Exceptional Procedures to Correct Miscarriages of Justice in Common Law Systems

Abstract

This paper examines exceptional procedures to correct miscarriages of justice in the common law world. The first and most studied exceptional procedure is the Criminal Cases Review Commission (CCRC). Although the CCRC has been a success in terms of referring over 600 convictions and sentences back to the appeal court, with about 66% of them being overturned, it also rejects over 95% of applications to it. Not surprisingly, it has engendered controversy. One interesting modification of the CCRC idea is North Carolina’s Innocence Inquiry Commission (NCIIC). This commission, created in 2006 reflects the focus in the United States on factual innocence, something that is not required with respect to the CCRC or other exceptional procedures in the common law world. Other models that will be examined in this chapter include a Scottish commission similar to the CCRC, the creation of a second right of appeal based on “fresh and compelling evidence” in two Australian states, and Canada’s 2002 reform of a system that allows the political executive to grant relief on applications for mercy and clemency. The lack of consensus about exceptional procedures facilitates discussion of how the criminal process ought to respond to exceptional demands to re-open convictions and the implications in terms of values and incentives for the procedural and substantive choices that are made. In short, we are in an era of experimentation and innovation that demands comparative analysis.