A miscarriage of justice occurs when an unfair outcome occurs in a criminal or civil proceeding. Examples of miscarriage of justice include conviction of an innocent person, error of impunity, sentencing disparity, and delayed justice.
Innocent people have sometimes ended up in prison for years before their conviction has eventually been overturned. They may be exonerated if new evidence comes to light or it is determined that the police or prosecutor committed some kind of misconduct at the original trial. In some jurisdictions this leads to the payment of compensation.Compensating The Wrongly Convicted , Innocence Project
Academic studies have found that the main factors contributing to miscarriages of justice are: eyewitness misidentification; faulty forensic analysis; false confessions by vulnerable suspects; perjury and lies stated by witnesses; misconduct by police, prosecutors or judges; and/or ineffective assistance of counsel (e.g., inadequate defense strategies by the defendant's or respondent's legal team).
Prevalence There are two main methods for estimating the prevalence of wrongful convictions, by examining cases in which an exoneration has occurred, or by analyzing self-reports of false confessions.
Exoneration The first is the number of exonerations where the guilty verdict has been vacated or annulled by a judge or higher court after new evidence has been brought forward proving the "guilty" person is in fact innocent. Since 1989, the Innocence Project has helped overturn 375 convictions of American prisoners with updated DNA evidence;DNA Exonerations in the United States, Innocence Project however, DNA testing occurs in only 5 to 10% of all criminal cases, and exonerations achieved by the Innocence Project are limited to murder and rape cases. This raises the possibility that there may be many more wrongful convictions for which there is no evidence available to exonerate the defendant. Studies cited by the Innocence Project estimate that between 2.3% and 5% of all prisoners in the U.S. are innocent;How many Innocent people are there in prison, The Innocence Project, Wayback machine however, a 2017 study looking at convictions in the state of Virginia during the 1970s and 1980s and matching them to later DNA analysis estimates a rate of wrongful conviction at 11.6%. A 2014 study published in Proceedings of the National Academy of Sciences made a conservative estimate that 4.1% of inmates awaiting execution on death row in the United States are innocent.
Self-report The second method for estimating wrongful convictions involves self-report. Researchers ask prisoners whether they have ever confessed to a crime which they did not commit. Self-report allows examination of any and all crimes where wrongful conviction may have occurred, not just murder and rape cases where DNA is available. Two Icelandic studies based on self-report conducted ten years apart found the rates of false confession to be 12.2% and 24.4%, respectively. These figures provide a proxy for miscarriages of justice because erroneous confessions are likely to lead to wrongful convictions. A 2021 Scottish study found the rate of self-reported false confessions among a group of inmates in one prison was 33.4%.
Up to 10,000 people may be wrongfully convicted of serious crimes in the United States each year., Criminal Law Bulletin 48(2) 221—279 According to Professor Boaz Sangero of the College of Law and Business in Ramat Gan, most wrongful convictions in Israel relate to less serious crimes than major felonies such as rape and murder, as judicial systems are less careful in dealing with those cases.
Contributing factors Academics believe that six main factors contribute to miscarriages of justice.False Confessions: Causes, Consequences, and Implications, Richard A. Leo, Journal of the American Academy of Psychiatry and the Law Online September 2009, 37 (3) 332–343; These include eyewitness misidentification, faulty forensic analysis, false confessions by vulnerable suspects, perjury and lies told by witnesses, misconduct by police, prosecutors or judges and inadequate defense strategies put forward by the defendant's legal team.Duncan, Colby (2019) "Justifying Justice: Six Factors of Wrongful Convictions and Their Solutions"
Unreliability of eyewitness testimony Eyewitness identifications are notoriously unreliable, contributing to 70% of wrongful convictions. Starting in the 1970s, psychologists studying memory formation and retention found that the way police lineups are conducted can alter an eyewitness's memory of the suspect and this often leads to misidentification. Witnesses also have considerable difficulty making accurate identifications with suspects from different ethnic groups such that "the rate of mistaken identification is significantly higher than most people tend to believe".Ralph Slovenko, Testifying with Confidence, J Am Acad Psychiatry Law, Vol. 27, No. 1, 1999 Elizabeth Loftus, a leading researcher in the field, says memory is so unreliable "the result can be a highly confident witness testifying in a persuasive manner at trial about a detail that is completely false".
Forensic mistakes Contamination Wrongful convictions can also occur when items which become evidence at crime scenes become contaminated in the process of packaging, collection and transportation to a secured facility or laboratory. Contamination can be introduced unintentionally by material that was not present when the crime was committed by anyone entering the crime scene after the event – by uninvolved witnesses who may become suspects, and by emergency responders, fire fighters, police officers and crime scene investigators themselves. If proper protocols are not followed, evidence can also be contaminated when it is being analyzed or stored. A miscarriage of justice can occur when procedures to prevent contamination are not carried out carefully and accurately.
Faulty analysis The Innocence Project says 44% of wrongful convictions are the result of faulty forensic analysis. This occurs when forensic experts inadvertently or deliberately misrepresent the significance, validity or reliability of scientific evidence. Over the years, misrepresentations have been made in the arenas of serological analysis, microscopic hair comparison, and the analysis of bite marks, shoe prints, soil, fiber, and fingerprints.
Overconfident experts Overly confident testimony by expert witnesses can also lead to miscarriages of justice. The credibility of expert witnesses depends on numerous factors – in particular, their credentials, personal likability and self-confidence which all impact on how believable they are. The confidence with which experts present their evidence has also been noted to influence jurors, who tend to assume that a witness who is anxious or nervous is lying. The manner in which experts testify may have a greater impact on judges and lawyers who prefer experts who provide clear, unequivocal conclusions.
The credentials and reputation of the expert also have a significant impact on juries. For example, Charles Smith was head of the Ontario Pediatric Forensic Pathology Unit from 1982 and the most highly regarded specialist in his field.Charles Smith scandal: How a mother wrongly accused of killing her son fought back. CBC Radio, January 12, 2017 His testimony led to the convictions of thirteen women whose children died in unexplained circumstance before it came to light that he had "a thing against people who hurt children", and "was on a crusade and acted more like a prosecutor" than a pathologist. An inquiry into his conduct concluded in October 2008 that Smith "actively misled" his superiors, "made false and misleading statements" in court and exaggerated his expertise in trials.Dr. Charles Smith: The man behind the public inquiry. Cbc.ca. CBC News, 8 December 2009.
False confessions
The possibility that innocent people would admit to a crime they did not commit seems unlikely – and yet this occurs so often, the Innocence Project found false confessions contribute to approximately 25% of wrongful convictions in murder and rape cases.Research Resources, Innocence Project. Certain suspects are more vulnerable to making a false confession under police pressure. This includes individuals who are intellectually impaired, and those who suffer from mental illness. Saul Kassin, a leading expert on false confessions, says that young people are also particularly vulnerable to confessing, especially when stressed, tired, or traumatized.This psychologist explains why people confess to crimes they didn't commit, Science 13 June 2019
Coercive interrogation techniques
Police often use coercive manipulation techniques when conducting interrogations in hopes of obtaining a confession. In the United States, one of these is known as the Reid Technique after the officer who developed it, John Reid. Introduced in the 1940s and 50s, the strategy relies on deception, coercion and aggressive confrontation to secure confessions. It became the leading interrogation method used by law enforcement throughout the United States and has led to many confessions by innocent people.The Seismic Change in Police Interrogations, Marshall Project, 3 July 2017. As of 2014, this technique was still popular with police interrogators even though the strategy produces less information from suspects, provides fewer true confessions and more false confessions than less confrontational interviewing techniques.
Perjury and false accusations Witnesses in police investigations may lie for a variety of reasons including: personal ill-will towards the defendant, the desire to be paid, the desire to get a deal from prosecutors or police, or an effort to deflect attention from a person's own involvement in a crime. An innocent person is more likely to be convicted when one or more witnesses have an incentive to testify, and those incentives are not disclosed to the jury.Causes of Wrongful Conviction, Western Michigan University According to the National Registry of Exonerations, 57% of cases where the convicted person was eventually exonerated involves perjury or false accusations.Perjury, Innocence Project New Orleans.
Prosecutorial misconduct
This occurs in numerous ways including the concealment or destruction of exculpatory evidence; the failure to disclose exculpatory evidence to the defence; the failure to reveal that certain witnesses have been paid to testify; and the planting of incriminating evidence. An Innocence Project study found that 25% of DNA exonerations involved testimony that was known to be false by the police and another 11% involved the undisclosed use of coerced witness testimony. In other words, over one third of these wrongful convictions involved prosecutorial misconduct.
Biased justice
Confirmation bias is a psychological phenomenon whereby people tend to seek and interpret information in ways that support existing beliefs. Two inter-related mechanisms tend to operate: it begins with a biased interpretation of whatever information is available, followed by selectively searching for information which supports this interpretation.Motivational Sources of Confirmation Bias in Criminal Investigations: The Need for Cognitive Closure, J. Investig. Psych. Offender Profil. 2: 43–63 (2005) With this, any information that contradicts preexisting beliefs is more likely to be ignored, dismissed as false, or twisted to fit an agenda. In police investigations, this comes into play when detectives identify a suspect early in an investigation, come to believe he or she is guilty, and then ignore or downplay other evidence that points to someone else or doesn't fit their hypothesis about what occurred.