Miscarriage of justice

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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.[1] It is seldom used as a legal defense in criminal and deportation proceedings.[2][3] 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.


"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.[4] 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 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 Scandinavian languages (viz. Danish, Norwegian and Swedish) and Finnish 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[edit]

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. 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:[5]

Rate of occurrence[edit]

Various studies estimate that in the United States, between 2.3 and 5% of all prisoners are innocent.[6] A study looking at 1970s and 1980s convictions in Virginia and matching them to later DNA analysis estimated a higher rate of wrongful conviction, at 11.6% of such cases.[7] One study estimated that up to 10,000 people may be wrongfully convicted of serious crimes each year.[8] 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, and that at least 340 innocent people may have been executed since 1973.[9][10]

According to Professor Boaz Sangero of the College of Law and Business in Ramat Gan, most wrongful convictions in Israel are for crimes less serious than major felonies such as rape and murder, as judicial systems are less careful in dealing with those cases.[11]


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.[12] 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.[13]

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.[14] Ultimately, this may have a significant impact on critical public beliefs about emerging forms of crime such as cybercrime, global crime, and terrorism.[15]

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.[16] The extent of wrongful sanctions varies between societies.[17]

When a crime occurs and the wrong person is convicted for it, the actual perpetrator goes free and often goes on to commit additional crimes, including hundreds of cases of violent crime.[18] A 2019 study estimated that "the wrong‐person wrongful convictions that occur annually [in the United States] may lead to more than 41,000 additional crimes".[19]

By country[edit]


A series of wrongful convictions uncovered in the 2010s has undermined public trust in the Chinese justice system.[20][21][22]

The Netherlands[edit]

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 (professors Wagenaar, van Koppen, Israëls, Crombag, and Derksen) concluded that confirmation bias and misuse of complex scientific evidence led to miscarriages of justice.


The Constitution of Spain guarantees compensation in cases of miscarriage of justice.

United Kingdom[edit]

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,[23] with deductions for the cost of food and prison cell during that time.[24] 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.[25]

England, Wales and Northern Ireland[edit]

Paddy Hill from the Birmingham Six in 2015. He is seen here addressing an audience as to his advocacy in fighting miscarriages of justice

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[26] 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.[citation needed]

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."[27] (See Christy Walsh (Case).)


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.

United States[edit]

Gravestone of George Johnson who was unjustly hanged in Arizona.

In June 2012, the National Registry of Exonerations, a joint project of the University of Michigan Law School and Northwestern University Pritzker School of Law, 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.[28] By 2015, the number of individual exonerations was reported as 1,733, with 2015 having the highest annual number of exonerations since 1989.[29] By 2019, the number had risen to 1,934 individuals.[30] 20 individuals have been exonerated while on death row due to DNA evidence.[30]

According to a 2020 report by the National Registry of Exonerations, official misconduct contributed to 54% of all wrong convictions. The study only counted misconduct when it directly contributed to the convictions, such as the generation of false evidence or concealment of evidence of innocence.[31]

At least 21 states in the US do not offer compensation for wrongful imprisonment.[32][33]

The Innocence Project works to exonerate people in the United States who have been wrongfully convicted of crime. It 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.[34]

Research into the issue of wrongful convictions have led to the use of methods to avoid wrongful convictions, such as double-blind eyewitness identification.[35] Leading causes of wrongful convictions in the United Statse include snitches[36] and unscientific forensics.[37][38] Other causes include police and prosecutorial misconduct.[39][40]

See also[edit]

Specific cases[edit]


  1. ^ Garner, Bryan A. (June 25, 2009). miscarriage of justice (9th ed.). Black's Law Dictionary. p. 1088. ISBN 978-0-314-19949-2. Retrieved November 5, 2018. A grossly unfair outcome in a judicial proceeding, as when a defendant is convicted despite a lack of evidence on an essential element of the crime. — Also termed a failure of justice.
  2. ^ See generally United States v. Olano, 507 U.S. 725, 736 (1993) ("In our collateral review jurisprudence, the term 'miscarriage of justice' means that the defendant is actually innocent.... The court of appeals should no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant....") (citations omitted); Henderson v. United States, 568 U.S. 266 (2013); Davis v. United States, 417 U.S. 333, 346-47 (1974) ("There can be no room for doubt that such a circumstance 'inherently results in a complete miscarriage of justice' and 'present[s] exceptional circumstances' that justify collateral relief...."); see also Satterfield v. Dist. Att'y of Phila., 872 F.3d 152, 164 (3d Cir. 2017) ("The fact that ... proceeding ended a decade ago should not preclude him from obtaining relief under Rule 60(b) if the court concludes that he has raised a colorable claim that he meets this threshold actual-innocence standard ...."); Herring v. United States, 424 F.3d 384, 386-87 (3d Cir. 2005); Luna v. Bell, 887 F.3d 290, 294 (6th Cir. 2018); United States v. Handy, ___ F.3d ___, ___, No. 18-3086, p.5-6 (10th Cir. July 18, 2018).
  3. ^ Pacheco-Miranda v. Sessions, No. 14-70296 (9th Cir. Aug. 11, 2017); Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306 (5th Cir. 2017); see also In re Wagner Aneudis Martinez, A043 447 800 (BIA Jan. 12, 2016); In re Vikramjeet Sidhu, A044 238 062 (BIA Nov. 30, 2011); accord Matter of G-N-C-, 22 I&N Dec. 281, 285 (BIA 1998) (en banc) ("Finally, we note that an alien may collaterally attack a final order of exclusion or deportation in a subsequent proceeding only upon a showing that the prior order resulted in a gross miscarriage of justice."); Matter of Malone, 11 I&N Dec. 730 (BIA 1966); McLeod v. Peterson, 283 F.2d 180, 183-84 (3d Cir. 1960).
  4. ^ "Miscarriage of Justice Law and Legal Definition". definitions.uslegal.com. Retrieved November 5, 2018. The term 'miscarriage of justice' refers to a legal act or verdict that is clearly mistaken, unfair, or improper. Primarily, a miscarriage of justice is the conviction and punishment of a person for a crime they did not commit.
  5. ^ Sangero, Boaz (2016). Safety from False Convictions. United States: CreateSpace. ISBN 978-1536823738.
  6. ^ "How many innocent people are there in prison?". The Innocence Project. Archived from the original on November 10, 2014. Retrieved September 13, 2018.
  7. ^ Kelly Walsh, Jeanette Hussemann, Abigail Flynn, Jennifer Yahner, Laura Golian (2017). Estimating the Prevalence of Wrongful Conviction (PDF) (Report). US Department of Justice.CS1 maint: uses authors parameter (link)
  8. ^ "Qualitatively Estimating the Incidence of Wrongful Convictions" (PDF)., Criminal Law Bulletin 48(2) [2012] 221—279
  9. ^ Dina Fine Maron. "Many Prisoners on Death Row are Wrongfully Convicted". Scientific American.
  10. ^ Gross, Samuel R.; O’Brien, Barbara; Hu, Chen; Kennedy, Edward H. (May 20, 2014). "Rate of false conviction of criminal defendants who are sentenced to death". Proceedings of the National Academy of Sciences. 111 (20): 7230–7235. doi:10.1073/pnas.1306417111. ISSN 0027-8424.
  11. ^ "How You Could Land in Jail for Committing No Crime". Haaretz.
  12. ^ Edmond, G. (2002). "Constructing Miscarriages of Justice: Misunderstanding Scientific Evidence in High Profile Criminal Appeals". Oxford Journal of Legal Studies. 22 (1): 53–89. doi:10.1093/ojls/22.1.53.
  13. ^ Rafter, N. (1990). "The Social Construction of Crime and Crime Control". Journal of Research in Crime and Delinquency. 27 (4): 376–389. doi:10.1177/0022427890027004004.
  14. ^ Haney, C. (2005). Death by Design: Capital Punishment as a Social Psychological System. Oxford: Oxford University Press.
  15. ^ Manning, P.K. (2003). Policing Contingencies. Chicago, IL: University of Chicago Press.
  16. ^ Grechenig, Nicklisch & Thoeni, Punishment Despite Reasonable Doubt – A Public Goods Experiment with Sanctions under Uncertainty, Journal of Empirical Legal Studies (JELS) 2010, vol. 7 (4), p. 847-867 (ssrn).
  17. ^ Herrmann, Benedikt, Christian Thöni, and Simon Gächter. "Antisocial punishment across societies." Science 319.5868 (2008): 1362–1367.
  18. ^ Acker, James R. (2013). "The Flipside Injustice of Wrongful Convictions: When the Guilty Go Free". Albany Law Review. 76: 1629.
  19. ^ Norris, Robert J.; Weintraub, Jennifer N.; Acker, James R.; Redlich, Allison D.; Bonventre, Catherine L. (2020). "The criminal costs of wrongful convictions: Can we reduce crime by protecting the innocent?". Criminology & Public Policy. 19 (2): 367–388. doi:10.1111/1745-9133.12463.
  20. ^ Zhong, Lena Y.; Dai, Mengliang (2019). "The Politics of Wrongful Convictions in China". Journal of Contemporary China. 28 (116): 260–276. doi:10.1080/10670564.2018.1511396.
  21. ^ Xiaofeng, Wu (2011). "An Analysis of Wrongful Convictions in China". Oklahoma City University Law Review. 36: 451.
  22. ^ Jiang, Na (2016). Wrongful Convictions in China. Springer. ISBN 978-3-662-46084-9.
  23. ^ "Why is Britain refusing to compensate victims of miscarriage of justice?". Duncan Campbell, The Guardian.
  24. ^ "Man wrongly jailed for three years charged £7,000 by Home Office for 'board and lodging'". London Evening Standard.
  25. ^ Bowcott, Owen (October 11, 2018). "Failure to disclose vital evidence in criminal cases growing, says watchdog". The Guardian. Retrieved October 11, 2018.
  26. ^ "Criminal Cases Review Commission". Government of the United Kingdom. Retrieved March 18, 2009.
  27. ^ "Appeal Court Judgment". Archived from the original on April 15, 2010. Retrieved March 28, 2010.
  28. ^ Gross, Samuel R.; Shaffer, Michael (June 22, 2012). "Exonerations in the United States, 1989 – 2012 / Report by the National Registry of Exonerations" (PDF). University of Michigan Law School. Archived (PDF) from the original on December 6, 2013.
  29. ^ The Editorial Board (February 12, 2016). "Prisoners Exonerated, Prosecutors Exposed". The New York Times. ISSN 0362-4331. Archived from the original on October 3, 2017. Retrieved May 10, 2017.
  30. ^ a b Garrett, Brandon L. (January 13, 2020). "Wrongful Convictions". Annual Review of Criminology. 3 (1): 245–259. doi:10.1146/annurev-criminol-011518-024739. ISSN 2572-4568.
  31. ^ "Government Misconduct and Convicting the Innocent" (PDF). National Registry of Exonerations. 2020.
  32. ^ How the wrongfully convicted are compensated for years lost, CBS News, By Stephanie Slifer, March 27th, 2014
  33. ^ Compensation Statutes: A National OVerview, Innocense Project
  34. ^ Rohrlich, Justin (November 10, 2014). "Why Are There Up to 120,000 Innocent People in US Prisons?". VICE news.
  35. ^ GOULD, JON B.; LEO, RICHARD A. (2010). "ONE HUNDRED YEARS LATER: WRONGFUL CONVICTIONS AFTER A CENTURY OF RESEARCH". The Journal of Criminal Law and Criminology (1973-). 100 (3): 825–868. ISSN 0091-4169.
  36. ^ Natapoff, Alexandra (2006–2007). "Beyond Unreliable: How Snitches Contribute to Wrongful Convictions". Golden Gate University Law Review. 37: 107–.CS1 maint: date format (link)
  37. ^ Giannelli, Paul C. (2007–2008). "Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs". North Carolina Law Review. 86: 163.CS1 maint: date format (link)
  38. ^ Garrett, Brandon L.; Neufeld, Peter J. (2009). "Invalid Forensic Science Testimony and Wrongful Convictions". Virginia Law Review. 95 (1): 1–97. ISSN 0042-6601.
  39. ^ Covey, Russell (2012–2013). "Police Misconduct as a Cause of Wrongful Convictions". Washington University Law Review. 90: 1133.CS1 maint: date format (link)
  40. ^ Joy, Peter A. (2006). "Relationship between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System". Wisconsin Law Review. 2006: 399.

Further reading[edit]

  • Jed S. Rakoff, "Jailed by Bad Science", The New York Review of Books, vol. LXVI, no. 20 (19 December 2019), pp. 79–80, 85. According to Judge Rakoff (p. 85), "forensic techniques that in their origin were simply viewed as aids to police investigations have taken on an importance in the criminal justice system that they frequently cannot support. Their results are portrayed... as possessing a degree of validity and reliability that they simply do not have." Rakoff commends (p. 85) the U.S. National Academy of Sciences recommendation to "creat[e] an independent National Institute of Forensic Science to do the basic testing and promulgate the basic standards that would make forensic science much more genuinely scientific."

External links[edit]