Miscarriage of justice

A miscarriage of justice, also known as a failure of justice, occurs when a person is convicted and punished for a crime that he or she 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.

Wrongful convictions are frequently cited by death penalty opponents as cause to eliminate death penalties to avoid executing innocent persons. In recent years, DNA evidence has been used to clear many people falsely convicted.

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 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.

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

Causes of miscarriages of justice include:[5]

A risk of miscarriages of justice is one of the main arguments against the death penalty. Where condemned persons are executed promptly after conviction, the most significant effect of a miscarriage of justice is irreversible. Wrongly executed people nevertheless occasionally receive posthumous pardons—which essentially void the conviction—or have their convictions quashed. Many death penalty states hold condemned persons for ten or more years before execution, so that any new evidence that might acquit them (or, at least, provide reasonable doubt) will have had time to surface.

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.

Rate of occurrence

Various studies estimate that in the United States, between 2.3 and 5% of all prisoners are innocent.[6] One study estimated that up to 10,000 people may be wrongfully convicted of serious crimes each year.[7]

A 2014 study estimated 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.[8]

According to Professor Boaz Sangero of the College of Law and Business in Ramat Gan in Israel, most wrongful convictions are for crimes less serious than major felonies such as rape and murder, as judicial systems are less careful in dealing with those cases.[9]

Cultural consequences

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.[10] During this time between the miscarriage of justice and its correction, the public holds false beliefs about the occurrence of a crime, the perpetrator of a crime, or both. While the public audience of a miscarriage of justice certainly varies, they may in some cases be as large as an entire nation or multitude of nations.

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.[11]

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.[12] Ultimately, this may have a significant impact on critical public beliefs about emerging forms of crime such as cybercrime, global crime, and terrorism.[13]

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.[14] The extent of wrongful sanctions varies between societies.[15]

Cases in specific countries


In 1959, 14-year-old Steven Truscott was convicted of raping and murdering a 12-year-old girl. Originally sentenced to death by hanging, his sentence was commuted to life imprisonment. He was released on parole in 1969, and was freed from his parole restrictions in 1974. In 2007, the Ontario Court of Appeal overturned Truscott's conviction, based on a reexamination of forensic evidence.[16] The government of Ontario awarded him $6.5 million in compensation.[17]

In 1972, Donald Marshall Jr., a Mi'kmaq man, was wrongly convicted of murder. Marshall spent 11 years in jail before being acquitted in 1983.[18] The case inspired a number of questions about the fairness of the Canadian justice system, especially given that Marshall was an Aboriginal: as the Canadian Broadcasting Corporation put it, "The name Donald Marshall is almost synonymous with 'wrongful conviction' and the fight for native justice in Canada."[19] Marshall received a lifetime pension of $1.5 million in compensation[20] and his conviction resulted in changes to the Canada Evidence Act so that any evidence obtained by the prosecution must be presented to the defence on disclosure.

In 1970, David Milgaard was wrongfully convicted for the rape and murder of Gail Miller.[21] He was released in 1992 and compensated $10 million by the Saskatchewan government after having spent 23 years in prison.[22] After being tied to it by DNA evidence, serial rapist Larry Fisher was convicted of the murder in 1999.[23]

In 1992, Guy Paul Morin was convicted of the 1984 rape and murder of an 8-year-old girl and was sentenced to life imprisonment. In 1995, new testing of DNA evidence showed Morin could not have been the murderer, and the Ontario Court of Appeal overturned his conviction.[24] The case has been described as "a compendium of official error – from inaccurate eyewitness testimony and police tunnel vision, to scientific bungling and the suppression of evidence."[25] Morin received $1.25 million in compensation from the Ontario government.[24]


Enzo Tortora, a TV host on national RAI television, was accused of being a member of the Camorra and drug trafficking. He was arrested in 1983, and sentenced to ten years in jail in 1985, but acquitted of all charges on appeal in 1986.[26]

Raffaele Sollecito and American Amanda Knox were sentenced to 26 years imprisonment for the 2007 Murder of Meredith Kercher. They were released in 2011 after an appeal court found there was no credible evidence against them. Petty burglar Rudy Guede has been convicted of murder and sexual assault in connection with the death of Ms. Kercher.

The Netherlands

The Schiedammerpark murder case, as well as the similarly overturned case of the Putten murder, led to the installation of the "Posthumus I committee", which analyzed what had gone wrong in the Schiedammerpark Murder case, and came to the conclusion that confirmation bias led the police to ignore and misinterpret scientific evidence (DNA). Subsequently, the so-called Posthumus II committee investigated whether other such cases might have occurred. The committee received 25 applications from concerned and involved scientists, and decided to consider three of them further: the Lucia de Berk case, the Ina Post case, and the Enschede incest case. In these three cases, independent researchers (professors Wagenaar, van Koppen, Israëls, Crombag, and Derksen) claim confirmation bias and misuse of complex scientific evidence led to miscarriages of justice.


Norwegian police, courts, and prison authorities have been criticized and convicted on several occasions by the European Court of Human Rights for breaking the principle of innocent until proven guilty. However, the maximum penalty in Norway is normally no longer than 21 years. Thereby, most of the victims have been acquitted after their release from prison.


On December 31, 1996 in Miłoszyce, Poland, a 15-year-old girl was brutally raped and murdered. Tomasz Komenda, then 21, was arrested. He pleaded guilty and was sentenced to 25 years imprisonment. Komenda was regularly abused by fellow prisoners and guards, he tried to commit suicide 3 times. In 2018 when new evidence came out, Komenda was paroled and in May 2018 his conviction was overturned and Komenda was officially exonerated by the Supreme Court of Poland. He and his barrister stated, that they would demand 18 000 000 PLN compensation.


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

United Kingdom

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,[27] with deductions for the cost of food and prison cell during that time.[28] 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.[29]

England, Wales and Northern Ireland

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[30] 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.

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."[31] (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

In June 2012, the National Registry of Exonerations, a joint project of the University of Michigan Law School and Northwestern University Law School, 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.[32] By 2015, the number of individual exonerations was reported as 1,733, with 2015 having the highest annual number of exonerations since 1989.[33]

In the case of Joseph Roger O'Dell III, executed in Virginia in 1997 for a rape and murder, a prosecuting attorney bluntly argued in court in 1998 that if posthumous DNA results exonerated O'Dell, "it would be shouted from the rooftops that ... Virginia executed an innocent man." The state prevailed, and the evidence was destroyed.[34]

In 2013, in Massachusetts, a chemist admitted to tampering with evidence and falsifying results regarding over 21,000 drug convictions from 2004 to 2013 by not undertaking tests and stating untested results were positive for illegal drugs.[35]

At least 21 states in the US do not offer compensation for wrongful imprisonment.[36][37]

The Vice reported that "According to the Innocence Project's estimates, between 2.3 percent and 5 percent of all US prisoners are innocent. The American prison population numbers about 2.4 million. Using those numbers, as many as 120,000 innocent people could currently be in prison."[38]

Nevada's county commissioners will pay $3 million as a settlement amount to Cathy Wood, a woman imprisoned for 35 years for a murder she didn't do. In 2015, she was cleared of charges by DNA evidence found at that crime-scene. She was the longest-ever unjustifiably jailed woman in U.S. history.[39]

See also

General concepts

Specific cases


  1. Garner, Bryan A. (June 25, 2009). miscarriage of justice (9th ed.). Black's Law Dictionary. p. 1088. ISBN 0-314-19949-7. 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. "Qualitatively Estimating the Incidence of Wrongful Convictions" (PDF)., Criminal Law Bulletin 48(2) [2012] 221—279
  8. Dina Fine Maron. "Many Prisoners on Death Row are Wrongfully Convicted". Scientific American.
  9. "How You Could Land in Jail for Committing No Crime". Haaretz.
  10. 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.
  11. 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.
  12. Haney, C. (2005). Death by Design: Capital Punishment as a Social Psychological System. Oxford: Oxford University Press.
  13. Manning, P.K. (2003). Policing Contingencies. Chicago, IL: University of Chicago Press.
  14. 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).
  15. Herrmann, Benedikt, Christian Thöni, and Simon Gächter. "Antisocial punishment across societies." Science 319.5868 (2008): 1362–1367.
  16. The Associated Press (August 29, 2007). "Canadian Court Overturns 1959 Murder Verdict". The New York Times: 13.
  17. "Newsroom : Results". attorneygeneral.jus.gov.on.ca.
  18. "Acquitted in killing, Marshall is jubilant". The Globe and Mail. May 11, 1983.
  19. Reluctant Hero: The Donald Marshall Story Canadian Broadcasting Corporation. Retrieved January 10, 2006.
  20. "Donald Marshall Jr". The Canadian Encyclopedia. Historica Canada. Retrieved February 26, 2016.
  21. "Archived copy" (PDF). Archived from the original (PDF) on June 18, 2015. Retrieved June 17, 2015.CS1 maint: archived copy as title (link)
  22. "Milgaard will get $10 million compensation". CBC News. Retrieved February 26, 2016.
  23. "Killer behind David Milgaard's wrongful conviction dies in prison".
  24. "Guy Paul Morin Case". The Canadian Encyclopedia. Historica Canada. Retrieved February 26, 2016.
  25. Makin, Kirk. "Guy Paul Morin Case". The Canadian Encyclopedia. Historica Canada. Retrieved March 23, 2016.
  26. Enzo Tortora: When justice miscarries, The Florentine, October 30, 2008
  27. "Why is Britain refusing to compensate victims of miscarriage of justice?". Duncan Campbell, The Guardian.
  28. "Man wrongly jailed for three years charged £7,000 by Home Office for 'board and lodging'". London Evening Standard.
  29. Bowcott, Owen (October 11, 2018). "Failure to disclose vital evidence in criminal cases growing, says watchdog". The Guardian. Retrieved October 11, 2018.
  30. "Criminal Cases Review Commission". Government of the United Kingdom. Retrieved March 18, 2009.
  31. "Appeal Court Judgment".
  32. 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.
  33. 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.
  34. Lois Romano, "When DNA Meets Death Row, It's the System That's Tested", The Washington Post, December 12, 2003.
  35. "21,000 drug convictions set to be quashed after Massachusetts chemist tampered with evidence". Sky News. April 19, 2017.
  36. How the wrongfully convicted are compensated for years lost, CBS News, By Stephanie Slifer, March 27th, 2014
  37. Compensation Statutes: A National OVerview, Innocense Project
  38. Rohrlich, Justin (November 10, 2014). "Why Are There Up to 120,000 Innocent People in US Prisons?". VICE news.
  39. "$3M for Nevada woman wrongly imprisoned 35 years for murder". Reno Gazette Journal. Retrieved August 28, 2019.
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