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You are here: BAILII >> Databases >> United Kingdom Journals >> McCartney, 'Liberating legal Education? Innocence Projects in the US and Australia' URL: http://www.bailii.org/uk/other/journals/WebJCLI/2006/issue3/mccartney3.html Cite as: McCartney, 'Liberating legal Education? Innocence Projects in the US and Australia' |
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Director, University of Leeds Innocence Project
School of Law, University of Leeds
Since the establishment of the first student-led Innocence Project at New York’s Cardozo Law School in 1992, innocence projects have spread across the United States and are now also established in Canada and Australia. Founded upon experiences of Innocence Projects gained in the US and Australia, this paper explores the educational merits of this method of legal education. The potential benefits of Innocence Projects in the UK are discussed, with reference to ongoing demands for innovation in legal education; the pressing need to defeat plagiarism with novel assessment techniques; the requirement to provide students with ‘enterprise skills’ and enhanced ‘information literacy’; and efforts to encourage ‘deep’ learning and reflective practice. This paper concludes that, as Burridge (2004) asserts, the UK has been slow to emulate international exemplary educational techniques that achieve important pedagogical aims. While student law clinics meet some of these aims, and there are encouraging signs of interest in innocence projects in the UK, this paper argues that valuable lessons from the US and Australia can still be learnt within the domestic legal education community.
The aims, and quality of undergraduate legal education in the UK has remained under the spotlight since the ACLEC Report of 1996, with increasing demand from all quarters for improvement in legal education. Innovation in teaching and assessment is becoming more urgent as plagiarism increases at the same time as expectations of student “customers” are rising, with students becoming “more discerning and demanding, thereby ensuring that the issue of teaching quality becomes more important as the ‘customers’ become more vocal and powerful.” (Thomas 2000:2).
There are also implications for legal educationalists arising from the changing
student body, with the homogeneity of the student body having all but disappeared,
leaving traditional teaching and assessment methods poorly reflecting the diversity
of students; “The law, it seems, is forever changing, but law teaching is not.”
(Clegg 2004:40) Historically popular law degrees are now seen to be lagging
behind, “characterised by monotonous lectures and poorly attended tutorials”.
(McFarlane 1988:534). As Thomas (2000:33) reminds us: “Law is not intrinsically
boring but can be made so.” Meanwhile other disciplines and other countries
have been:
“…eagerly searching for ways to make their teaching more relevant and effective by engaging their students beyond the lecture and seminar discussion format. Law abounds with such possibilities… Many of today’s law teachers have grown up with memories of the unacceptable face of law lecturing, yet it is still the overwhelming medium for passing down knowledge.” (Burridge 2004:1)
Additionally, at the same time that debate continues over Law Society proposals to “relax” the strict routes of qualification for entry into the legal profession, employers have begun to call for greater influence, with a risk that; “unless they are convinced that law degrees provide the development of critical analysis, legal reasoning and contextual understanding of the background to legal practice… they are unlikely to support the continuation for the qualifying degree in its present form.” (Burridge 2004:1) In response, clinical legal education, well established in other jurisdictions, is increasingly seen as providing the aspiring lawyer not only with pre-practice experience, but a range of learning opportunities for all students, as well as benefiting the community and university. While the UK clinical movement is still considered marginal, there are now several university law schools offering clinical experience for students, with their activities providing; ‘valuable alternatives to the traditional diet of lecture and seminar’ (Thomas 2000:37). As Giddings (2003:21) explains, “clinics are promoted to students as the best environment in which to develop ‘hands on’ legal skills while being showcased to the general community as examples of university commitment to community services and access to justice.”
While “problem questions” based on real cases have long been a staple of the law curriculum, real benefits do not accrue from repeated exposure to “fictional” cases (no matter how entertaining), as a student of Griffith University Innocence Project confessed: “I am just so bored of hypotheticals over and over again”. Terenzini (1999:35/ 37) explains:
“Learning occurs best when it is ‘situated’, when the challenge encountered has real meaning in a real context. Learning is more likely when students encounter problems they want to solve, problems that are not mere exercises in a classroom or for a homework assignment, devoid of any meaningful context. Learning is enhanced when it occurs in the context of a ‘compelling situation’ which invites the student to draw upon past knowledge and competencies while adapting to new circumstances… Currently, however, we appear to believe that learning involves mastery of abstractions or principles.”
While not arguing for the rejection of ‘problem-solving’ practice, for ‘deep learning’ to occur, there needs to be greater innovation in both content delivery and assessment, as MacFarlane (1988:534) rightly comments:
“It is wholly illogical, not to say unfair, to devote 90% of our teaching energies to administering lectures and handouts which focus on information, and then feel disappointed with essays or examination papers which are at least 90% dominated by regurgitated information, and lacking in analysis, creative research and application.”
Clinical legal education advocates espouse benefits arising from work on live-client cases, with graduates demonstrating ‘an ability to reflect and analyse and become self-reliant.’ (Brayne et al, 1998:xiii). Learning law in a clinical environment is also contextual, with Hinett (2002:1) stressing that for law students; “the context in which they learn and operate affects how and what they understand.” As Brayne et al (1998:xiii) argue: “There is growing recognition that knowledge of the law is best understood in the context within which it operates in our complex society…” Johnstone (1999:8) argues that is if of fundamental concern that law students find “greater interest in what they are studying, and this is achieved by continuously directing them towards its greater meaning”. Legal education clinicians lay claim to developing such perspectives within a socio-legal context, while Thomas (2000:7) argues that:
“Traditional doctrinal exposition is a desert fit neither for the habitation of the eclectically curious nor the single minded, would-be successful, legal practitioner… instead, content must reflect an awareness of the wider political and social structures that affect and are affected by the law and legal personnel.”
Such contextual learning with a socio-political perspective may approach satisfying Dearing’s call; “In a world which changes rapidly, the nation will need people with broad perspectives.” (Dearing 1997: para.9.3).
The demand for contextual learning is coupled with calls for legal education to develop a “moral voice”, with ethical dimensions of law, previously neglected, playing a greater role. The ACLEC Report was the catalyst for a growth in emphasis for the moral aspect of legal education (Webb 1998:135), calling as it did for the development of “a commitment to fundamental legal values of ‘justice, fairness, and high ethical standards.”(ACLEC 1996: para 2.4). The ACLEC first report further claimed that: “no amount of external regulation of professional practice will serve as an adequate substitute for the personal and professional values and standards that lawyers should internalise from the earliest stages of their education and training.” (para 1.19).
Such demands for innovative, high-quality teaching; contextual learning; wider socio-political perspectives; and a focus upon “justice, fairness and high ethical standards”, requires the law educator to address both the content of law courses, and their delivery and assessment. The clinical legal movement in the UK has provided some ideas, yet remains limited, with a perceived focus upon pre-practice skills not suited to students who may not pursue a career in the legal profession. The “Innocence Project”, as a variation of a law clinic, may offer further ideas on course content and delivery, which provides a range of opportunities for experiential “deep” learning; novel assessment; reflective learning; critical skills development; and the introduction of “enterprise skills”, employability issues and information literacy into the curriculum. Before considering these issues, it is instructive to trace the growth of Innocence Projects in the US, Canada and Australia, and the nascence of an “Innocence Movement”. The paper will then consider the learning and teaching benefits of Innocence Projects and challenges to their establishment in the UK.
Whilst gaining in momentum and influence in the late 1990s, the ‘innocence movement’, (which some represent as constituting a new national civil rights movement in the US), (1) has its roots in a small non-profit organisation founded in 1983. Former corporate executive and lay minister James McCloskey instituted Centurion Ministries, dedicated to vindicating, and freeing the wrongfully convicted, particularly those facing the death penalty, or life imprisonment. (2) Perhaps better known as the forerunner of the innocence movement, and the ignition for a developing “innocence scholarship”, is the non-profit legal clinic established by Barry Scheck and Peter Neufeld at the Cardozo School of Law in New York in 1992. This student project investigates and litigates cases where post-conviction DNA testing can provide conclusive evidence of innocence. To March 2006, they have assisted with 175 exonerations, many from death row. (3) The founders, overwhelmed by the response to their project, with resources clearly unable to address the response adequately, undertook to establish ‘satellite’ innocence projects, and formed the Innocence Network. With the success of the Cardozo project, and those that have followed, not only has the pace of exonerations continued to grow, but innocence projects have spread across America, (with some States now having more than one project operational), and have reached Canada and Australia, to form an international Innocence Network of projects.
Innocence Projects are not uniformly constituted, and take different forms. Most, like the Cardozo project, are affiliated with law schools and are similar to many legal pro-bono clinics, but others incorporate other academic departments, such as journalism, criminal justice/criminology, or other social science disciplines. (4) Some projects have no law school affiliation, instead locating supportive legal professionals in their communities to form local networks of dedicated volunteers and professionals working pro bono. Understandably, given their different constitutions and settings, projects have varying aims, priorities, and working practices. (Medwed 2003:1100). Individual projects determine their criteria for case acceptance, including whether they require there to be biological evidence, and whether there will be a requirement that there be a minimum sentence left to serve. (Innocence Projects continually receive large numbers of letters requesting help, so proper screening mechanisms and priorities are essential from the outset). However, as Medwed (2003:1101) emphasises:
“Despite the differences between law school innocence projects… they tend to share a common emphasis on 1) seeking the release of prisoners whom members of the project believe to be innocent of the crimes for which they have been convicted and for whom there are few other alternatives for legal representation, while 2) simultaneously providing a first-rate educational experience for students.”
The Cardozo project has a wide remit, stating that its mission is to:
This remit is only limited by an insistence upon available DNA evidence (other projects accept cases with no biological evidence). The Northwestern Center on Wrongful Convictions has three components: 1) representation; where students, staff and lawyers work together to investigate innocence claims; 2) research; with staff and students identifying systemic problems in the criminal justice system; and 3) community services; developing initiatives to raise public awareness of the prevalence, social costs, and causes of wrongful convictions. The Center also works with community groups to assist exonerees cope with reintegration.
With the success and spread of Innocence Projects in the US, others have emulated this mode of legal education. Osgoode Law School at York University in Canada launched an Innocence Project in 1999 (with a further Canadian project in planning), while in Australia, two Innocence Projects were launched in 2001, at Griffith University,
Queensland and the University of Technology, Sydney. A further project in Melbourne is also now operational, with plans in place for a project in Perth,
WA. The Griffith University law school Innocence Project was launched in collaboration with two local law firms. (5) The project has four goals:
1. to secure the release of innocent but convicted people;
2. to achieve exonerations regardless of imprisonment;
3. to educate students on criminal justice system and potential for wrongful conviction;
4. to foster a sense of responsibility and a passion for justice in law students.
The Project at the University of Technology, Sydney, has stated its priority is “to provide a great learning experience for students, to train future lawyers to be critical and involved, practical and ethical”.(6) The students are introduced to fundamental concepts in law such as practical skills; ethical responsibility; commitment to the community and the disadvantaged. The project accepts applications from prisoners in New South Wales who claim innocence, have more than two years of their sentence remaining, and are unrepresented legally. The majority of projects are similarly structured to be primarily led and run by students. Often these students will have studied wrongful convictions, or will have a grounding in criminal law, criminal evidence, or criminal justice studies.
Once a case is accepted after preliminary screening,(7) participants read trial transcripts and other documentation. Cases are then re-investigated by students, with new evidence or new arguments pursued through the courts by the students or staff, or taken up by legal professionals. Most often, it takes several years before an exoneration may be secured, but experience demonstrates that once the first exoneration is secured, it does not take so long for others to follow. Exonerations, while clearly welcome and indicative of an effective project as well as incredible motivation for staff and students (and fund-raisers), are not an evaluative tool for innocence projects. “Success” is measured rather, in educational terms, with student experiences and learning outcomes being the true evaluative mechanism.
Such an educational “mission” is stressed by many projects, including the Northern Arizona Innocence Project which states that the project: “provides an unparalleled opportunity for theory and praxis to meet in a real-life experience. Students can apply their theoretical, conceptual, and empirical knowledge of due process and the justice system to real cases”.(8) However, in contrasting the Innocence Projects of Sydney and
Queensland, it has been found that focusing on exonerations has, perhaps counter-intuitively, lead to greater educational benefits, as the students have proved to be more engaged and motivated to work harder toward the goal of exoneration, than their own learning. It is the purported educational benefits of such work on “real” wrongful conviction cases while working on Innocence Projects that this paper shall focus upon.(9)
As described, an Innocence Project can take many forms, but essentially is a group of students studying previous wrongful convictions, and investigating alleged wrongful convictions with a view to achieving the exoneration of the individual(s). Projects usually offer a combination of conventional study of law, alongside investigative work. This study of previous wrongful convictions and their causes has educational merit in and of itself and can constitute a stand-alone module for those not wishing to establish an Innocence Project. However, the Innocence Project model potentially provides greater additional learning and teaching benefits which will be considered in brief.
Wrongful convictions can elucidate all aspects of the criminal process as well as socio-legal and criminological concepts. There is also a valuable legal and social history entwined with wrongful convictions, with many significant reforms influenced by notorious cases (Naughton 2001). The study of wrongful convictions also has an inherently interdisciplinary perspective, with focus necessarily drawn to the interaction between science; psychology; criminology; jurisprudence; sociology; government; the media; and law, also providing an international perspective on justice. The study of previous wrongful convictions can also inject scepticism into students who may open their eyes to the realities of criminal processes and the application of the law previously learnt about from textbooks and lectures. The study of wrongful convictions then compliments modules on criminal law, criminal procedure etc. developing in particular, in depth knowledge of laws relating to the police, evidence, and appellate procedures. In particular, the study of wrongful convictions; “serves a valuable pedagogical purpose of breaking down the artificial boundaries that exist between criminal justice subjects.” (Roach 2003-4:363). Students receive a more balanced view of the criminal justice system, normally only being taught one side of the story (crime, prosecution etc.) and remaining generally ill-informed on what happens when system fails or breaks down and the consequences.
Further, as Roach (2003-4:361) explains; “A wrongful conviction should encourage students to explore the ethical foundations of the criminal justice system and why society may have less tolerance for wrongful convictions than wrongful acquittals.” Study of wrongful convictions also necessarily provides an; “effective vehicle to discuss how the criminal justice system can discriminate against racial minorities, the poor, the mentally disabled, and others from disadvantaged groups… [encouraging] students to consider how the various phases and institutions of the criminal justice system interact and can work to the disadvantage of vulnerable groups.” (Roach 2003-4:365). A course can incorporate the many “popular” writings and even films on previous wrongful convictions, exciting student interest but also demonstrating; “in a very concrete manner, the human consequences of the use of the criminal process” (Roach 2003-4:352). As Roach (2003-4:351) concludes, the study of wrongful convictions:
“…can provide students with valuable insight into the interaction of various phases of the criminal process as they can combine to produce a miscarriage of justice… a case study is also an excellent way to make students reflect on issues of ethics and competence, the importance of fact-finding in the criminal process, the effects of discrimination on the criminal process, the way other countries confront the dangers of wrongful convictions, and finally, on the fallibility of the criminal process.”
An Innocence Project goes beyond the study of previous cases and the “innocence scholarship” on the causes of wrongful convictions. The defining feature of Innocence Projects is their investigation role, with students involved in real cases, seeking to assist in bringing successful appeals for their clients. Innocence Projects most often deal with serious, contested cases which are rare (students need to be reminded that they are dealing with unusual cases in the context of the criminal justice system as a whole). Students are however, afforded the opportunity of seeing the system “in full flow”, with a wide range of agencies and processes involved, providing a more “holistic” approach to law not achieved by the rigid compartmentalisation of most law degrees.
There are a variety of course structures, assessment regimes, and teaching methods, but what is stressed by project directors, is that the “learning outcomes” are a focal point. While project directors prioritise different outcomes, there is a general consensus that most, if not all students should achieve competency in, or gain experience in the following:
· “Lawyering” skills: dealing with clients; acting like a professional and dealing with other professionals; communication skills – written/ oral/ formal presentation.
· Critical thinking and analysis: Problem solving; creative/ lateral thinking; collaboration.
· Case management: record keeping/ time management; organisation and prioritising; dealing with interruptions and unscheduled work.
· Fact finding: utilising variety of resources; use of different disciplines outside of law; application of law to the facts.
It is the essential element of working - most often in pairs or small teams, as well as part of the larger group - on “real problems” as opposed to hypothetical, or simulated ones, that is their defining characteristic, and as Hinett (2002:25) describes, real problems,
“…do not have simple solutions, but require comparison and analysis of resources, strategies, and costs. As such, the learner has to develop skills of retrieval, selection and discrimination in order to solve the problem. Students also develop group working skills as they work together to solve a common problem.”
It is the engagement with real problems that gives students “an opportunity to understand for themselves the complexity of human problems.” (Hinett 2002:18). Their quest for solutions, and methods for overcoming hurdles, are central to the process of “experiential learning”, which stresses that learning is most effective when students are actively involved in their learning.
While experiential learning has been long been established as effective pedagogy (see Kolb 1984), it is undergoing renewed interest amongst educationalists in the UK (Thomas 2000:38). This interest is due to the now wide acceptance of the use of experiential learning to facilitate “deep” learning, as opposed to the “surface” learning so often seen now among “strategic” students, and most often seen; “as being correlated with a weak understanding of material and a poor examination performance.” (Entwistle and Ramsden, 1982:177). Yet research continues to demonstrate that “education systems often, in effect, lead students to work towards exams using an achieving, often surface approach, rather than towards more intrinsic, enduring outcomes, such as deep learning, personal development and transferable skills.” (Pee et al 2000:759). However, such learning; “remains elusive in most law curricula,” (Sylvester 2003:29), with Burridge (2004:1) claiming that “within legal education generally there is an absence of ‘more imaginative experiential learning…”.
Medwed (2003:1142) states that the primary educational benefit of Innocence Projects in the US has been related to experiential learning, although he claims “many pedagogical advantages.” Clinical legal education claims to provide “experiential learning”, by avoiding “old style” teaching methods which aim to transmit information, which leads to “hopelessly short-term… knowledge which is not founded upon understanding or reinforced by practice” (MacFarlane 1988:534). As Quigley (1995:475) explains: “the single most critical defining element of clinical education is that it is experience-based learning… that students learn most effectively by participating in their own education by actually representing people.” Further, clinic students with their own “clients” are often: “more motivated to learn the material to help the ‘real’ client than they are to engage in the abstract classroom dialogue.” (Smith 1999:530). The Innocence Project goes further than most clinics operating in the UK, by assisting in criminal cases, allowing students what Barry et al (2000:15) call a “tactile connection with the obligation to find substantive and creative ways to respond to unmet legal needs.”
Student interaction with real cases and attempting to satisfy unmet legal needs can provide a strong impetus to learn as Fell (1996:280) has seen in law clinics: “for the first time for many law students, came the realisation that what they were doing was more than just about them…. Live-client representation proved to have a highly emotional and exhilarating impact on students.” Among Innocence Project graduates, there is identified a strong commitment to the work, one graduate of Griffith University claiming: “There is no greater privilege in this profession than to be able to assist someone in the pursuit of justice.”(10) In addition, students on Innocence Projects have demands upon them to “reflect” upon their experiences, which “is about maximising deep and minimising surface approaches to learning.” (Hinett 2002: preface). As Webb (1995:192) explains, while learning commences with an experience: “to learn from that experience we require an opportunity for reflection on that experience, and the ability to abstract and internalise experiences and reflection in the form of a theory, which may then be tested in new situations.” Innocence Projects require reflection individually, in pairs and as a group, many requiring reflection to be demonstrated as part of their assessment.
Assessment has come in recent years, to be dominated by “concerns about authenticity of student work and the fear of plagiarism...”(Clegg 2004:4), prompting interest in assessment methods that can circumvent student malpractice, including the use of journals “a pedagogical tool with over two thousand years of recorded history” (Ogilvey 1996:55). As Ogilvey (1996:55) asserts: “the journal is a pedagogical tool worthy of more explicit attention by both clinical law teachers and non-clinical faculty alike”. Most Innocence Projects, by way of assessment, require students to keep a reflective journal as part of a portfolio of work. Whilst there remain many challenges in the use of student journals (particularly concerning confidentiality; Pee et al 2000), they have significant benefits in tackling academic malpractice and plagiarism:
“…the use of reflective diaries and portfolios can also be used to confirm authenticity. A carefully constructed set of criteria by which to assess reflective and affective capacities makes it difficult for students to pass someone else’s work off as their own… it is difficult for others to fake.” (Hinett 2002:48)
As real-life problems present unique challenges (to students and staff), journals can be used to assist, and further capitalise upon their use for learning and teaching outcomes: “many well structured problems can be resolved through the efficient use of memory. Few ill-structured problems can be resolved without a more complex and wide-ranging struggle for solutions, and a journal can be a valuable tool for pursuing, as well as recording, that struggle.” (Ogilvy 1996:73). The maintenance of a student journal encourages student engagement not only with critical writing, but: “probing beneath the surface of problems; thinking more deeply about the materials, products, and processes of learning; and taking more responsibility for their own learning.”(Ogilvey 1996:60). It is this responsibility for learning that is central to Innocence Projects, with students given responsibility of not only their own cases and their own development during their time on the project, but also the running of the Project on a collective basis (indeed the Innocence Project at Georgetown University is wholly run by students, who liaise when required with the legal team of an Innocence Project at another local university). This student “ownership” is at the heart of student responsibility for their learning, a coveted attitude which lecturers must attempt to inculcate:
“In the context of the constantly evolving needs of the global employment market it is essential that students are equipped to be flexible, adaptable and prepared to take responsibility for their own learning and their own continuous personal and professional development. This places a responsibility on teachers and tutors in higher education to develop teaching environments which encourage students to take a more pro-active role in articulating and striving towards self-determined learning goals.” (Stefani 1998:339).
In addition to building on efforts to scupper malpractice and plagiarism, and assisting in problem solving, journals are a vital tool for reflection; essential for deep learning: “reflection is…crucial to deep learning, being involved in making meaning. Reflection enables new experiences to be integrated into existing frameworks of knowledge; an idea fundamental to constructivist theories of learning.” (Pee et al 2000:755). As Terenzini (1999:35) explains: “long term retention of what has been learned, and the ability to apply it to somewhat different, but related, problems, or in different settings, also require reflection. Reflection permits the consolidation, the internalisation, the ‘deeper learning’ we aim to facilitate”. Reflection can assist in contextualising and broadening learning:
“The art of reflecting is one which causes us to make sense of what we’ve learned, why we learned it, and how that particular increment of learning took place. Moreover, reflection is about linking one increment of learning to the wider perspective of learning – heading towards seeing the bigger picture.” (Race 2002:1).
This “bigger picture” is of particular relevance to law students: “reflection on what they know and don’t know helps students to appreciate that law is a social science open to interpretation” (emphasis in original) (Hinett 2002:5). Such reflection and critical writing is also vital for professional legal practice:
“If students do not develop an instinctive habit of learning, developing, and applying the law through a critical writing process, they are less likely to be interested in or capable of engaging in the continual task of learning, creating, and applying the law by writing when they enter practice.”(Kissam 1987:141)
Students also develop the reflective skills that facilitate “life-long learning”, the process of self-reflection enabling students to “truly sharpen their practical legal skills and obtain a mechanism for deconstructing and learning from their experiences that will permit them to improve their skills continually over the course of their careers” (Medwed 2003: 1131). Medwed (2003:1146) also asserts that on an Innocence Project, “self-evaluation” by students, compels them: “to be more responsible for their education both in the clinic (the short-run) and later as practitioners (the long-run)”.
In addition, the provision of a humane legal service for clients “can only flow from a humane education, one which has promoted at least a little self-knowledge.” (Boon 1998 :168). As Webb (1998:138) claims: “No-one is better placed than the academics to make the necessary early links between reflective learning and reflective practice.” To ignore this element of education may constitute “an abnegation of the academic responsibility to help shape, progressively, the legal profession of tomorrow”. (MacFarlane 1997:443). As Schon has convincingly argued, the best practitioners “develop their skills through continual reflection about the uncertainties, complexity and value conflicts that confront them in practice situations.” (Schon 1995:250) (see also Maughan 1996). As such, the skills of critical thinking and reflection “are probably essential elements in the thinking of almost all truly effective lawyers”. (Ogilvey 1996:62).
Roach (2003-4:361), among others, rightly claims that “issues of ethics and competence cannot be ignored in the basic law school curriculum”. LeBrun and Johnstone (1994:165) call law an “ethically saturated arena”, that demands students be given “opportunities to discuss ethical issues and moral dilemmas so that they are better equipped to reach their own decisions about law and the legal system”. The ACLEC first report itself stressed the need for “contextual” learning in law and a commitment to the explicit teaching of values. (Webb 1998: 136) Johnstone (1999:7) argues that a liberal legal education should develop in students a critical understanding of the law machine, but also turn law students:
“…not just into more able lawyers but into more able persons. University legal education should seek to promote personal development by cultivating knowledge and understanding, intellectual virtues, imagination, intellectual skills, self-reflection, moral virtues and habits, a capacity for social and political involvement, and a sense of responsibility for the values one espouses and the relationships into which one enters”.
Indeed, in interviews with students of the Griffith University Innocence Project, it was such attributes that students highlighted as inspiring them to work on the Project: “I want a feeling of making a contribution”; “some of us care about society, justice, social issues, etc. and the cases we work on represent that”; “I believe in justice, I’m an idealist”. Proponents claim that personal reflection, so fundamental to Innocence Projects, “encourages the development of both cognitive and affective theories of moral and ethical behaviour, challenging students to integrate these into their personal belief systems as a result of their experiences instead of (at best) passively absorbing the ‘rules’ of professional conduct.” (McFarlane 1998:16) Yet, as Webb (1998:138) explains, while traditional clinics teach students important skills “it does not necessarily encourage them to question the uses to which those skills are put.” As Boon (1996:129) elaborates:
“…students need not just to ‘do’ but to develop a perspective which enables them to ask why, given particular circumstances, lawyers should ‘do’ in a particular way. This must involve a scholarly enquiry into action, motivation, and ethics, laying the foundation of an ability to reflect, not only on performance but on the underlying rationale for action.”
Innocence Projects, with their wider remit than most pre-practice skills development clinics, can lead to students seriously questioning the use of their skills and the consideration of ethical behaviour, satisfying Webb’s call for “an explicit educational focus on the skills involved in developing moral judgement competence.” (Webb 1998:139) (see Nicolson 2005).
Directors of Innocence Projects in the US are also optimistic that their efforts to teach students how to behave ethically, will create solidarity in later years between ethical lawyers, (a solidarity reported to be lacking at present). Their concern is with producing “responsible” lawyers for the future, with strong ethical foundations and a core goal of achieving justice. They believe that both skills and strong ethical values are essential to the future of justice, similar sentiments to those expressed by Boon (1998:167):
“…the integration of skills and knowledge should assist practitioners in achieving the good of legal professions; achieving justice. The development of virtues consistent with this social good must be a central goal of legal education. They form a foundation for achieving the ‘internal goods’ intrinsic to a ‘practice’ which can only be achieved if a person engages with the practice with justice, courage and honesty.
While skills training can be undertaken via simulations etc., “Responsibility is taught by the process of being responsible” (Redlich 1980:623). As Leleiko (1980:653) explains:
“It is the experience of relating to clients and having the power to affect another human being which invites the student to analyse the nature of the lawyer’s responsibility, and in particular, his or her own reactions to exercising such responsibility”.
Critical thinking for the law student is essential, requiring “an attitude of reflective scepticism; an attitude that avoids oversimplification and is comfortable with complexity; an attitude of awareness and appreciation of the diversity of values” (Ogilvey 1996: fn12). Traditional legal education and training has previously most often been “antithetical to the development of a creative or critical autonomy”. (Webb 1998:141). Students on an Innocence Project however, come to recognise law “as a more complex and relational process than the law curriculum has conventionally allowed” (Webb 1998:147). The Innocence Project attempts to expand the capacity of students to think critically, and act creatively. It also demands a series of skills that are the focus of recent government initiatives: “enterprise skills”; “information literacy” and “employability skills”.
Along with demands to “widen participation” and diversify the student body, the government has stressed the need to teach all students “master skills”, regardless of discipline. The result has been initiatives to introduce “enterprise skills” across curricula, and “information literacy” for all students. Information literacy is described as the ability to recognise when information is needed, and the ability to locate, evaluate, and effectively use the required information. It could be assumed that the information literate, have learned how to learn. Information literacy then is becoming essential for all graduates, but of especial value to law students for whom the ability to demonstrate autonomy is essential:
“With information readily available to the masses at the click of a mouse, society needs people who can search, select and discriminate between what is useful and what is potentially harmful information. Society needs people who can think on their feet and who can learn from experience. To be able to learn autonomously is specifically recognised as emblematic of ‘graduateness’ in the law benchmark statement…” (Hinett 2002:10).
Law students, in an increasingly competitive employment environment, must fit with societal demands for multi-tasking and creativity. In addition:
“Law students need to express themselves both verbally and in writing, seek out information, choose appropriate courses of action based on facts, evaluate the implications of decisions and juggle a number of clients and problems at once. Today it is not just law firms but also society as a whole that requires these skills in graduates.” (Hinett 2002:10).
Enterprise skills comprise those skills identified as necessary for entrepreneurs (or intrapreneurs or social entrepreneurs), including innovation; communication; networking; creativity; problem-solving; and presentation skills. Whilst law students have not traditionally been identified as budding entrepreneurs, these “master skills” are increasingly vital to any career path, as MacFarlane (1988:534) points out:
“…without these foundations firmly established – and there is no limit to the level of sophistication to which these and other ‘master skills’ may be developed – we will continue to produce graduates who fall short of our aspirations for them…”
Indeed, it is increasingly short-sighted for law lecturers to assume a legal career path of law graduates, with many more students entering law school than can enter the profession; the diversification of law students; and with surveys of university students typically finding that over half plan to become self-employed:
“Increasingly law students are entering diverse careers, both within and outside law, in widely scattered countries. It is no longer appropriate, if indeed it ever were so, to project the typical career structure of the law graduate and seek to shape teaching around the simple goal.” (Thomas 2000:12)
However, the experience of many Project directors is that time spent on Innocence Projects can alter career aspirations of students. Many find a social justice “vocation” and become motivated to “reform” oriented, or criminal defence careers (in the US, as in the UK this can be a costly career choice if they were expecting “corporate” law salaries). This results from what directors call the “radicalisation” of law students, and the student development of a progressive mindset.(11)
Innocence Projects then, can contribute to many essential learning outcomes for students, permitting them the opportunity to develop skills within an experiential learning environment, while at the same time, they can take responsibility for their own learning and ethical development, undertaking reflective practices vital to ongoing professional development. However, Innocence Projects are not without their own challenges, and there are some clear differences between the US where they have been successful, and the UK. Some of these differences may make it more instructive to look to the Innocence Projects of Australia, where similarity with the UK is greater.
Whilst Innocence Projects have spread, there have been many false-starts, and some Innocence Projects have closed or been scaled down. However, the Innocence Network now provides extensive support for those starting a project, as well as those already operating, and there are available many experts willing to guide beginners away from common pitfalls. There are however, essential differences between law students in the US and UK,(12) and the legal system in England and Wales, which potentially pose problems. The clearest difference is the existence in the UK of a body which investigates alleged miscarriages of justice. Whilst difficulties remain with the operation of the Criminal Cases Review Commission (CCRC) (Naughton 2005), prisoners who have exhausted their appeals must apply to the CCRC to obtain a new appeal, precluding domestic students from being as involved in getting cases back through the appeal courts as US students. However, the existence of the CCRC may assist with potential “resource” problems.
Aside from what Medwed (2003:1108) calls “the innate problem of determining whether the prisoner is, in fact, innocent”, most initial concerns over establishing Innocence Projects are financial. Indeed, many Innocence Projects directors claim that their most time-consuming task is fund-raising.(13) However, US law schools tend toward having greater resources than most UK equivalents (Brayne 1990), and the small staff-student ratios can cause alarm, indeed, as Thomas (2000:37) explains: “the climate of tightening law school budgets and increasingly unattractive staff-student ratios are obstacles to the wider adoption of clinical methods in the undergraduate curriculum.” The investigation of cases too can be costly, with DNA testing often expensive (although non-DNA cases: “can linger for years, testing the patience and resolve of clinic students and faculty, and accrue significant investigation expenditures.” Medwed (2003:1107)). However, here the CCRC is beneficial, as in England and Wales, Innocence Projects can leave the more expensive and resource intensive aspects of investigations to the CCRC.
Innocence Projects also commence case investigation by obtaining and reading all trial transcripts. In England and Wales this initial task would be impossible in the overriding majority of cases, as trial transcripts are produced by a private company that demand significant monetary compensation for providing a prisoner with a transcript of their trial (though many prisoners will already have a great number of documents including the summing up of the judge etc. if they have had an appeal). Without a commitment to proper funding and staffing then, an Innocence Project may be thwarted in its efforts.(14) However, pro bono work is undergoing a resurgence of interest, with many law firms encouraging employees to partake in pro bono work, and contributing to schemes to enhance their corporate “social responsibility” credentials.
One of the greatest challenges to the staff of an Innocence Project, is to ensure that all students receive the opportunity for the learning outcomes outlined previously. This poses a problem as not every case will have make similar demands upon students, meaning that they can have mixed learning experiences. Indeed, veteran Project directors advise that students need to forewarned that most of their time will be taken up with the rather disappointing task of writing to people to inform them that the Project cannot assist them. Indeed, Medwed (2003:fn179) warns that; “some students sometimes get depressed by the work for several reasons, including the obvious guilt of many potential clients and the fact that slogging through files is not particularly glamorous”. Staff can make use of mock, or preparatory interviews and involve students in the cases of others on the Project, or in the administrative running of the Project (including fund-raising), to ensure they each get the full range of learning opportunities.
Similarly, students will rarely be able to see a conclusion to a case, with most cases carrying over a number of years. As Kruse (2002:440) explains:
“Probably the biggest challenge in involving students in active problem-solving in a project that spans several semesters or years is to provide continuity by giving students a sense of the process that has come before, and to give them meaningful input into the direction of the project after they leave.”
However, as Kerrigan (2002:1) explains from experience with the only case to date of students assisting with the overturning of criminal conviction in England and Wales (the Alex Allan case), such difficulties can be overcome:
“…here lies the advantage and, at times, the difficulty of dealing with long-running and complex cases in a clinical programme. With careful use of supervision sessions a large number of students can benefit from the experience of working on a ‘big’ case with clear potential for the introduction of wider issues about defects in the legal system and the role of lawyers. However, on the downside each student gains only a snapshot of the case….”
The experience of cases being investigated over a series of years, requires that the Innocence Project has an “institutional memory”; “so that the lessons learned in one year will be passed on in the next year.” (Kruse 2002:441).
Challenges exist for Project directors, in ensuring an equitable distribution of work and fair assessment. Whilst group-work can motivate some students, it can also give some the opportunity to rely on others:
“Peer pressure, especially the desire not to seem foolish in front of a classmate or to overburden ones co-equal, may make members of a team more motivated. Pairing students though does give each student a safety net;… shared responsibility may mean reduced responsibility.” (Medwed 2003: fn209).
Along with the normal drawbacks of scheduling and interpersonal difficulties however, there comes the opportunity for students on Projects to “teach and learn from each other” and lead to the “cross-fertilisation of experiences” (Medwed 2003:1148), assisting again with ensuring each student gains from their time on the Project regardless of the progress made on their cases.
There may also be difficulty in introducing reflection among students: “the introduction of reflection into legal education poses pedagogical, practical, and political challenges to the existing status quo, but it has the potential to transform learning for students” (Hinett 2002:54). As McNeal (2001:372) warns: “[some] students are likely to respond with groans and perhaps even outright refusal to clinical teachers’ pleas for reflection…” There also continues to be ongoing debate in the US over the proper “grading” system for such assessment, whether work on the project should attract a pass/fail, or gradated mark, indeed, experienced Project directors report having tried both systems and still not having resolved this issue.
Despite such challenges, Innocence Projects continue to spread and achieve important pedagogical aims, as well as stimulating significant legal reform, and of course, liberating innocent people from prison. Burridge (2004:1) has argued that “here in the UK we have not seized upon opportunities to keep pace with either national or international developments”, a criticism vindicated by reference to the growth of innocence projects of the US, Canada, and Australia.
This paper has sought to illustrate some of the potential educational utility of innocence projects in the UK, to highlight their role in achieving important pedagogical aims by providing insights into the “law machine” that are currently limited, and bringing innovation into the law curriculum. Such Projects are an example of particular type of law clinic, but can be adopted in any law school as part of the undergraduate law degree, (15) without becoming dominated by concerns over learning “legal skills” intended for aspiring lawyers. Undoubtedly, there are particular challenges in establishing and operating Innocence Projects, but also undoubted benefits, for students, for law schools, local communities, and society:
“It is not enough for law schools to proclaim that they teach ethics, they must also try to behave as ethical institutions… it undoubtedly begs questions of teacher competence, resource availability, and curriculum co-ordination, though I also suspect the scale of such problems is easily overestimated.” (Webb 1998:149)
As Burridge (2004:1) points out: “If disdain for legal practice in the undergraduate curriculum is replaced by reflection, analysis and informed critique of legal process, ethics and legal work, then students, society and the embattled concept ‘justice’ will be the beneficiaries.”
Pring states that the goal of a liberal legal education is to “develop the ability to reason, to think critically and to appreciate that which is worthy of being appreciated”, arguing that, ‘cultivating the intellect is intrinsically worthwhile and is perhaps the supreme human good’ (Pring 1985:184-185), with benefits to be felt by society as a whole. Similarly, Webb (1998:139) posits that; “If an education is to be liberal, it needs to be liberating”. Innocence Projects may approach satisfying many of the demands made of a liberal legal education, combining the liberation of students and the wrongly convicted. Whilst bearing in mind the demands of the professional community, university law schools have greater commitments, as Twining (1994:192) argues: “The modern law school… by and large… has been assimilated into the university. As such its commitment is, and should be to the academic ethic, that is to the advancement, stimulation and dissemination of learning, broadly conceived…”
As Johnstone (1999:9) argues, there is room for the development of a broader interpretation of legal education, transcending the traditional “vocational” and “liberal” dichotomy. Students who work on Innocence Projects benefit from developing “master” skills, as well as pre-practice “vocational” legal skills, yet can also engage in reflection while taking on responsibility for their legal, and ethical, and wider “liberal” education. Employers will undoubtedly benefit from skilled reflective graduates with a passion for justice, and a strong ethical foundation. Lawyers who have previously been exposed to the fallibility of the criminal process, must be more alert as a practitioner to flaws and as a reflective practitioner, will learn from their own mistakes more readily, for, as Roach (2003-4:369) asserts: the legal profession has a professional obligation to learn from its mistakes at every possible opportunity.’ There are also obligations on the part of law schools, as Thomas (2000:47) outlines:
“Law lecturing should reflect the values of democracy, participation, justice, fairness and equal opportunity to which law itself aspires. Those law teachers whose only teaching tool is the traditional lecture declaimed in tedious tones are not just serving students badly. They are also purveying a concept of law that may mouth principle but the practice of which is predicated on submissive acceptance of its doctrines. If law is to be a dynamic process reflective of society’s instinct for fair dealing and open governance, then law learning has to adopt appropriate methods for its study.”
Indeed, one of the greatest assets of the Innocence Project espoused by the Director of the Griffith University Project, is its “dynamism”; “you never really know what is going to happen during the course”, forcing teacher and student alike to be “on the ball” to adapt and work with developments, surely an antidote to ennui materialising during “traditional” law courses and programmes (for staff and students alike).
There are clear resource issues for implementing an Innocence Project, but if law educationalists are to respond to the many demands being made of them, and take seriously the responsibility of producing proficient, and ethical lawyers with a lifelong commitment to pro bono work, and the pursuit of justice, then such innovation must be embraced. Students and staff alike can gain satisfaction from using their time at university to help those in most dire need of legal assistance; “merely participating in an innocence project and striving toward the exoneration of a wrongfully convicted prisoner has a certain intrinsic value: a chance for a student to associate themselves with a socially desirable objective, and accordingly, derive some personal fulfilment from that association.” (Medwed 2003:1135) Whether Innocence Projects are to be successful domestically, what can be learnt from the spread of such Projects internationally, is that it is possible, and beneficial, to resist the tendency of law schools that Toddington (1996:74) describes, “to sprinkle moral and political commitment over the top of [legal facts] like so much icing sugar”.
While the UK does not have a death row, and there does exist a body that goes some way to addressing the problem of wrongful conviction, there are still clear demands upon the legal education community to address the changing needs of students, the legal profession, and the wider community. Law schools can connect with their local community and engage in some vital work, not necessarily just focusing upon those imprisoned for serious crimes, but also those convicted in the magistrates courts, where legal aid has been ruled not to be in the “interests of justice”. As Naughton (2003) demonstrates, miscarriages of justice are not limited, and their serious consequences not restricted to, those convicted of serious offences.
Bradney claimed that the academic doctrinal project has entered “its final death throes”. (Bradney 1998:71) He posits that law schools have undergone radical change, infusing legal scholarship with approaches from the social sciences and humanities, providing students with a truly liberal legal education as well as giving the law school a voice in intellectual debates. (Bradney 1998) Such wider engagement is in line with Dearing’s view of higher education as having a major role “in shaping a democratic, civilised, and inclusive society”. (Dearing 1997: para 5.11) Having already made such an evolutionary transition in taking “socio-legal” perspectives, perhaps now the modern law school is ready to take a further step, looking to the international “innocence movement”, and adopting Innocence Projects as a way of providing a truly “liberating” liberal education, (with vocational training as a bonus). As Brayne (1990) may conclude, we may have less to fear and more to gain than we realise.
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(1) Spread of Innocence Projects seen as 'new civil rights movement' 06/06/2002 Dallas Morning News /Associated Press available at http://www.truthinjustice.org/ipspread.htm . For discussion of whether the US ‘Innocence movement’ does represent a new civil rights movement, see Schehr, R. ‘The New Civil Rights Movement’ paper presented at SLSA Annual Conference, Glasgow, April 2004.
(2) See: <http://www.centurionministries.org> accessed 20 October 2004.
(3) http://www.innocenceproject.org.
A book published in 2001 was based upon a number of their early cases: Sheck,
B., Neufeld, P. & J. Dwyer. (2001) Actual Innocence: Five Days to Execution and other Dispatches from the Wrongly
Convicted New York: Signet Publications.
(4) For example, see the Northwestern Center of Wrongful Convictions in Chicago: <http://www.law.northwestern.edu/wrongfulconvictions> accessed 5 January 2005.
(5) See: <http://www.gu.edu.au/school/law/innocence/content.html>
accessed
(6) See <http://www.handbook.uts.edu.au/subjects/76524.html>
accessed
(7) Most projects have detailed questionnaires that inmates have to complete before their case is taken up. Examples of these can be found on various Innocence Project websites.
(9) This discussion is based upon visits to the US Innocence Network National Conference, and time spent at three of the Australian Innocence Projects, as well as educational theory.
(10) Past-student quoted in Griffith University 2003-04 Law Courses Prospectus.
(11) This of course may be peculiar to the US where law students are graduates, typically wealthier and most often Conservative upon starting law school. However, students on Australian Projects have also undergone similar transformations and they are more similar to UK students.
(12) For instance, students are on average four years older in the US as they are all graduates, and because of the costs involved and the postgraduate nature of law degrees, it would be highly unusual for anyone to attend law school without wanting to be a lawyer.
(13) Particularly as they have no equivalent ‘legal aid’ system for indigent prisoners and costs do not follow in the event of losing in litigation.
(14) Financial support for the Innocence Projects at Bristol and Cardiff have come from Personal Development Planning funds, while the Innocence Project at the University of Leeds has had significant funding from the White Rose Centre for Excellence in Teaching and Learning in Enterprise. Each project also benefits from pro bono input from legal professionals, and the Leeds Innocence Project has also received funding for 2006-2008 from the City Solicitors Education Trust, to enable the Director to be allocated teaching time to work on the Project. So, resources can become available if imaginative methods are employed, which can lessen any resistance from those in charge of the law school budget, although there has been little or no resistance experienced at the 3 universities presently operating Innocence Projects and other universities are actively seeking to establish them during 2006/07.
(15) Indeed, the University of Bristol Innocence Project operates separately from the law clinic, and the University of Leeds Innocence Project operates with no law clinic present. At the Student Law Office at the University of Northumbria they accept criminal cases as part of their normal caseload without professing to have an ‘Innocence Project’.
