A miscarriage of justice is primarily the conviction and punishment of
a person for a crime they did not commit. The term can also apply to
errors in the other direction—"errors of impunity", and to civil
cases. 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 synonymous with wrongful
conviction, referring to a conviction reached in an unfair or disputed
trial. 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 Scandinavian languages (viz. Danish, Norwegian and Swedish) have a
word, the Swedish variant of which is justitiemord, which literally
translates as "justice murder." The term exists in several languages
and was originally used for cases where the accused was convicted,
executed, and later cleared after death. 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. The retention of the term "murder" represents both
universal abhorrence against wrongful convictions and awareness of how
destructive wrongful convictions are. Some Slavic languages have also
the word (justičná vražda in Slovak, justiční vražda in Czech)
which literally translates as "justice murder", 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
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
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 plain error when a miscarriage of
justice (or "manifest injustice") would otherwise occur.
1 General issues
2 Rate of occurrence
2.1 Cultural consequences
3 Cases in specific countries
3.3 The Netherlands
3.6 United Kingdom
3.6.1 England, Wales and Northern Ireland
3.7 United States
4 See also
6 External links and further reading
Causes of miscarriages of justice include:
Plea bargains that offer incentives for the innocent to plead guilty,
sometimes called an innocent prisoner's dilemma
Confirmation bias on the part of investigators
Withholding or destruction of evidence by police or prosecution
Fabrication of evidence or outright perjury by police (see
testilying), or prosecution witnesses (e.g., Charles Randal Smith)
Biased editing of evidence
Prejudice against the class of people to which the defendant belongs
Misidentification of the perpetrator by witnesses and/or victims
Overestimation/underestimation of the evidential value of expert
Faulty forensic tests
False confessions due to police pressure or psychological weakness
Misdirection of a jury by a judge during trial
Perjured evidence by the real guilty party or their accomplices
Perjured evidence by the alleged victim or their accomplices
Conspiracy between court of appeal judges and prosecutors to uphold
conviction of the innocent
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
International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights requires the
victims of miscarriage of justice to be compensated.
Rate of occurrence
Various studies estimate that in the United States, between 2.3 and 5%
of all prisoners are innocent. One study estimated that up to
10,000 people may be wrongfully convicted of serious crimes each
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.
According to Professor Boaz Sangero of the College of Law and Business
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.
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. 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.
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. Ultimately, this may have a significant impact on critical
public beliefs about emerging forms of crime such as cybercrime,
global crime, and terrorism.
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.
The extent of wrongful sanctions varies between societies.
Cases in specific countries
Main article: List of miscarriage of justice cases
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
Ontario Court of Appeal overturned Truscott's
conviction, based on a reexamination of forensic evidence. The
government of Ontario awarded him $6.5 million in compensation.
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. 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
Canadian Broadcasting Corporation put it, "The name
Donald Marshall is almost synonymous with 'wrongful conviction' and
the fight for native justice in Canada." Marshall received a
lifetime pension of $1.5 million in compensation and his
conviction resulted in changes to the
Canada Evidence Act
Canada Evidence Act so that any
evidence obtained by the prosecution must be presented to the defence
David Milgaard was wrongfully convicted for the rape and
murder of Gail Miller. He was released in 1992 and compensated $10
million by the Saskatchewan government after having spent 23 years in
prison. After being tied to it by DNA evidence, serial rapist
Larry Fisher (murderer) was convicted of the murder in 1999.
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
Ontario Court of Appeal overturned his
conviction. 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." Morin received $1.25 million in compensation from the
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.
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 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
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.
The Constitution of Spain guarantees compensation in cases of
miscarriage of justice.
United Kingdom a jailed person, whose conviction is quashed,
may be paid compensation for the time they were incarcerated. This is
currently limited by statute to a maximum sum of £500,000. See also
Overturned convictions in the United Kingdom.
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
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 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
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." (See Christy Walsh (Case).)
Criminal Appeal (Scotland) Act 1927
Criminal Appeal (Scotland) Act 1927 increased the jurisdiction of
Scottish Court of Criminal Appeal
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.
Gravestone of George Johnson who was unjustly hanged by mistake in
For a list of exonerations after death sentences, see List of
exonerated death row inmates.
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. By 2015, the number of individual exonerations was
reported as 1,733, with 2015 having the highest annual number of
exonerations since 1989.
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.
In 2013, in Massachusetts, a chemist admitted 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.
List of exonerated death row inmates
List of wrongful convictions in the United States
Deventer murder case
Teresa de Simone – The longest case of miscarriage of justice in
Christy Walsh (Case)
Error of impunity
False allegation of child sexual abuse
Innocent prisoner's dilemma
Perverting the course of justice
Presumption of guilt
^ Sangero, Boaz (2016). Safety from False Convictions. United States:
CreateSpace. ISBN 978-1536823738.
^ International Covenant on Civil and Political Rights, Article 14, 6
^ "How many innocent people are there in prison?".
^ "10,000 INNOCENT PEOPLE CONVICTED EACH YEAR, STUDY ESTIMATES".
^ Dina Fine Maron. "Many Prisoners on Death Row are Wrongfully
Convicted". Scientific American.
^ "How You Could Land in Jail for Committing No Crime".
^ Edmond, G. (2002). "Constructing Miscarriages of Justice:
Misunderstanding Scientific Evidence in High Profile Criminal
Appeals". Oxford Journal of Legal Studies. 22 (1): 53–89.
^ Rafter, N. (1990). "The Social Construction of
Crime and Crime
Control". Journal of Research on
Crime and Delinquency. 27 (4):
^ Haney, C. (2005). Death by Design: Capital
Punishment as a Social
Psychological System. Oxford: Oxford University Press.
^ Manning, P.K. (2003). Policing Contingencies. Chicago, IL:
University of Chicago Press.
^ 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
^ Herrmann, Benedikt, Christian Thöni, and Simon Gächter.
"Antisocial punishment across societies." Science 319.5868 (2008):
^ The Associated Press (29 Aug 2007). "Canadian Court Overturns 1959
Murder Verdict". The New York Times: 13. access-date= requires
^ "Newsroom : Results". www.attorneygeneral.jus.gov.on.ca.
^ "Acquitted in killing, Marshall is jubilant". The Globe and Mail. 11
^ Reluctant Hero: The Donald Marshall Story CBC.ca, URL accessed 10
^ "Donald Marshall Jr". The Canadian Encyclopedia. Historica Canada.
Retrieved 26 February 2016.
^ "Archived copy" (PDF). Archived from the original (PDF) on
2015-06-18. Retrieved 2015-06-17.
^ "Milgaard will get $10 million compensation". CBC News. Canadian
Broadcasting Corporation. Retrieved 26 February 2016.
^ "Killer behind David Milgaard's wrongful conviction dies in
^ a b "
Guy Paul Morin Case". The Canadian Encyclopedia. Historica
Canada. Retrieved 26 February 2016.
^ Makin, Kirk. "
Guy Paul Morin Case". The Canadian Encyclopedia.
Historica Canada. Retrieved 23 March 2016.
^ Enzo Tortora: When justice miscarries, The Florentine, October 30,
^ "Criminal Cases Review Commission". Ccrc.gov.uk. Retrieved
^ "Appeal Court Judgment".
^ 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.
^ The Editorial Board (2016-02-12). "Prisoners Exonerated, Prosecutors
Exposed". The New York Times. ISSN 0362-4331. Archived from the
original on October 3, 2017. Retrieved 2017-05-10.
^ Lois Romano, "When DNA Meets Death Row, It's the System That's
Tested", Washington Post, December 12, 2003.
^ "21,000 drug convictions set to be quashed after Massachusetts
chemist tampered with evidence". Sky News. 19 April 2017.
External links and further reading
Conviction Films and TV Episodes". Innocence
Project. October 28, 2016. www.InnocenceProject.org. Missing or
empty url= (help)
Innocence Project – A US-based nonprofit organization dedicated
to freeing the wrongly convicted
Innocence Network UK (INUK) – An organisation to facilitate casework
on alleged wrongful convictions by innocence projects
Innocent.org.uk – Website of UK cases of alleged and proven
miscarriages of justice
Sangero, Boaz (2016). SAFETY FROM FALSE CONVICTIONS.
US Citizens Wrongfully Convicted by The Judicial System – Statistics
about citizens wrongfully convicted by the judicial system in the US
Miscarriage of justice
Types of misconduct
Abuse of process
Abuse of discretion
Gaming the system
Spoliation of evidence
False accusation of rape
False allegation of child sexual abuse
Tampering with evidence
List of wrongful convictions in the United States
List of exonerated death row inmates
Miscarriage of justice
List of miscarriage of justice cases
Overturned convictions in the United States
National Registry of Exonerations
Right to a fair trial
Race in the United States criminal justice system
Capital punishment in the United States
Innocent prisoner's dilemma
Ineffective assistance of counsel
Equal Protection Clause
Batson v. Kentucky
List of United States death row inmates