"Miscarriage of justice" is sometimes used to describe any
wrongful conviction, even when the defendant may be guilty, for example
in reference to a conviction reached as the result of an unfair or
disputed trial. While a miscarriage of justice is a Type I error for falsely identifying culpability, an error of impunity would be a Type II error
of failing to find a culpable person guilty. However, the term
"miscarriage of justice" is often used to describe the latter type as
well. With capital punishment
decreasing, the expression has acquired an extended meaning, namely any
conviction for a crime not committed by the convicted person.
Wrongful convictions are frequently cited by death penalty opponents as cause to eliminate death penalties to avoid executing innocent persons. In recent years, DNA evidence has been used to clear many people falsely convicted.
The term travesty of justice is sometimes used for a gross, deliberate miscarriage of justice. Show trials (not in the sense of high publicity, but in the sense of lack of regard to the actual legal procedure and fairness), due to their character, often lead to such travesties.
The concept of miscarriage of justice has important implications for standard of review, in that an appellate court will often only exercise its discretion to correct a plain error when a miscarriage of justice (or "manifest injustice") would otherwise occur.
The Scandinavian languages (viz. Danish, Norwegian and Swedish) have a word, the Swedish variant of which is justitiemord, which literally translates as "justice murder". Slavic languages use a different word (e.g., justičná vražda in Slovak, justiční vražda in Czech), but it is used for judicial murder, while miscarriage of justice is "justiční omyl" in Czech, implying an error of the justice system, not a deliberate manipulation. The term was originally used for cases where the accused was convicted, executed, and later cleared after death.
Wrongful convictions are frequently cited by death penalty opponents as cause to eliminate death penalties to avoid executing innocent persons. In recent years, DNA evidence has been used to clear many people falsely convicted.
The term travesty of justice is sometimes used for a gross, deliberate miscarriage of justice. Show trials (not in the sense of high publicity, but in the sense of lack of regard to the actual legal procedure and fairness), due to their character, often lead to such travesties.
The concept of miscarriage of justice has important implications for standard of review, in that an appellate court will often only exercise its discretion to correct a plain error when a miscarriage of justice (or "manifest injustice") would otherwise occur.
The Scandinavian languages (viz. Danish, Norwegian and Swedish) have a word, the Swedish variant of which is justitiemord, which literally translates as "justice murder". Slavic languages use a different word (e.g., justičná vražda in Slovak, justiční vražda in Czech), but it is used for judicial murder, while miscarriage of justice is "justiční omyl" in Czech, implying an error of the justice system, not a deliberate manipulation. The term was originally used for cases where the accused was convicted, executed, and later cleared after death.
General issues
Causes of miscarriages of justice include:
- Plea bargains that offer incentives for the innocent to plead guilty, sometimes called an innocent prisoner's dilemma
- Confirmation bias on the part of investigators
- Withholding or destruction of evidence by police or prosecution
- Fabrication of evidence or outright perjury by police (see testilying), or prosecution witnesses (e.g., Charles Randal Smith)
- Biased editing of evidence
- Prejudice against the class of people to which the defendant belongs
- Misidentification of the perpetrator by witnesses and/or victims
- Overestimation/underestimation of the evidential value of expert testimony
- Contaminated evidence
- Faulty forensic tests
- False confessions due to police pressure or psychological weakness
- Misdirection of a jury by a judge during trial
- Perjured evidence by the real guilty party or their accomplices (frameup)
- Perjured evidence by the alleged victim or their accomplices
- Conspiracy between court of appeal judges and prosecutors to uphold conviction of the innocent
- Fraudulent conduct by a judge: Judicial Misconduct
A risk of miscarriages of justice is one of the main arguments
against the death penalty. Where condemned persons are executed promptly
after conviction, the most significant effect of a miscarriage of
justice is irreversible. Wrongly executed people nevertheless
occasionally receive posthumous pardons—which essentially void
the conviction—or have their convictions quashed. Many death penalty
states hold condemned persons for ten or more years before execution, so
that any new evidence that might acquit them (or, at least, provide reasonable doubt) will have had time to surface.
Even when a wrongly convicted person is not executed, years in
prison can have a substantial, irreversible effect on the person and
their family. The risk of miscarriage of justice is therefore also an
argument against long sentences, like a life sentence, and cruel prison
conditions.
Rate of occurrence
Various studies estimate that in the United States, between 2.3 and 5% of all prisoners are innocent. One study estimated that up to 10,000 people may be wrongfully convicted of serious crimes each year.
A 2014 study estimated that 4.1% of inmates awaiting execution on
death row in the United States are innocent, and that at least 340
innocent people may have been executed since 1973.
According to Professor Boaz Sangero of the College of Law and Business in Ramat Gan
in Israel, most wrongful convictions are for crimes less serious than
major felonies such as rape and murder, as judicial systems are less
careful in dealing with those cases.
Cultural consequences
Wrongful
convictions appear at first to be "rightful" arrests and subsequent
convictions, and also include a public statement about a particular
crime having occurred, as well as a particular individual or individuals
having committed that crime. If the conviction turns out to be a
miscarriage of justice, then one or both of these statements is
ultimately deemed to be false.
During this time between the miscarriage of justice and its correction,
the public holds false beliefs about the occurrence of a crime, the
perpetrator of a crime, or both. While the public audience of a
miscarriage of justice certainly varies, they may in some cases be as
large as an entire nation or multitude of nations.
In cases where a large-scale audience is unknowingly witness to a
miscarriage of justice, the news-consuming public may develop false
beliefs about the nature of crime itself. It may also cause the public
to falsely believe that certain types of crime exist, or that certain
types of people tend to commit these crimes, or that certain crimes are
more commonly prevalent than they actually are. Thus, wrongful
convictions can ultimately mold a society's popular beliefs about crime.
Because our understanding of crime is socially constructed, it has been
shaped by many factors other than its actual occurrence.
Mass media may also be faulted for distorting the public
perception of crime by over-representing certain races and genders as
criminals and victims, and for highlighting more sensational and
invigorating types of crimes as being more newsworthy. The way a media
presents crime-related issues may have an influence not only on a
society's fear of crime but also on its beliefs about the causes of
criminal behavior and desirability of one or another approach to crime
control.
Ultimately, this may have a significant impact on critical public
beliefs about emerging forms of crime such as cybercrime, global crime,
and terrorism.
There are unfavorable psychological effects, even in the absence
of any public knowledge. In an experiment, participants significantly
reduced their pro-social behavior after being wrongfully sanctioned. As a
consequence there were negative effects for the entire group. The extent of wrongful sanctions varies between societies.
Cases in specific countries
Canada
In 1959, 14-year-old Steven Truscott was convicted of raping and murdering a 12-year-old girl. Originally sentenced to death by hanging,
his sentence was commuted to life imprisonment. He was released on
parole in 1969, and was freed from his parole restrictions in 1974. In
2007, the Ontario Court of Appeal overturned Truscott's conviction, based on a reexamination of forensic evidence. The government of Ontario awarded him $6.5 million in compensation.
In 1972, Donald Marshall Jr., a Mi'kmaq man, was wrongly convicted of murder. Marshall spent 11 years in jail before being acquitted in 1983.
The case inspired a number of questions about the fairness of the
Canadian justice system, especially given that Marshall was an Aboriginal: as the Canadian Broadcasting Corporation put it, "The name Donald Marshall is almost synonymous with 'wrongful conviction' and the fight for native justice in Canada." Marshall received a lifetime pension of $1.5 million in compensation and his conviction resulted in changes to the Canada Evidence Act so that any evidence obtained by the prosecution must be presented to the defence on disclosure.
In 1970, David Milgaard was wrongfully convicted for the rape and murder of Gail Miller. He was released in 1992 and compensated $10 million by the Saskatchewan government after having spent 23 years in prison. After being tied to it by DNA evidence, serial rapist Larry Fisher was convicted of the murder in 1999.
In 1992, Guy Paul Morin
was convicted of the 1984 rape and murder of an 8-year-old girl and was
sentenced to life imprisonment. In 1995, new testing of DNA evidence
showed Morin could not have been the murderer, and the Ontario Court of
Appeal overturned his conviction.
The case has been described as "a compendium of official error – from
inaccurate eyewitness testimony and police tunnel vision, to scientific
bungling and the suppression of evidence." Morin received $1.25 million in compensation from the Ontario government.
Italy
Enzo Tortora,
a TV host on national RAI television, was accused of being a member of
the Camorra and drug trafficking. He was arrested in 1983, and sentenced
to ten years in jail in 1985, but acquitted of all charges on appeal in
1986.
Raffaele Sollecito and American Amanda Knox were sentenced to 26 years imprisonment for the 2007 Murder of Meredith Kercher.
They were released in 2011 after an appeal court found there was no
credible evidence against them. Petty burglar Rudy Guede has been
convicted of murder and sexual assault in connection with the death of
Ms. Kercher.
The Netherlands
The
Schiedammerpark murder case, as well as the similarly overturned case
of the Putten murder, led to the installation of the "Posthumus I
committee", which analyzed what had gone wrong in the Schiedammerpark
Murder case, and came to the conclusion that confirmation bias
led the police to ignore and misinterpret scientific evidence (DNA).
Subsequently, the so-called Posthumus II committee investigated whether
other such cases might have occurred. The committee received 25
applications from concerned and involved scientists, and decided to
consider three of them further: the Lucia de Berk case, the Ina Post case, and the Enschede incest case. In these three cases, independent researchers (professors Wagenaar,
van Koppen, Israëls, Crombag, and Derksen) claim confirmation bias and
misuse of complex scientific evidence led to miscarriages of justice.
Norway
Norwegian police, courts, and prison authorities have been criticized and convicted on several occasions by the European Court of Human Rights for breaking the principle of innocent until proven guilty.
However, the maximum penalty in Norway is normally no longer than 21
years. Thereby, most of the victims have been acquitted after their
release from prison.
Poland
On
December 31, 1996 in Miłoszyce, Poland, a 15-year-old girl was brutally
raped and murdered. Tomasz Komenda, then 21, was arrested. He pleaded
guilty and was sentenced to 25 years imprisonment. Komenda was regularly
abused by fellow prisoners and guards, he tried to commit suicide 3
times. In 2018 when new evidence came out, Komenda was paroled and in
May 2018 his conviction was overturned and Komenda was officially
exonerated by the Supreme Court of Poland. He and his barrister stated, that they would demand 18 000 000 PLN compensation.
Spain
The Constitution of Spain guarantees compensation in cases of miscarriage of justice.
United Kingdom
In the United Kingdom a jailed person, whose conviction is quashed, might be paid compensation
for the time they were incarcerated. This is currently limited by
statute to a maximum sum of £1,000,000 for those who have been
incarcerated for more than ten years and £500,000 for any other cases, with deductions for the cost of food and prison cell during that time. See also Overturned convictions in the United Kingdom.
Richard Foster, the Chairman of the Criminal Cases Review Commission
(CCRC), reported in October 2018 that the single biggest cause of
miscarriage of justice was the failure to disclose vital evidence.
England, Wales and Northern Ireland
Until
2005, the parole system assumed all convicted persons were guilty, and
poorly handled those who were not. To be paroled, a convicted person had
to sign a document in which, among other things, they confessed to the
crime for which they were convicted. Someone who refused to sign this
declaration spent longer in jail than someone who signed it. Some
wrongly convicted people, such as the Birmingham Six, were refused parole for this reason. In 2005 the system changed, and began to parole prisoners who never admitted guilt.
English law has no official means of correcting a "perverse"
verdict (conviction of a defendant on the basis of insufficient
evidence). Appeals are based exclusively on new evidence or errors by
the judge or prosecution (but not the defence), or jury irregularities. A
reversal occurred, however, in the 1930s when William Herbert Wallace was exonerated of the murder of his wife. There is no right to a trial without
jury (except during the troubles in Northern Ireland or in the case
where there is a significant risk of jury-tampering, such as organised
crime cases, when a judge or judges presided without a jury).
During the early 1990s, a series of high-profile cases turned out
to be miscarriages of justice. Many resulted from police fabricating
evidence to convict people they thought were guilty, or simply to get a
high conviction rate. The West Midlands Serious Crime Squad became notorious for such practices, and was disbanded in 1989. In 1997 the Criminal Cases Review Commission
was established specifically to examine possible miscarriages of
justice. However, it still requires either strong new evidence of
innocence, or new proof of a legal error by the judge or prosecution.
For example, merely insisting you are innocent and the jury made an
error, or stating there was not enough evidence to prove guilt, is not
enough. It is not possible to question the jury's decision or query on
what matters it was based. The waiting list for cases to be considered
for review is at least two years on average.
In 2002, the NI Court of Appeal made an exception to who could avail of the right to a fair trial in R v Walsh: "...
if a defendant has been denied a fair trial it will almost be
inevitable that the conviction will be regarded unsafe, the present case
in our view constitutes an exception to the general rule. ... the
conviction is to be regarded as safe, even if a breach of Article 6(1)
were held to have occurred in the present case."
Scotland
The Criminal Appeal (Scotland) Act 1927 increased the jurisdiction of the Scottish Court of Criminal Appeal following the miscarriage of justice surrounding the Trial of Oscar Slater.
Reflecting Scotland's own legal system, which differs from that of the rest of the United Kingdom, the Scottish Criminal Cases Review Commission
(SCCRC) was established in April 1999. All cases accepted by the SCCRC
are subjected to a robust and thoroughly impartial review before a
decision on whether or not to refer to the High Court of Justiciary is taken.
Gravestone of George Johnson who was unjustly hanged in Arizona.
United States
In June 2012, the National Registry of Exonerations,
a joint project of the University of Michigan Law School and
Northwestern University Law School, initially reported 873 individual
exonerations in the U.S. from January 1989 through February 2012; the
report called this number "tiny" in a country with 2.3 million people in prisons and jails, but asserted that there are far more false convictions than exonerations.
By 2015, the number of individual exonerations was reported as 1,733,
with 2015 having the highest annual number of exonerations since 1989.
In the case of Joseph Roger O'Dell III, executed in Virginia in
1997 for a rape and murder, a prosecuting attorney bluntly argued in
court in 1998 that if posthumous DNA results exonerated O'Dell, "it
would be shouted from the rooftops that ... Virginia executed an
innocent man." The state prevailed, and the evidence was destroyed.
In 2013, in Massachusetts,
a chemist admitted to tampering with evidence and falsifying results
regarding over 21,000 drug convictions from 2004 to 2013 by not
undertaking tests and stating untested results were positive for illegal
drugs.
At least 21 states in the US do not offer compensation for wrongful imprisonment.
