Miscarriages of Justice and the Constitution

Abstract

Accurate fact-finding surely counts as a primary purpose of criminal procedure. Conventional wisdom holds that our system is highly successful at preventing erroneous convictions, but far less successful at preventing erroneous acquittals or dismissals. This asymmetry is commonly attributed to the rights of the accused, particularly the constitutional safeguards in the Bill of Rights. This essay challenges the conventional wisdom on three important fronts. First, while the common belief that many guilty people go unwhipped of justice accords with the facts, the prevailing belief that few innocent people are convicted seems quite improbable. Our criminal justice system, then, needs to do better at both convicting the guilty and acquitting the innocent. Second, despite the Warren Court’s criminal procedure revolution, constitutional law does remarkably little to prevent unjust convictions. The criminal procedure revolution made the Bill of Rights for the most part applicable to the states through the Fourteenth Amendment. The Bill of Rights, however, provides quite inadequate safeguards against unjust conviction. The Fifth