Interrogations-and-Confessions-Handbook

Miscarriages of Justice and False Confessions 159
3. There are cases where the wrong person may be convicted for the offence
committed.
4. On some occasions the miscarriage of justice arises when the alleged crime
for which the defendant was convicted was never committed. In other words,
the actus reus of the alleged offence has not been correctly established.
As we shall see later, there have been a number of cases where the alleged
murder victim turned up very much alive after the defendant has been convicted
or even executed. Generally speaking, research into miscarriages of justice has
tended to focus on innocent people wrongly convicted rather than on those only
technically innocent because of an error in due process.
Most countries have some kind of a mechanism for reviewing potentially
wrongful convictions. Typically, this consists of some kind of an ‘appeal hearing’,
which in Britain is referred to as the Court of Appeal (Criminal Division). The
Court of Appeal confines itself to questions of law and the evaluation of ‘new’
evidence if this is available; it does not directly deal with questions related to
guilt or innocence.
What are the main reasons for wrongful convictions? This question is best
answered by reviewing the studies of wrongful convictions that have been carried
out.
STUDIES OF MISCARRIAGES OF JUSTICE
A number of books have been written about cases where there has been an
alleged or proven miscarriage of justice (e.g. Bedau, 1964; Borchard, 1932;
Connery & Styron, 1996; Hill, Young & Sargant, 1985; Huff, Rattner & Sagarin,
1986, 1996; Kallio, 1999; Mansfield, 1993; Radelet, Bedau & Putman, 1992;
Radelet, Lofquist & Bedau, 1996; Radin, 1964; Scheck, Neufeld & Dwyer, 2000;
Victory, 2002; Walker & Starmer, 1999; Woffinden, 1989; Yant, 1991). These
have generally given anecdotal and descriptive accounts rather than being
based on rigorous scientific study. Considering the serious implications and
consequences of miscarriages of justice it is perhaps surprising that so few
empirical and scientific studies have been carried out. However, following the
important study of Borchard (1932), which was the first systematic study conducted
into wrongful convictions, a great deal has been learned about the types
of error that result in innocent people being wrongfully convicted. It is to these
that we now turn.
Borchard looked at 62 American and three British cases (Adolf Beck, William
Habron & Oscar Slater) where defendants had been wrongfully convicted in the
early part of the twentieth century. Twenty-nine (45%) of the cases involved defendants
convicted of murder and a further 23 (35%) comprised offences of robbery
and theft. The innocence of these defendants was principally established
by the following.
1. The discovery of the alleged murder victim being alive.
2. Subsequent apprehension of the real culprit.
3. Discovery of some other new evidence that ‘proved’ the defendant’s innocence.