Miscarriage of justice


A miscarriage of justice, also known as a failure of justice, occurs when a person is convicted and punished for a crime that they did not commit. It is seldom used as a legal defense in criminal and deportation proceedings. The term also applies to errors in the other direction—"errors of impunity", or to any clearly unjust outcome in any civil case. Every "miscarriage of justice" in turn is a "manifest injustice." Most criminal justice systems have some means to overturn or quash a wrongful conviction, but this is often difficult to achieve. In some instances a wrongful conviction is not overturned for several decades, or until after the innocent person has been executed, released from custody, or has died.

Terminology

"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.
The term is sometimes used for a gross, deliberate miscarriage of justice. Show trials , due to their character, often lead to such travesties.
The Scandinavian languages and Finnish have a word, the Swedish variant of which is justitiemord, which literally translates as "justice murder". Slavic languages use a different word, 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

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 would otherwise occur. In recent years, DNA evidence has been used to clear many people falsely convicted.
The risk of miscarriages of justice is often cited as a cause to eliminate the death penalty. When condemned persons are executed before they are determined to have been wrongly convicted, the effect of that miscarriage of justice is irreversible. Wrongly executed people nevertheless occasionally receive posthumous pardons—which essentially void the conviction—or have their convictions quashed.
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.
Causes of miscarriages of justice include:
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.

Legal rights and protections

The Netherlands

In response to two overturned cases, the Schiedammerpark murder case and the Putten murder, the Netherlands created the "Posthumus I committee" which analyzed what had gone wrong in the Schiedammerpark Murder case. The committee concluded that confirmation bias led the police to ignore and misinterpret scientific evidence, specifically DNA. Subsequently, the Posthumus II committee investigated whether injustice occurred in similar cases. The committee received 25 applications from concerned and involved scientists and selected three for further investigation: the Lucia de Berk case, the Ina Post case, and the Enschede incest case. In those three cases, independent researchers concluded that confirmation bias and misuse of complex scientific evidence led to miscarriages of justice.

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 :Category:Overturned convictions in the United Kingdom|Overturned convictions in the United Kingdom.
Richard Foster, the Chairman of the Criminal Cases Review Commission, 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. Appeals are based exclusively on new evidence or errors by the judge or prosecution, 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.
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 were held to have occurred in the present case."

Scotland

The Criminal Appeal 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 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.
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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. By 2019, the number had risen to 1,934 individuals. 20 individuals have been exonerated while on death row due to DNA evidence.
At least 21 states in the US do not offer compensation for wrongful imprisonment.
The Innocence Project has estimated that between 2.3 percent and 5 percent of all US prisoners are innocent. With the number of incarcerated Americans being approximately 2.4 million, by that estimate as many as 120,000 people may be incarcerated as a result of wrongful conviction. However, other researchers have suggested that the wrongful conviction rate is much lower, between 0.125% and 0.5%.

Specific cases