by C. Ronald Huff and Martin Killias (eds). Philadelphia: Temple University Press, 2008. 312pp. Cloth $59.50. ISBN: 9781592136452.
Reviewed by Matthew Light, Centre of Criminology, University of Toronto. Email: matthew.light [at] utoronto.ca.
How successful are the world’s legal systems both in preventing the conviction of factually innocent persons, and in overturning such convictions after they have been pronounced? This is the question that animates this major study. Drawing together research by authors from many countries featuring contrasting legal traditions, editors C. Ronald Huff and Martin Killias have produced perhaps the first attempt to evaluate the scope and characteristics of wrongful conviction as a worldwide phenomenon. This volume thus addresses a crucially important problem for all scholars of comparative criminal justice.
WRONGFUL CONVICTION is organized both thematically and geographically. The first two substantive chapters deal with the highly charged issues of wrongful convictions in cases of alleged child sexual abuse (Randall Grometstein) and the role of forensic science in judicial error (Beatrice Schiffer and Christophe Champol). Grometstein explores the phenomenon of “moral panic” in the context of a rash of accusations of child sexual abuse, often involving allegations of bizarre satanic rituals, which were made against the proprietors and workers of day care centres around the world in the 1980s and 1990s. (It would be interesting to know why these accusations became so widespread at that particular historical moment, and in such a wide variety of countries.) Schiffer and Champol draw attention to the potential for DNA evidence to increase rather than reduce the risk of false convictions when the processing of such evidence is dominated by the police and prosecution.
Subsequent chapters explore the distinctive experiences of particular national legal systems. A survey of wrongful convictions in the United States (C. Ronald Huff) is accompanied by a chilling exploration of executions of the innocent in that country (William S. Lofquist and Talia R. Harmon) that makes out a compelling case that such executions “occur on a regular basis,” and result from “systemic race, class, and resource biases, and through a commitment to the death penalty . . . that overwhelms efforts to improve the machinery of death (p.112). Readers from the United States may be particularly interested in the experience of two sister Common Law jurisdictions, Canada and the United Kingdom, which have recently experimented with new institutions to prevent and correct wrongful convictions. Kathryn M. Campbell, while acknowledging progress in this area since Canada created the Criminal Conviction Review Group, argues that the new procedures [*244] still give too much power to the Minister of Justice (p.123). Clive Walker and Carole McCartney chart the successes and setbacks of the Criminal Cases Review Commission in Britain. The Civil Law countries of Western Europe are also richly represented in chapters dealing with Switzerland (Martin Killias), the Netherlands (Chrisje Brants), Germany (Isael Kessler), and France (Nathalie Dongois). There are also chapters on a post-Communist country, Poland (Emil W. Plywaczewski, Adam Górski, and Andrzej Sakowicz), and a Middle Eastern state with a hybrid legal tradition, Israel (Arye Rattner). The volume concludes with a useful comparative chapter by the editors, setting forth suggestions for legal reforms that could reduce the incidence of wrongful convictions.
The studies in this volume bring home to the reader the sheer variety of phenomena that can be grouped under the general heading of “wrongful conviction.” Some of these cases are by their nature especially spectacular, as in the example of the overturned convictions of day care centre proprietors and staff in France and other countries. Likewise, the US decision to retain the death penalty has meant that the risk of false convictions also carries the risk of execution of the innocent, and the current US propensity for extremely long sentences also increases the likelihood that exoneration can also lead to the release of a person who is currently incarcerated. Israel and the UK both face the risk of wrongful convictions of suspects in terrorism cases, and in both countries this risk is also ethnically inflected, as attested by case studies of Arab defendants in Israel and Irish defendants in the UK. Contemporary Poland has wrestled with the “rehabilitation” (nullification of convictions) of persons convicted of political crimes during the Communist period. The understandable goal of making a legal break with a repudiated authoritarian regime has proved surprisingly difficult to implement in practice, since “rehabilitation” involves careful sifting of evidence about the exact nature of the crimes (i.e., purely political, or also partially criminal) for which Communist-era defendants were convicted. On the other hand, it appears that in certain contexts it is precisely the most trivial criminal accusations that can present the highest risk of a miscarriage of justice. Thus, Killias argues that in Switzerland the problem of wrongful conviction for minor offenses may actually be far more widespread than wrongful conviction for serious offenses. This is because of a less rigorous adjudication procedure for defendants accused of minor offenses, who are subject to so-called “penal orders,” i.e., summary convictions by a magistrate (pp.150-51).
A key question raised by this book is the extent to which different legal systems are more or less effective in preventing (and where necessary, correcting) convictions of the factually innocent. This is a surpassingly difficult project, and the editors and authors of WRONGFUL CONVICTION are to be commended for taking it on. The difficulty they face begins with the fact that they are attempting to measure a phenomenon which, by definition, is not officially acknowledged. Not surprisingly, some authors are quite reticent about making precise quantitative estimates of the incidence of [*245] wrongful convictions, although Huff does suggest (citing his own previous research) that in the United States around 0.5 percent of all convictions may be “miscarriages of justice.”
Despite the difficulty of such quantitative estimates, one can still ask whether particular national legal particularities, or broad systemic contrasts between the Common Law adversarial tradition and the Civil Law inquisitorial one will tend to lead to greater or lesser success in avoiding wrongful convictions. Here the authors come to different conclusions. In the only chapter that explicitly compares a Common Law system (England and Wales) with a Civil Law one (Germany), Isabel Kessler argues that the adversarial tradition, by separating police and prosecution functions and creating strong incentives for prosecutors to pursue even weak cases, is more likely than the inquisitorial tradition to lead to convictions of the innocent. In his chapter, Marvin Zalman also draws attention to what he views as the inherent weakness of the adversary system, in particular as practiced in the United States: the lack of regulation of the prosecution as a result of separation-of-powers doctrine, and the emphasis on adherence to procedural rights (rather than a search for substantive truth) as the ultimate means of preventing false convictions.
In contrast, Chrisje Brants is somewhat skeptical as to the intrinsic superiority of inquisitorial criminal procedure, pointing to important limitations on the powers of defence counsel and (at least in the Netherlands), the tendency for trial courts to accept the prosecution’s claims in its “dossier” (summary of evidence) rather uncritically. While a canon of inquisitorial procedure requires legal decisions to be justified by juridical reasons and evaluation of the evidence, Brants finds that Dutch courts are often rather slapdash in complying with this requirement (p.174). Thus, the verdict is still out (so to speak) on the question of whether either legal systems or distinct national legal systems are superior to others in preventing miscarriages of justice – and even as to the methodology by which such a comparison could be approached.
If the effectiveness of particular national legal systems in preventing wrongful conviction can be difficult to estimate, the case studies published in WRONGFUL CONVICTION do lead to certain conclusions about the global phenomenon of miscarriages of justice, and how they might be addressed. For example, based on these national case studies, the problem of “confirmation bias” within the legal system – the unwillingness of legal officials to acknowledge mistakes – appears to be almost universal, and a number of the authors draw the conclusion that the institutions that are responsible for evaluating claims concerning wrongful convictions need to be insulated from the rest of the legal system. A further common theme that emerges from these case studies is the issue of resource-management: as is implied in Killias’ study of Switzerland, the more that access to due process has to be rationed for cost reasons, the greater is the risk of wrongful convictions, a point which suggests that simply prosecuting fewer people is likely to lead, all other things being equal, to fewer miscarriages of justice. (One might infer that the highly punitive policies of the United States, [*246] which funnel a myriad of defendants through the criminal justice system by means of plea bargaining, would tend to be particularly susceptible to convictions of the innocent.) Finally, legal actors under a high degree of pressure to produce convictions, especially in particular heinous or spectacular crimes (such as child sexual abuse or terrorism), may be tempted to cut corners in their pursuit of marginal cases. There is no obvious solution to this problem, although a point that emerges from this volume that soberly designed institutions may at least reduce the likelihood of wrongful convictions in moments of hysteria or moral panic.
WRONGFUL CONVICTION should be of interest to scholars of comparative criminal procedure and judicial politics, as well as to those with research interests in the governance of science and technology and the philosophy of law. It is also suitable for use in advanced undergraduate and graduate courses. The national case studies are carefully written to outline the major features of each country’s criminal justice system. Individual chapters or the entire book could be assigned in courses on comparative law and criminal justice.
This volume makes an important contribution to the growing field of comparative criminal justice, and it can only be hoped that these and other authors will follow this research with further efforts to integrate knowledge of the phenomenon of wrongful convictions around the world.
© Copyright 2009 by the author, Matthew Light.