition to knowing more about the law and its social context, how can the program help judges to be better able to apply concepts to the tasks they face in fulfilling their roles? These are the questions that animate the next phase of the planning process. By defining learning objectives for the seminar as a whole and for each topic to be included, the shape of a course will begin to emerge. Planners will be able to define the kinds of learning activities that will achieve these objectives and develop a framework for meaningful evaluation of the program. Participants will also be able to see more clearly the knowledge, skills, and attitudes they are expected to acquire or improve upon.

With respect to dealing with suspect witnesses, for example, the stated objective in Preventing Wrongful Convictions is that “participants will be able to identify problems in relying on stereotypes, unproven assumptions and demeanour contributing to incorrect or inadequate assessments of credibility, and reliability of witnesses.”

This objective forms the starting point for the seminar’s segment on credibility assessment and recognizes that, while guided by principles of law, this task is a daily staple of a judge’s work and engages a range of skills. The learning activities, then, need to extend beyond lectures on the law. In the seminar, the topic is introduced from a judge’s point of view by Justice Rosenberg and from the point of view of a forensic psychologist, who discusses the psychology behind credibility assessment. With this legal and social science primer in mind, judges then view a video of simulated testimony in a robbery case. Evidence is given by a co-accused and by an alibi witness, and subjected to cross-examination, through which various inconsistencies emerge. The evidence is diametrically opposed. Judges are then asked to assess the witnesses’ credibility by completing a short questionnaire. The results of the questionnaire indicate that judges, like others who have watched the same demonstration, can come to very different conclusions about the credibility of the witnesses. Using this dilemma as a springboard, Justice Rosenberg and the psychologist then engage judges in a discussion about the various techniques and tools they can use to deal with suspect witnesses, to counteract variability in credibility assessment.

Objectives for other segments of the course reflect active learning goals, where knowledge is integrated with applications to the tasks judges perform and the social context in which the issues arise. With respect to eyewitness identification, the learning objective is to be able to identify problematic areas and develop tools to reduce the risk of improper convictions based on such evidence; for overzealous prosecutions, it is to be able to identify the flags or markers of such a situation, along with options and methods for appropriate judicial intervention; and for expert evidence, it is to correctly rule on admissibility.

Selecting and Sequencing Learning Activities
In the judging-focused model of experiential learning, course design begins rather than ends once content and learning objectives are identified (see Fig. 1.). Different methods of instruction yield different levels of engagement and retention. Judges, like all adults, have varied learning styles and preferences. Some prefer to brainstorm and view concrete situations from several viewpoints, others to use analytical models; some are problem solvers, while others prefer to use a hands-on, intuitive approach. This corresponds to the concept of differential learning styles or preferences (Kolb, David. Kolb’s Learning Styles, 1984). As NJI Senior Advisor Susan Doyle observes that the more involved the person is in the learning activity, the more information he or she retains. In fact, Ms. Doyle often quotes a Chinese proverb that says, “I hear and I forget, I see and I remember, I do and I understand.” (Robert Andrews, Mary Biggs, and Michael Seidel, eds. The Columbia World of Quotations. (New York: Columbia University Press, 1966)

Research indicates that material imparted by lecture alone results in limited retention – perhaps as little as five per cent after a short period has elapsed (see Fig. 2.). That figure rises as learners are asked to read, discuss or apply the information. In fact, the best way to thoroughly learn a subject is to teach it. As such, Preventing Wrongful Convictions features a considerable amount of small group work, with NJI-trained facilitators (many of whom are judges) encouraging and guiding discussion.

In general, the learning model seeks to move around a cycle of learning activities, first connecting learners to their own experience or views on a topic and then creating an opportunity to reflect with others or to observe performance of a task. To capture participants’ attention right from the start, the Preventing Wrongful Convictions segment on eyewitness identification begins with a video called What Jennifer Saw. This documentary, produced by the Public Broadcasting System in the U.S., highlights the numerous eyewitness identification errors that led to the wrongful conviction of Ronald Cotton, who spent 11 years in prison for a sexual assault he did not commit.

After the video, an eyewitness identification expert explains what went wrong. The expert has the judges do several exercises, including one where she asks them to look at a page of 26 composite photos and identify which one describes the accused. A debate inevitably ensues, with everyone voicing a different opinion. Ultimately, the participants learn that all 26 images are composites based on the same person, and that they are vastly different – bringing home the dangers inherent in using composite photos.

With these elements of experience, reflection and observation completed, the expert then moves to the next phase of the learning cycle: providing concepts and guiding principles based on research. From this foundation, she provides judges with the tools to deal with what may be going on in their own courtrooms, and alerts them to possible frailties in the eyewitness identification procedures adopted by the police in the case before them.

Participants then proceed to the next phase in the cycle: application. They break into small groups and examine a number of vignettes, from which they then attempt to identify problematic procedures or signs of mistaken identity.

A similar pattern applies to the other topics in the course, with learning activities varying in order to keep up the energy level and interest of the participants.

Detailed Planning with Faculty
Intensive collaboration with faculty members and facilitators is a core feature of the NJI planning process in the months leading up to the seminar. Lecturers work with the committee to develop problems and scenarios, and produce the scripts for videos or demonstrations to ensure a close match among learning objectives, content and application.

Without this linking together of people and ideas, a seminar could easily meander away from the main learning focus. For small-group discussions, the committee and lecturers carefully shape the group tasks and the information the participants will need. They also prepare notes for the facilitators, to guide them in leading the discussion with respect to process and core issues. Given how precious and short is judicial learning time, every effort is made to produce a tightly focused program.

Another crucial feature of the NJI process is the ‘pre-program’ faculty meeting, which brings together the planning committee, presenters or panellists and facilitators, along with the program manager. This may take place the day or evening before the program, as people assemble on-site. The meeting addresses substantive content, including issues, key knowledge points, the range of options, and preferred outcomes. The session reviews the planned activities, sets out goals for each particular session and gets everyone on the same page. Equipment can be pre-tested, facilitators can trial-run their sessions, and any final questions can be asked and answered.

Collaboration continues throughout the seminar. At the end of every day, faculty, the planning committee, the Senior Advisor, and the Program Manager meet to review progress and make any necessary adjustments.

Evaluation
The final step in the NJI process is a thorough evaluation of the program by both participants and the planning committee. At the end of seminars, judges are requested to fill in a detailed form asking them to assess various elements (speakers, format, materials, organization, etc.) and whether course objectives were met. Suggestions for changes or improvements are also invited.

After the comments are compiled, the members of the planning committee meet to reflect on the feedback. They also ponder the extent to which the seminar has offered potential to enhance judicial practice.

The committee looks very carefully at participant evaluations, and uses them to evolve the program. For instance, the first two offerings of Preventing Wrongful Convictions included a segment on jailhouse informants. But following the recommendations of a public inquiry, jailhouse informants were rarely called, and then only when there was solid, independent confirmation of their testimony. Judges noted this development in their evaluations and, as a result, the committee took the opportunity to replace this segment with more current topics.

For the 2009 seminar, expert evidence and incompetent defence counsel are two of the issues the planning committee has identified as requiring special attention. This comes in response to a series of high-profile disclosures of apparent professional incompetence or overzealousness on the part of health professionals. Judges are keen to discuss these challenging issues, which, unfortunately, will always present themselves. The NJI is likewise committed to addressing these challenges, with a focus on what judges can do to identify and respond to them.

Conclusion
While the full, three-day seminar on Preventing Wrongful Convictions takes place only in Canada, the NJI continues to present program elements, such as Credibility Assessment, to judges as far away as Ethiopia, Ukraine, and Russia. In so doing, the Institute is sharing its cutting-edge approach to judicial education with its counterparts around the world. However, the organization neither wants nor intends to lecture others on their own legal systems. Rather, the NJI is keen to show other judicial education providers how we teach so that they can adapt and develop programs for their own contexts.

Judicial education serves as a core support to law reform and administration of justice, and Preventing Wrongful Convictions exemplifies this. The seminar aims to assist judges in their responsibility to prevent future miscarriages of justice – including highlighting, where appropriate, the need for better investigative practices. In the dialogue that the seminar fosters among judges, policy-makers, academics, and lawyers, Justice Rosenberg has observed an interesting and promising back-and-forth dynamic. Many faculty members for the seminar regularly present their research to the police and other key participants in the criminal justice process, often taking what they gleaned from their discussion with judges to these settings. This can have a direct effect on procedures. Partnership with the NJI enhances understanding across the entire criminal justice system.

Preventing Wrongful Convictions is a signature course of the NJI. It adopts adult learning methods to create judging-focused education that provides judges with the knowledge, skills and contextual awareness that are the hallmark of effective judging. The seminar responds to a pressing need in the criminal justice process in our country and provides relevant and timely education. Though judge-led, it is the result of the efforts and collaboration of many experts. The program is evolving over time and promises to continue to contribute to judicial excellence in Canada and elsewhere in the world.

This article also has been accepted for publication in the premiere issue of Judicial Education and Training, the Journal of the International Organization for Judicial Training, as “Innovations in Judicial Education: Preventing Wrongful Convictions.” For more information on the JET Journal and the International Organization for Judicial Training (IOJT), go to http://www.iojt.org/iojt2/IOJTNewsletter~2/iojt_newsletter_more.html

About the authors: Professor T. Brettel Dawson, LL.B. (Hons) Canterbury (N.Z.), LL.M. Osgoode Hall (Toronto), Bar of New Zealand, is the Academic Director of the National Judicial Institute (NJI) and Associate Professor, Department of Law, Carleton University. Ms. Natalie Salat, B. J., is the Communications Officer of the National Judicial Institute. The NJI website is at www.nji.ca