Carolyn Hoyle On Sociolegal Approach Towards Analysing Decisionmaking of Criminal Cases Review Commission
In Forensic Science and Expert Testimony In Wrongful Convictions, Carolyn Hoyle argues for and provides a sociolegal analysis of the decision-making of the Criminal Cases Review Commission. Applying the Keith Hawkin’s theorization of the decision-making by legal actors, Hoyle uses empirical data to identify the ‘surround’, ‘field’, and ‘frames’ evident in the use of discretion by the officers of CCRC. In this article, she has restricted the analysis to the review of only those trials or appeals which were mainly focused on new forensic or expert evidence.
Hoyle begins by stating that CCRC commits only half of the total number of applications to thorough investigations, out of which, only 1–4% are actually referred to the court for review. Therefore, she argues, there’s considerable scope for discretion, either for a thorough examination of all possible avenues or a superficial consideration of the case.
Adopting a Sociolegal Approach
In her analysis of the empirical data, Hoyle has adopted the naturalistic sociolegal approach towards legal decision-making, elucidated vividly by Keith Hawkins. While arguing that legal actors often have little grasp of the factors that shape “inputs” and “outcomes” of their decisions, Hawkins stated that:
‘Decisions about legal standards and their enforcement, like other legal decisions, are made, then, in a much broader setting (their ‘surround’) and within a context, or ‘field’, defined by the legal and organizational mandate. Decision ‘frames’, the interpretive and classificatory devices operating in particular instances, are influenced by both surround and field.’
Hoyle adopts this interpretive approach to analyse influences that inform the ‘real possibility test’ followed by the CCRC in taking decisions on referrals.
The Influence of Surround
According to Hawkins, surround can be interpreted as social, political, economic, or other environments that influence discretionary decision-making. Hoyle argues that the changes in the surround of CCRC are marked by evolving forensic science, evolving Court jurisprudence and a dramatic rise in applications to the Commission alongside a reduction in their budget:
‘Hence, in reviewing cases, the Commission had to have one eye on the scientific expertise and another on evolving case law, and Case Records and Statements of Reasons in some reviews referred to the Court’s reluctance to render a conviction unsafe just because the science has moved on.’
The Influence of field
A decision field can be defined as settings/context in which decisions are made. In the case of CCRC, it is primarily the statute which operates as a decision field. Hoyle submits that the decision-making of the caseworkers is not just shaped by the statutory guidance on the real possibility test, but also by highly structured and detailed Casework Guidance Notes that are regularly revised in light of changing substantive law and jurisprudence:
‘In most forensic and expert evidence cases, Commission staff assessed the relative persuasiveness of the old and new evidence, taking account of evolutions in science, scientific method and interpretation of data. The predictive nature of the real possibility test means that the Commission needs to be mindful of the evolving Court jurisprudence and to reflect that in its internal policies. If it is thought that fresh expert evidence is not sufficiently different from that presented at trial, that it cannot challenge the prosecution case, or that the new expert evidence was known at trial, but a tactical decision was made by the defence not to use it, the Commission may be reluctant to refer the case.’
The analysis of empirical data suggested that the CCRC is more likely to refer the cases to the court when it has additional exculpatory evidence to accompany the ‘bigger and better expert’.
Decision Framing
Framing is a structure of knowledges, meanings, experience and values that are employed by the decision-maker while using her discretion. According to Hawkins, framing practices of a decisionmaker influence how the law is conceptualised in a given situation. While arguing that frames are informed by both the organizational culture and the individual biographies of the decisionmakers, Hoyle submits that:
‘The culture of the Commission emerged from our analysis of its responses to applications as well as from interviews with staff and observations throughout years of fieldwork. It is a somewhat risk-averse, careful, thorough organization that is diffident with the Court. That said, the culture of the organization is not static. It has recently changed, in response to criticisms and to the pressure of reduced budgets and an increased caseload, becoming a more efficient organization.’
While stating that despite the organizational cultures there are differences in the framing practices of individual staff, Hoyle highlights that experience, occupational background, personalities and even variations in tenacity can influence case review:
‘… different framing behaviour will likely influence distinct approaches from legal advisors, investigations advisors (who tend to be from policing backgrounds) and even throughout hierarchical structures — with young, inexperienced caseworkers likely to adopt different frames to established commissioners.’
Hoyle goes on to highlight that while some officers that decisions confidently without requiring detailed information, others require more data before they finally reach a decision. Therefore, she argues that there’s a need to understand information needs both in terms of a decision maker’s cognitive needs (gaps or deficiencies in their understanding or knowledge) and in terms of their affective or emotional needs. She says:
‘The risk with anxious caseworkers who seek ever increasing amounts of data is that an investigation takes many more months or years than might be necessary, causing distress to the applicant and impacting on resources at the Commission.’
Apart from the legal decision frame, another factor that assists the decisionmakers in managing ambiguity is the narrative frame. Narrative frames, which work alongside the legal frame, include stories that emerge from the case analysis and make the evidence more or less plausible. However, narrative frames do not compete with the legal frames as a good story cannot compensate for the lack of evidence to meet the real possibility threshold:
‘When it is not clear if new forensic or expert evidence could satisfy the real possibility test, Commission staff sometimes turn to a narrative decision frame; they select a plausible meaning from possibly several alternative meanings to make sense of past events about which they inevitably have only partial information. When there are competing expert testimonies, both concerning evidence presented at trial and new expert evidence, they must judge which is the most persuasive. In making these decisions, they try to shape a plausible narrative out of the sometimes-disparate evidence at hand. This can be hard if the applicant cannot provide a credible alternative explanation to that presented by the prosecution.’
Complement this with essays by Richard Lempert and Nicola Lacey in Keith Hawkins’ Uses of Discretion, and Kenneth Culp Davis on Discretionary Justice.
