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Eight Decades The Study of Miscarriages of Justice

Bohm, R. M. (2005). Miscarriages of criminal justice : An introduction. Journal of Contemporary Criminal Justice, 21(3), 196–200. A miscarriage of justice is “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” (Garner, 2000, p. 811, as cited in Bohm, 2005, p. 196).

The study of miscarriages of justice started in the early 1930s with the pioneering book, Convicting the Innocent (1932), by Edwin Borchard. Borchard was the first to challenge conventional wisdom suggesting the innocent were never convicted. The fallibility of the criminal justice system in America was revealed and this prompted further articles by lawyers and journalists.

Despite such compelling literature, the systematic analysing of causes, sources of errors, and possible solutions by social scientists and criminologists only began in the late 1980s. Such systematic research was the catalyst to challenge the legitimacy and propriety of capital punishment.

By the 1990s, literature and research on miscarriages of justice had exemplified the incongruence between high-minded democratic ideals and the unnerving reality of wrongful convictions by the legal system. The advent of DNA analysis was the defining contribution supporting the wrongfully convicted. It proves factual innocence compared to merely procedural innocence. Hundreds of wrongly convicted have been exonerated thanks to DNA evidence. The Innocence Project organization established in 1992 has also contributed significantly.

In just the space of a few decades, wrongful convictions are now widely accepted as occurring with regular and troubling frequency in the legal system.

Scheck, B., Neufeld, P., & Dwyer, J. (2000). Actual innocence: Five days to execution and other. Random House Inc.

Past and current research of the study of miscarriages of justice usually follows a descriptive case-based approach involving a “narrative methodology” of the conviction and subsequent release of an innocent. Scheck, Neufeld, and Dwyer (2000), lawyers and journalist respectively, researched 62 exonerations by DNA in America acquired through the Innocence Project to determine what reasons caused these miscarriages of justice.

Scheck et al. detailed 10 specific cases that illustrate the common errors committed by the criminal justice system. Overall data on 62 cases overturned on DNA evidence during August 1999 was also analysed. Findings presented that the leading cause of the wrongful convictions was mistaken eyewitness which occurred in 52 of the 62 cases (83.8%). The other causes in descending order of prevalence are mistaken serology inclusion; police misconduct; prosecutorial misconduct; defective or fraudulent science; bad defense lawyers; false witness testimony; erroneous informant; and false confessions. One of the authors’ astounding conclusions was that a third of the cases included “defective or fraudulent science”. Despite decades of scientific development, particularly DNA profiling, “junk science” (e.g., microscopic hair comparison, blood type comparison) was still a weighty factor in conviction.

These findings are highly valuable to the study of miscarriages of justice. The prevalence of the typical causes of wrongful convictions was explored and the harrowing stories of the wrongly accused were related to the public; increasing awareness of the fallibility of the legal system. However, being a case-driven descriptive research, the study was limited in the lack of random samples and lack of control groups. Granted there was difficulty in locating wrongful convictions due to no governmental records and thus the need to create a new database, the quality of the data is somewhat limited to the quantity of the data.

Leo, R. A. (2005). Rethinking the study of miscarriages of justice: Developing a criminology of wrongful conviction. Journal of Contemporary Criminal Justice, 21(3), 201–223.

Despite decades of the study of wrongful conviction, efforts still fall short. Although wrongful conviction rates have significantly lowered due to DNA profiling, innocents are still being convicted. Moreover, there are still gaps in the legal system; those wrongfully convicted are insufficiently compensated, and countless wrongfully convicted remain undetected.

According to Leo (2005), the unexamined assumption that identified causes (i.e., eyewitness misidentification, police-induced false confessions etc.) are actual “root causes” is too simplistic. He suggests that the deeper causal questions (e.g., “What are the causes of eyewitness misidentification?) that provide more valuable insights are being ignored or left unanswered (p. 213). The underlying issue is that such court identified causes are “legal” causes identified by lawyers, not “root” causes. Criminologists and social scientists need to progress beyond descriptive case studies and build on existing social science frameworks (e.g., rational choice or agency theories). The psychological, sociological, and organizational spheres need to be consulted for the “root” causes to be unravelled.

Contrary to Leo’s argument, there has been research directed towards examining the psychological “root” causes since the 1990s. For example, factors such as weapon focus and cross-racial identification have been identified to affect eyewitness misidentification. Leo’s suggestions regarding the sociological and organizational realms may however present insightful findings.

Wells, G. L., Lindsay, R. L., & Ferguson, T. J. (1979). Accuracy, confidence, and juror perceptions. Journal of Applied Psychology, 64(4), 440–448.

The development of forensic DNA profiling sparked intense concerns about the accuracy of eyewitness identification because hundreds of innocents had been falsely convicted based on eyewitness testimony. It is even more daunting to realise that most crimes are not rich in DNA traces, increasing the reliance on eyewitness testimony. Hundreds potentially wrongly convicted may not be exonerated due to the lack of DNA evidence at the crime scene.

Psychologists Wells, Lindsay, & Ferguson (1979) conducted a study on whether witnesses with false identification of a perpetrator has equivalent courtroom impact than a witnesses with true identification. The hypothesis was that “inaccurate witnesses may fail more than accurate witnesses to convince the jury of the reliability of their testimony” due to lower confidence levels.

A staged theft of a calculator was individually witnessed by 127 participants. The witnesses were asked to identify the perpetrator in a six-person picture array and then grouped based on accurate or inaccurate identification. Each witness then gave a testimony and jurors were instructed to distinguish between those who had accurately or inaccurately identified the thief. The findings suggested that although jurors’ decision to believe the witness are highly related to their ratings of the witnesses’ confidence, the confidence-accuracy relationship is very poor.

The results was probably inconclusive due to the lack of feedback to faciliate confidence levels; confidence levels were marginal. Also, in reality witnesses of a particular crime do not have the same experience; due to varying system and estimator variables. In such cases, the confidence-accuracy relationship may surface. This may explain why eyewitnesses misidentificaton is so prevalent; confident witnesses give jurors the impression of accurate identification.

Cole, S. A. (2009). Cultural consequences of miscarriages of justice. Behavioral Sciences and the Law, 27(3), 431–449.

The study of miscarriages of justice has devoted much more attention to the causes than to the costs. Both individual and social consequences of wrongful convictions have been recognised although not remedied. Cole (2005) presents a previously underexplored area, cultural consequences. During the time of the wrongful conviction and its correction, society holds false beliefs about the types of crime committed, the prevalence of the crime, and what type of individuals commit them.

On a micro scale, the wrongly accused may harbour bitterness towards the community that believed, even temporarily, that he or she had committed the crime. On a macro scale, the temporary false belief may leave permanent perceptions about the prevalence and nature of crimes and criminals. Moral panic may result based on these false beliefs.

One case example is the Central Park Jogger case where seven youths were falsely accused of raping and murdering a random jogger. The act was classified as “wilding”, a previously non-existent term, meaning “random, motiveless assaults” (p. 439). For thirteen years, moral panic ensued as the people believed the state of minority youths to be deteriorating and the crime was made punishable by death. Even after the true perpetrator confessed to the non-wilding crime, prosecutors still expressed disbelief.

This is only one of the hundreds of cases exposing the imperfections of the criminal justice system. In order to develop a greater understanding of the root causes, patterns, features and effects of miscarriages of justice, the field needs to progress beyond current norms, beliefs, approaches and methodology.

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