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The Right to Compensation for Wrongful Conviction

Stefan Trechsel

in Human Rights in Criminal Proceedings

When it comes to the accused's right to compensation for wrongful conviction in criminal proceedings, the European Convention on Human Rights (ECHR) puts the words ‘or he has been pardoned’ between ... More

When it comes to the accused's right to compensation for wrongful conviction in criminal proceedings, the European Convention on Human Rights (ECHR) puts the words ‘or he has been pardoned’ between commas and adds to the reference to ‘the law’ the alternative ‘the practice of that State concerned’. In contrast, the American Convention on Human Rights (ACHR) refers neither to domestic law nor to the requirement that there be a finding that there was a miscarriage of justice. This could be misinterpreted as suggesting that it applies to the international authorities. This chapter discusses the origins, purpose, and significance of the guarantee, along with the prerequisites of the right to compensation for wrongful conviction (for example, conviction resulting from a criminal offence), the substance of the compensation, and the beneficiary of the right to compensation.Less

Law: Wrongful Conviction and Criminal Responsibility

Paul Thagard

in Mind-Society: From Brains to Social Sciences and Professions

The legal profession is a complex of mental and social mechanisms. Social cognitivism yields new ways of thinking about reasonable doubt, wrongful convictions, and criminal responsibility. Semantic ... More

The legal profession is a complex of mental and social mechanisms. Social cognitivism yields new ways of thinking about reasonable doubt, wrongful convictions, and criminal responsibility. Semantic pointer theories of cognition and emotion explain individual decisions, including defective ones that lead to wrongful convictions. Explanatory coherence shows how people can make judgments of guilt in accord with legal principles, and reasonable doubt based on the value of the presumption of innocence is a legitimate motivated inference. However, illegitimate motivated inferences resulting from emotional coherence with inappropriate values can produce biased and inaccurate verdicts. Moreover, the social interactions that operate in trials and other legal proceedings can naturally be explained using the semantic pointer theory of communication that mingles verbal and nonverbal modes while accommodating the interactions of cognitions and emotions.Less

China’s Death Penalty Practice: Working Progress, Struggle, and Challenges Within the Global Abolition Movement

Bin Liang

in The Death Penalty In China: Policy, Practice, and Reform

This introduction chapter outlines working progress of China’s death penalty over the decades and discusses its struggle and challenges within the global abolition movement.

Empirical Studies on Wrongful Convictions

Jiahong He

in Back from the Dead: Wrongful Convictions and Criminal Justice in China

Based on the case of Shi Dongyu, the author reports on the empirical studies of wrongful convictions in modern China. From August 2006 to March 2007 the author lead a team of researchers to ... More

Based on the case of Shi Dongyu, the author reports on the empirical studies of wrongful convictions in modern China. From August 2006 to March 2007 the author lead a team of researchers to distribute 2500 copies of questionnaires they had drawn up concerning wrongful convictions in China. The questionnaires were sent to legal professionals in public security bureaus, people's procuratorates, people's courts, law firms and justice departments in those areas. We reclaimed 1715 completed copies of the questionnaires. The team also collected, through various channels, more than 100 cases of wrongful convictions in China (since the 1980s), and analysed the causes of these wrongful convictions.Less

Limitations of the Original Opinion

Lawrence S. Wrightsman and Mary L. Pitman

in The Miranda Ruling: Its Past, Present, and Future

This is the first of four chapters describing different causes for the less-than-anticipated impact of the Miranda decision. The decision was a compromise, and did not go as far as it could have. For ... More

This is the first of four chapters describing different causes for the less-than-anticipated impact of the Miranda decision. The decision was a compromise, and did not go as far as it could have. For example, the justices considered, but rejected, a requirement of an attorney’s presence when the warnings were given. The decision limited the application of the warnings to only those interrogations when the defendant was “in custody,” and the Court was vague about the timing requirements.Less

Conclusion

Kevin Jon Heller

in The Nuremberg Military Tribunals and the Origins of International Criminal Law

This concluding chapter ends the book by summarizing the lessons of the previous chapters and asking whether the trials were successful. It covers issues such as retributive justice, documentary ... More

This concluding chapter ends the book by summarizing the lessons of the previous chapters and asking whether the trials were successful. It covers issues such as retributive justice, documentary record, and wrongful acquittals and convictions.Less

Problematizing miscarriage of justice

Richard Nobles and David Schiff

in Understanding Miscarriages of Justice: Law, the Media and the Inevitability of a Crisis

A miscarriage of justice can be defined in many different ways and in nearly whatever way one wishes. At its widest, and most tautological, a miscarriage of justice is simply a failure to achieve ... More

A miscarriage of justice can be defined in many different ways and in nearly whatever way one wishes. At its widest, and most tautological, a miscarriage of justice is simply a failure to achieve justice. Attempts to introduce content into justice, however well reasoned, raise the issues of relativism, subjectivism, and ideology, which make giving justice a clear and universal meaning highly problematic. The general conception of miscarriage of justice, which is shared by the diverse communities of lawyers, media, politicians and in general social communication, is not injustice per se, but wrongful conviction. Whilst all of criminal justice can be understood in terms of process, it is not possible to present all of it as informed by ideas of rights or fairness. Those who seek due process based on rights or fairness generally wish for the rest of criminal justice to be justified by reference to the pursuit of truth. An alternative thesis is to view the rhetoric of justice within criminal justice as just that: rhetoric.Less

The Nature of Applications to the Commission

Carolyn Hoyle and Mai Sato

in Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission

This chapter examines the nature of applications for wrongful convictions that the Criminal Cases Review Commission receives and the kinds of issues raised by applicants. It highlights the potential ... More

This chapter examines the nature of applications for wrongful convictions that the Criminal Cases Review Commission receives and the kinds of issues raised by applicants. It highlights the potential flaws of applications presented to the Commission, such as those relating to investigations conducted by police and prosecutors. It also reviews the extant literature on the sources of wrongful conviction to explain the range of possible misconduct and legal, scientific, or human error that might lead to an applicant being wrongfully convicted, or to believing themselves to be so. A number of sex cases and ‘expert evidence’ cases are discussed to illustrate the fallibility of witnesses, vulnerable suspects, the fallibility of science and expert testimony, due process failures, and the pervasive influence of prejudice and fear. The chapter concludes with some reflections on the changing nature of wrongful convictions over the past decade or two.Less

Complainant Credibility in Sexual Offence Cases

Carolyn Hoyle and Mai Sato

in Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission

This chapter examines the Criminal Cases Review Commission's approach to sexual offence cases that tend to present evidence pertaining to the credibility of the complainant. Drawing on forty-six ... More

This chapter examines the Criminal Cases Review Commission's approach to sexual offence cases that tend to present evidence pertaining to the credibility of the complainant. Drawing on forty-six cases reviewed by the Commission during the period 1998–2011, the chapter considers how the Commission establishes complainant credibility by discussing its decision ‘field’ in relation to the changing environment of the ‘surround’. It also explores developments in the field before and after 2006, the Court of Appeal's stance on the type of credibility that might persuade it to quash convictions, and the wider politics and media contribution to the growing concerns about victims of historical sexual abuse. Finally, it analyses the Commission's response to changes in the surround — driven by real experience of victim bashing and evidence of wrongful convictions — and identifies contrasting decision frames: a frame that is sensitive to the changing surround versus a frame concerned with wrongful convictions.Less

Justice and Injustice *

Tom Bingham

in The Business of Judging: Selected Essays and Speeches

When the Birmingham Six case was quashed, a Royal Commission was established with the object, among others, of seeking to ensure that ... More

When the Birmingham Six case was quashed, a Royal Commission was established with the object, among others, of seeking to ensure that miscarriages of justice would never occur again. This chapter reviews wrongful convictions which have occurred in the past. However, it also takes account of the recommendations made by the Royal Commission and shows how cases referred to the court by the Criminal Cases Review Commission (a body set up on the recommendation of the Royal Commission) had up to that time been dealt with by the courts. One cannot doubt that in the earlier centuries of criminal justice in Britain, many such injustices must have occurred: with private prosecutors, unrepresented defendants not permitted to testify on their own behalf, very short trials, sometimes inexpert judges, and summary penalties quickly executed, the scope for error must have been great.Less

Introduction

Daniel S. Medwed

in Prosecution Complex: America's Race to Convict and Its Impact on the Innocent

This book examines how the institutional “prosecution complex” contributes to wrongful convictions for innocent defendants. The book is divided into three parts that correspond to the key phases of a ... More

This book examines how the institutional “prosecution complex” contributes to wrongful convictions for innocent defendants. The book is divided into three parts that correspond to the key phases of a criminal case: pretrial, trial, and post-conviction. Each part begins with a representative story of a wrongful conviction and offers thoughts on possible reforms to add substance to the minister-of-justice principle. Part 1 explores how prosecutorial conduct before trial may result in wrongful convictions, Part 2 focuses on prosecutorial tactics at trial that may result in wrongful convictions, and Part 3 tackles the issue of prosecutorial resistance to post-conviction innocence claims. The chapters combine case narratives with evaluations of the rules and biases that permit prosecutors to assist in wrongful convictions.Less

Charging Ahead

Daniel S. Medwed

in Prosecution Complex: America's Race to Convict and Its Impact on the Innocent

This chapter examines a variety of prosecutorial choices before trial that may contribute to wrongful convictions, with particular emphasis on decisions about charging crimes. It begins by explaining ... More

This chapter examines a variety of prosecutorial choices before trial that may contribute to wrongful convictions, with particular emphasis on decisions about charging crimes. It begins by explaining the rules governing a prosecutor's decision to file a criminal charge before moving to a discussion of the scandal involving Duke University's lacrosse team that illustrates how criminal charges based on a one-sided probable cause determination weaken the integrity of the system. It then considers a number of proposed reforms for the probable cause standard and suggests the creation of an internal review committee to evaluate preliminary charging decisions to temper the effects of cognitive bias by prosecutors. It also looks at a number of reforms that could minimize the harms caused by tunnel vision at the charging stage and concludes by arguing that individual prosecutors must be punished for egregious charging errors.Less

The Criminal Justice System and the Death Penalty

Hong Lu, Yudu Li, and Charlotte Hu

in The Death Penalty In China: Policy, Practice, and Reform

This chapter provides an overview of the substantive and procedural laws regarding China’s death penalty, and examines a recent death penalty case to illustrate how death penalty laws are translated ... More

This chapter provides an overview of the substantive and procedural laws regarding China’s death penalty, and examines a recent death penalty case to illustrate how death penalty laws are translated into practice.Less

Responding to Wrongful Convictions

Carolyn Hoyle and Mai Sato

in Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission

This chapter provides a background on the Criminal Cases Review Commission of England and Wales, first by tracing its origins and remit and then comparing its post-conviction review procedures with ... More

This chapter provides a background on the Criminal Cases Review Commission of England and Wales, first by tracing its origins and remit and then comparing its post-conviction review procedures with those of other jurisdictions. It was the Criminal Appeal Act 1907, which established the Court of Criminal Appeal, that introduced the first system of regular appeals against criminal conviction in England and Wales. The Court of Criminal Appeal was the forerunner of today's Court (Criminal Division), created in 1966. Since the Commission started work in 1997, it has received thousands of applications relating to wrongful convictions and/or sentences. After discussing the history of the Criminal Cases Review Commission in the UK, the chapter considers post-conviction review in other parts of the world, focusing on Scotland, Norway, North Carolina, Canada, Australia, and New Zealand.Less

Introduction

Daniel S. Medwed

in Prosecution Complex: America's Race to Convict and Its Impact on the Innocent

This book examines how the institutional “prosecution complex” contributes to wrongful convictions for innocent defendants. The book is divided into three parts that correspond to the key phases of ... More

This book examines how the institutional “prosecution complex” contributes to wrongful convictions for innocent defendants. The book is divided into three parts that correspond to the key phases of a criminal case: pretrial, trial, and post-conviction. Each part begins with a representative story of a wrongful conviction and offers thoughts on possible reforms to add substance to the minister-of-justice principle. Part 1 explores how prosecutorial conduct before trial may result in wrongful convictions, Part 2 focuses on prosecutorial tactics at trial that may result in wrongful convictions, and Part 3 tackles the issue of prosecutorial resistance to post-conviction innocence claims. The chapters combine case narratives with evaluations of the rules and biases that permit prosecutors to assist in wrongful convictions. Less

1 Charging Ahead

Daniel S. Medwed

in Prosecution Complex: America's Race to Convict and Its Impact on the Innocent

This chapter examines a variety of prosecutorial choices before trial that may contribute to wrongful convictions, with particular emphasis on decisions about charging crimes. It begins by ... More

This chapter examines a variety of prosecutorial choices before trial that may contribute to wrongful convictions, with particular emphasis on decisions about charging crimes. It begins by explaining the rules governing a prosecutor's decision to file a criminal charge before moving to a discussion of the scandal involving Duke University's lacrosse team that illustrates how criminal charges based on a one-sided probable cause determination weaken the integrity of the system. It then considers a number of proposed reforms for the probable cause standard and suggests the creation of an internal review committee to evaluate preliminary charging decisions to temper the effects of cognitive bias by prosecutors. It also looks at a number of reforms that could minimize the harms caused by tunnel vision at the charging stage and concludes by arguing that individual prosecutors must be punished for egregious charging errors. Less

Responding to Applicants’ Allegations of Policing Without Integrity

Carolyn Hoyle and Mai Sato

in Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission

This chapter examines the Criminal Cases Review Commission's response to claims that policing without integrity affects the safety of the applicant's conviction. It first considers cases of wrongful ... More

This chapter examines the Criminal Cases Review Commission's response to claims that policing without integrity affects the safety of the applicant's conviction. It first considers cases of wrongful conviction that led to the establishment of two royal commissions on criminal procedure and criminal justice before discussing whether the inclusion of allegations of police misconduct can be the ‘kiss of death for an application to the Commission’ and whether the test of unsafety is more widely protective than a test of innocence. It then explores how the Commission's ‘surround’ influences its decision field and how it assumes a legal frame in making crucial decisions regarding evidence of improper policing. It also analyses cases with police misconduct and non-disclosure as a ground for referral before concluding with an overview of past, present, and future challenges faced by the Commission with regard to the issue of policing without integrity.Less

Plea Bargaining Pitfalls

Daniel S. Medwed

in Prosecution Complex: America's Race to Convict and Its Impact on the Innocent

This chapter considers prosecutorial choices before trial that may contribute to wrongful convictions, with particular emphasis on decisions about plea bargaining. Plea agreements are based on a ... More

This chapter considers prosecutorial choices before trial that may contribute to wrongful convictions, with particular emphasis on decisions about plea bargaining. Plea agreements are based on a strong presumption of correctness. The point of plea bargaining is to achieve a quick, tidy, and final resolution. An enduring question, however, is whether plea bargaining harms the innocent. This chapter first looks at the tendency of some innocent defendants to rationally forgo their right to trial and plead guilty before discussing the reasons why prosecutors offer generous pleas in weak cases, including tunnel vision and loss aversion. It then examines the failure of legal doctrines and ethical rules to protect the innocent during plea bargaining and concludes by suggesting reforms to address the most glaring flaw in plea bargaining practices: that some innocent defendants plead guilty to avoid the uncertainty of going to trial and receiving a higher sentence upon conviction.Less