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Miscarriages of Justice

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These are not accidental, but are the logical and natural consequences of the criminal justice process.

1. Originally, the courts were not part of the government. In John Locke's Second Treatise, the branches of government were legislative, executive and diplomatic. Courts were community institutions to protect from government. Our present federal Constitution made the courts a branch of government.

2. Prosecutors, defense attorneys -- especially "public defenders" -- bailiffs, and other actors all work together daily. The victim and the accused are outsiders to the system.

3. Actors are not responsible for their decisions. Bad prosecutions, jury error, judicial error go unpunished, even if they are corrected on appeal.

4. We draw juries from the pool of licensed drivers -- formerly registered voters. Jurors are not professionals, vetted for their competence.

5. Eyewitness testimony is known to be notoriously flawed. A subset comes from the police "line up." Some are live. In others people are shown photographs. The police "drive up" is when the officers on patrol place the suspect in the back of the car, take them to the victim, and ask for verification.

6. Informants run a spectrum from the guilty seeking absolution, to jail and prison insiders who testify to anything asked in return for material reward. There is no clear, objective way to differentiate them.

7. Special interests perpetuate themselves. Politicians are elected for proposing tougher laws. Government departments of corrections become huge populations dependent on crimes and punishments for their livelihoods. To cut costs, states turn to private providers, generating a "prison-industrial complex." But the very study of criminology seeded an "academic-criminal complex" in which theories abounded and solutions were sparse. On the other hand, governments have quality control processes for the construction of bridges, but none for the construction of criminal law or its application and enforcement. Police and prosecutors gain power and authority for enforcements which incentivizes them to lie: the courts uphold their right to do so.

(more to follow)

Edited by Hermes
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Originally, the courts were not part of the government.
I find that statement hard to understand, in light of the Norman curia regis and the practice of the Norman judges of "declaring" the common law. So either you have something special in mind by "originally" or else "courts".
Prosecutors, defense attorneys -- especially "public defenders" -- bailiffs, and other actors all work together daily. The victim and the accused are outsiders to the system.
The "outsiderness" of the victim is true, in that the victim is an optional witness: crimes are considered offenses against society, not offenses against individuals. The fact that defense attorneys "work with" prosecutors, in the sense of being sworn officers of the court, is pretty much irrelevant, as is the invocation of the notion "the system". If you want, you may defend yourself if you are accused.
Actors are not responsible for their decisions. Bad prosecutions, jury error, judicial error go unpunished, even if they are corrected on appeal.
That is because being in error is not a crime. However, there are prosecutable offenses that judges and attorneys can he held to account for, such as tampering with evidence.

I'll give you a total pass on points 4 - 6: that is a real problem. Point 7 is just a lament about the sad state of affairs of modern politics. Blaming the privatization or outsourcing of prisons for anything is baseless, and it's plainly false to claim that there are no ethical standards for law enforcement.

When more follows, please do make clear what the exact point is.

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8. Junk Science. This includes both fraud and forgery by police laboratories and also the pseudo-sciences presented to juries. The fraudulent reports of forensic "scientists" Joyce Gilchrist of Oklahoma City and Fred Zain of the State of West Virginia would seem isolated, but for revelations about the same kinds of frauds from the Houston, San Francisco and other crime labs. Google "crime lab scandal" and follow the links.

Fingerprints are junk science. (While it may be true, though unproved, that ten prints from a person are uniquely differentiable from ten prints from any and every other person, that is not how the system works.) Fingerprint fraud is also a crime lab scandal.

Junk science includes extremes such as hypnotic regressions and psychic revelations but also accepted claims such as the "matching" of hair and fiber samples from crime scenes and victims with samples taken from those who are accused.

9. Interrogations, confessions, and plea bargains. It is common in plea bargaining for the judge to ask the defendant if any promises were made to him in return for his confession and for the defendant to swear that none were, though in fact, he is confessing specifically because such a promise was made. Few constrainsts short of direct torture limit police interrogations. They can lie. They do lie. In the infamous and on-going case of the Norfolk Four, the police convinced the accused individually that they did not remember the horrible crime because it was so horrible that they blocked it out of their memory, but that physical evidence placed them at the scene. Each confessed. The case of Michael Crowe made national television, but few are heard beyond the interrogation room. Claiming non-existent physical evidence, the strongest is argument is "Who is the jury going to believe?" The accused lowers his risks despite his innocence.

These are not exceptions. They are how the criminal justice process works. We have accepted traditional accumulations and acretions of actions that cannot be rationally explained or logically justified. The problem needs to be re-thought from basic premises.

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  • 4 years later...

This could go under Legal Reimbursement for Collateral Damage, yet the more egregious offense is how the prosecutor at the time couches the objectivity of the court processes.


If We Can’t Prevent Wrongful Convictions, Can We at Least Pay for Them?

The crux of the issue:

“In 1984, I was 33 years old,” Stroud wrote. “I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning.” He apologized at length to Ford, then went on to declare that he now opposed the death penalty as an “abomination” that could not be justly administered. “No one should be given the ability to impose a sentence of death in any criminal proceeding,” Stroud wrote. “We are simply incapable of devising a system that can fairly and impartially impose a sentence of death because we are all fallible human beings.”


He was not as interested in justice as in winning. Has he changed his mind?


He is using his miscarriage of justice to argue against the death penalty. Why? Because of his view of the nature of man. "We are all fallible human beings", therefore we are incapable of being fair and impartial.


Does he stop to consider how his view of the nature of man prevents him from achieving certainty about anything other than why the death penalty should never be imposed?

How many other cases did he sacrifice justice to win?

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Interesting topic.


The practice of justice tends to err on the side of caution according to the premise that it's better for a guilty person to go free than a innocent person to be punished.  Additionally, a suspect is presumed to be innocent regardless of how they were apprehended until they have the oppertunity to respond to their accuser in a court of law, the onus being on the accuser to prove their case against the accused.  Cases against even the most apparently guilty, based on evidence presented, may be thrown out of court by a legal flaw in presentation noted by the judge, or a sympathetic jury believing the accused acted reasonably given the circumstances.


Having said all of the above, the fact remains that our system of justice incarcerates more citizens per capita than any other government on earth except Seychelles*.  Depending on how you spin that result, you might claim that our system of justice is the most flawed or the most effective in detecting, apprehending, trying and punishing criminals.  My own view is that justice is not so much miscarried as misapplied as a result of responding to various bad laws, e.g., immigration, tax codes and drug use, that have been enacted and remain on the books, along with points 6 & 9 from the OP and post #3.


It's worth noting the checks and balances in our government designed to prevent/address miscarriages of justice, of which citizens remain an active partner in the criminal justice system initially as voters and periodically as members of the jury.  Taken from the following link: http://www.regentsprep.org/regents/ushisgov/themes/government/checks.htm

1) The President (citizen's agent) nominates judges and has the power to pardon or grant amnesty to convicted criminals.

2) Senators (citizen's agents) can reject presidential judicial nominations, and working with members of the House (citizen's agents), can impeach and remove judges from the bench.

3) The President and Congress (as citizen agents) have the power to create/amend/discontinue the laws that justice respons to.


The conclusion presented in post #3, that "the problem needs to be re-thought from basic premises" doesn't follow from "... actions that cannot be rationally explained or logically justified."  There are any number of rationally explained or logically justified reasons to account for how our system of justice was designed and remains practiced today.  However in the spirit of premise checking, it would be interesting to identify and review which basic premises, e.g., justice for all, innocence until proven guilty, the reasonable man standard, et al, actually result in miscarriages of the system of justice they are supposed to promote.


* The United States led the world in incarcerations per capita until 2014



Edited by Devil's Advocate
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  • 1 year later...

This is the sensitive issue and one the lawyer does not only work on cases but also provides counseling. A lawyer can be your guardian, agent and legal advisor as well. The legal advisers assist the clients by getting the required evidence to support the case. In case of legal obligation, the job of a lawyer is to offer legal support. One may also see post to know more about this.

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