Stefan Trechsel
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199271207
- eISBN:
- 9780191709623
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271207.003.0015
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
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
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.
Bin Liang
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780231170079
- eISBN:
- 9780231540810
- Item type:
- chapter
- Publisher:
- Columbia University Press
- DOI:
- 10.7312/columbia/9780231170079.003.0001
- Subject:
- Law, Criminal Law and Criminology
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.
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.
Jiahong He
- Published in print:
- 2016
- Published Online:
- November 2016
- ISBN:
- 9780824856618
- eISBN:
- 9780824868703
- Item type:
- chapter
- Publisher:
- University of Hawai'i Press
- DOI:
- 10.21313/hawaii/9780824856618.003.0001
- Subject:
- Society and Culture, Asian Studies
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
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.
Lawrence S. Wrightsman and Mary L. Pitman
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199730902
- eISBN:
- 9780199776986
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199730902.003.004
- Subject:
- Psychology, Forensic Psychology
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
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.
Carolyn Hoyle and Mai Sato
- Published in print:
- 2019
- Published Online:
- March 2019
- ISBN:
- 9780198794578
- eISBN:
- 9780191836022
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198794578.003.0005
- Subject:
- Law, Criminal Law and Criminology, Human Rights and Immigration
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
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.
Kevin Jon Heller
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199554317
- eISBN:
- 9780191728624
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199554317.003.0018
- Subject:
- Law, Public International Law, Criminal Law and Criminology
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
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.
Richard Nobles and David Schiff
- Published in print:
- 2000
- Published Online:
- March 2012
- ISBN:
- 9780198298939
- eISBN:
- 9780191685552
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298939.003.0002
- Subject:
- Law, Criminal Law and Criminology
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
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.
Carolyn Hoyle and Mai Sato
- Published in print:
- 2019
- Published Online:
- March 2019
- ISBN:
- 9780198794578
- eISBN:
- 9780191836022
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198794578.003.0008
- Subject:
- Law, Criminal Law and Criminology, Human Rights and Immigration
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
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.
Tom Bingham
- Published in print:
- 2000
- Published Online:
- March 2012
- ISBN:
- 9780198299127
- eISBN:
- 9780191685620
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198299127.003.0019
- Subject:
- Law, Legal Profession and Ethics, Philosophy of Law
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
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.
He Jiahong
- Published in print:
- 2016
- Published Online:
- November 2016
- ISBN:
- 9780824856618
- eISBN:
- 9780824868703
- Item type:
- book
- Publisher:
- University of Hawai'i Press
- DOI:
- 10.21313/hawaii/9780824856618.001.0001
- Subject:
- Society and Culture, Asian Studies
Through highlighting and telling the story of some real cases of wrongful conviction, this book introduces the present situation in the Chinese criminal justice system, and makes deep analysis of its ...
More
Through highlighting and telling the story of some real cases of wrongful conviction, this book introduces the present situation in the Chinese criminal justice system, and makes deep analysis of its problems and loopholes. Enlivened with a literary style, it is a treatise of critical legal study. Based on the case analysis and the empirical studies, the author summarizes the causes for wrongful convictions and analyzes the ten misleading zones that most affect this outcome. The author also provides update information about the changes and reforms as well as challenges of the criminal justice in China.Less
Through highlighting and telling the story of some real cases of wrongful conviction, this book introduces the present situation in the Chinese criminal justice system, and makes deep analysis of its problems and loopholes. Enlivened with a literary style, it is a treatise of critical legal study. Based on the case analysis and the empirical studies, the author summarizes the causes for wrongful convictions and analyzes the ten misleading zones that most affect this outcome. The author also provides update information about the changes and reforms as well as challenges of the criminal justice in China.
Daniel S. Medwed
- Published in print:
- 2012
- Published Online:
- March 2016
- ISBN:
- 9780814796245
- eISBN:
- 9780814764350
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814796245.003.0002
- Subject:
- Law, Criminal Law and Criminology
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
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.
Paul Thagard
- Published in print:
- 2019
- Published Online:
- March 2019
- ISBN:
- 9780190678722
- eISBN:
- 9780190686420
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190678722.003.0011
- Subject:
- Psychology, Cognitive Models and Architectures
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
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.
Daniel S. Medwed
- Published in print:
- 2012
- Published Online:
- March 2016
- ISBN:
- 9780814796245
- eISBN:
- 9780814764350
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814796245.003.0001
- Subject:
- Law, Criminal Law and Criminology
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
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.
Hong Lu, Yudu Li, and Charlotte Hu
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780231170079
- eISBN:
- 9780231540810
- Item type:
- chapter
- Publisher:
- Columbia University Press
- DOI:
- 10.7312/columbia/9780231170079.003.0002
- Subject:
- Law, Criminal Law and Criminology
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
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.
Carolyn Hoyle and Mai Sato
- Published in print:
- 2019
- Published Online:
- March 2019
- ISBN:
- 9780198794578
- eISBN:
- 9780191836022
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198794578.003.0001
- Subject:
- Law, Criminal Law and Criminology, Human Rights and Immigration
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
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.
Daniel S. Medwed
- Published in print:
- 2012
- Published Online:
- March 2016
- ISBN:
- 9780814796245
- eISBN:
- 9780814764350
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814796245.003.0002
- Subject:
- Law, Criminal Law and Criminology
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
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.
Carolyn Hoyle and Mai Sato
- Published in print:
- 2019
- Published Online:
- March 2019
- ISBN:
- 9780198794578
- eISBN:
- 9780191836022
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198794578.003.0009
- Subject:
- Law, Criminal Law and Criminology, Human Rights and Immigration
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
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.
Daniel S. Medwed
- Published in print:
- 2012
- Published Online:
- March 2016
- ISBN:
- 9780814796245
- eISBN:
- 9780814764350
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814796245.003.0001
- Subject:
- Law, Criminal Law and Criminology
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
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.
Carolyn Hoyle and Mai Sato
- Published in print:
- 2019
- Published Online:
- March 2019
- ISBN:
- 9780198794578
- eISBN:
- 9780191836022
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198794578.003.0002
- Subject:
- Law, Criminal Law and Criminology, Human Rights and Immigration
This chapter examines the nature of criticisms about the Criminal Cases Review Commission, especially with regards to its application of the ‘real possibility test’ in investigating and referring ...
More
This chapter examines the nature of criticisms about the Criminal Cases Review Commission, especially with regards to its application of the ‘real possibility test’ in investigating and referring potential wrongful conviction cases. It begins with a discussion of the Commission's structural failings as perceived by critics external to the institution, with particular emphasis on the argument that focusing on safety and the real possibility test prevents the Commission from referring cases to the Court of Appeal in the interests of ‘justice’, or ‘innocence’. Critics also claim that the Commission does not strike a proper balance between thoroughness and efficiency in the allocation of its finite resources; that it is inconsistent in its response; and that it sometimes does not communicate adequately with applicants and their legal representatives. The chapter concludes with an overview of the book's key research goals as well as the methods employed to realise them.Less
This chapter examines the nature of criticisms about the Criminal Cases Review Commission, especially with regards to its application of the ‘real possibility test’ in investigating and referring potential wrongful conviction cases. It begins with a discussion of the Commission's structural failings as perceived by critics external to the institution, with particular emphasis on the argument that focusing on safety and the real possibility test prevents the Commission from referring cases to the Court of Appeal in the interests of ‘justice’, or ‘innocence’. Critics also claim that the Commission does not strike a proper balance between thoroughness and efficiency in the allocation of its finite resources; that it is inconsistent in its response; and that it sometimes does not communicate adequately with applicants and their legal representatives. The chapter concludes with an overview of the book's key research goals as well as the methods employed to realise them.
Daniel S. Medwed
- Published in print:
- 2012
- Published Online:
- March 2016
- ISBN:
- 9780814796245
- eISBN:
- 9780814764350
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814796245.003.0004
- Subject:
- Law, Criminal Law and Criminology
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
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.
