Wrongful Convictions Research Articles

Reflecting on Wrongful Convictions of Women in Australia: Definitions, Debates and Data

The quashing of Kathleen Folbigg’s convictions in June 2023 caused many to reflect upon the way in which Australian criminal justice systems might judge women. The growing body of research into wrongful convictions of women overseas is developing an understanding of how and why the criminal justice process often fails to consider the experiences of women, incarcerates them – and makes it more difficult for their wrongful convictions to be uncovered and corrected. This article considers that research and applies its findings to known cases of wrongful convictions of women in Australia. The exploratory analysis offered in this article highlights possibilities for further research that will develop a more precise understanding of prosecution processes in Australia, the risk factors for wrongful conviction of women, and the barriers to uncovering wrongful convictions. Understanding these issues will help prevent wrongful convictions and improve pathways to justice.

‘Angry and heartbroken for the failure of the system’

As the number of wrongful conviction media productions released to the public increases, an understanding of their potential impact on viewers is prudent. One such production, When They See Us, depicts the wrongful conviction of five racialized youth, and we investigated the effect of watching this specific wrongful conviction media production on a subset of Reddit users’ online conversations about wrongful convictions and the criminal justice system in general. Following an inductive content analysis of Reddit comments shared to r/WhenTheySeeUs (N = 461), seven coding categories were observed. The ‘Wrongful Conviction Relevant’ coding category was the third most frequently occurring, representing 28% of total comments. Additionally, after conducting a deeper thematic analysis of the ‘Wrongful Conviction Relevant’ comments, the following themes and subthemes were identified: Risk Factors (Individual Characteristics and System Factors), Exoneration and Beyond (Impacts on Exonerees and Changes to System), and the Innocence Movement (Unmet System Expectations and Public Awareness). Users’ ‘Wrongful Conviction Relevant’ comments were situated within the academic literature investigating wrongful conviction correlates, outcomes, and preventative measures, and discussed in relation to viewer reactions to other wrongful conviction media productions.

Plagues in Our Criminal Justice System

This study compared the causes of wrongful convictions in Canada, the United States, the United Kingdom, Australia, and New Zealand to a) determine the main causes of wrongful convictions in different countries, b) determine if the cause(s) of wrongful convictions significantly differ between each country, c) determine what, if any, recommendations arose from these cases, and d) if any of these recommendations could be implemented in a Canadian setting. The main causes were witness perjury, forensic error, and procedural error (Canada), witness perjury (US), witness perjury and police misconduct (UK), police misconduct (Australia), and procedural error (New Zealand). Kruskal-Wallis tests indicated significant differences in distribution between these countries for medicolegal death investigations, bitemark analysis, procedural error, police misconduct, inadequate legal defence, eyewitness misidentification, and witness perjury. Objectives c and d were addressed through a content analysis resulting in the following five themes emerging: lack of accountability, education, accessibility, discrimination, and post exoneration.

Deferred prosecution agreements as miscarriage of justice: An exploratory study of corporate convenience

Deferred prosecution agreements and similar arrangements are practiced in many countries when there is suspicion of corporate crime. It is an agreement based on a negotiation that permits the allegedly guilty party not to undergo a criminal trial if they avoid committing further wrongdoing for a specified period of time. This article reviews such agreements in light of two different situations where the corporation is actually guilty and where the corporation is actually not guilty. An innocent company signing such an agreement suffers from miscarriage of justice. A guilty company on the other hand can restore the convenience of committing corporate crime. This article argues that deferred prosecution agreements violate basic principles of justice. The research suggests that serious fraud offices and other public bodies need to be restored to enable complete criminal prosecution when there are suspicions of corporate wrongdoing. This suggestion is based on the assumption that the underlying problem is law enforcement incompetence at investigating and prosecuting corporate crime.

Forensic Science – Believe It or Not? Public Attitudes toward Forensic Evidence in Israel

AbstractForensic science is undergoing an unprecedented period of reform. Wrongful convictions and errors of impunity have been attributed largely to forensic evidence, and concerns over the scientific foundations of many forensic disciplines have been raised in key official reports. In these turbulent times, it becomes particularly interesting to understand how forensic evidence is understood by the general public. Is it idealized? Are its inherent limitations recognized? The present study seeks to contribute to this growing body of work by addressing two main questions: (1) How does the general public perceive forensic science?; (2) How correct are individuals in their evaluations of specific types of forensic evidence? A survey of the Israeli public reveals considerable trust in the ability of forensics to reliably identify the perpetrator of a crime, although less trust is expressed when questions lead respondents to consider specific stages in the forensic process. Furthermore, respondents were often incorrect in their evaluations of the reliability of specific types of forensic evidence. The implications of these findings for police legitimacy, the practice of the criminal justice system, and the future study of attitudes toward forensic evidence, are discussed.

The Zemiological Afterlife of Wrongful Conviction: Spoiled Identity, Repair and Survivorship

Building on the recent global interest in ‘innocence projects’, this article critically examines the various harms experienced by the wrongfully convicted after their release from prison. Locating itself within the zemiology literature, it uses the memoirs of a number of wrongfully convicted persons to conduct a narrative victimological critique of social harms that are often unacknowledged in policy and practice around the reintegration of the wrongfully convicted and in media and societal discussion of their experiences. Insights from these memoirs, it is argued, problematise the various forms of repair offered to the wrongly convicted because these often compound rather than alleviate particular post-release social harms. However, the first-hand accounts contained within their memoirs also illustrate how, far from being caught in a state of passive victimhood, the wrongfully convicted often regain agency through activism and telling their story.

THE CONSEQUENCES OF WRONGFUL TRADING FOR THE COOPERATIVE’S DIRECTORS, PARTICULARLY THE PROHIBITION FROM PERFORMING MANAGEMENT FUNCTIONS AND THE LOSS OF CREDITS IN THE INSOLVENT COOPERATIVE

The applicability of the Portuguese legal regime to cooperatives may raise specific questions, particularly with regards to the effects of wrongful trading for their directors. Namely, the disqualification of the cooperative director and the loss of any credits he may have towards the cooperative are to be considered, because of the specificities of their implementation in the context of cooperatives.
 In Portugal, cooperatives are subject to insolvency and to the Portuguese insolvency legal regime (Código da Insolvência e da Recuperação de Empresas:CIRE). But the applicability of this regime to cooperatives may raise specific questions, particularly with regards to the effects of wrongful trading for theirdirectors.
 Under Portuguese cooperative law (Código Cooperativo: CCoop.), one of the consequences of wrongful trading is, inevitably, the loss of mandate of convicted board members. But there is no eligibility requirement relating back to this, so nothing seems to prevent an individual previously convicted of wrongful trading from taking on these functions in a cooperative. Under Portuguese insolvency law (Código da Insolvência e da Recuperação de Empresas: CIRE), there may be a prohibition from performing management functions for a period that can range from 2 to 10 years (because of wrongful trading). In this case, the prohibition safeguards the position of the cooperative towards the election of a previously convicted individual during that period. But how can we solve the problem in any other cases? And can this conviction also constitute grounds for exclusion of a member from the cooperative? If so, on what specific grounds and under what terms?
 There is yet another problem concerning the consequences of a wrongful trading conviction of a director under Portuguese insolvency law, in the case of acooperative insolvency. When a director has been convicted of wrongful trading as part of the insolvency of the cooperative they manage, one of the consequences of such conviction is - pursuant to the CIRE - the loss of any credits they might have on the insolvent cooperative. Since they are mostly simultaneously a cooperator, what is the scope of this conviction with regards to any credit rights they might have as a cooperator, upon the dissolution and liquidation of the cooperative?
 In this study, following an analysis of the legislative solutions provided in Portugal, we try to provide an answer to these questions. As there are no specific answers in the doctrine and no case-law treatment, we will considerer the basic principles and rules of the insolvency law as well as the fundamental cooperative principles.

Do inconclusive forensic decisions disadvantage the innocent?

Two experiments examined the potential for inconclusive forensic decisions to disadvantage the innocent. Both experiments tested the hypothesis that inconclusive decisions produce more incriminating legal judgments than do clearly exculpatory forensic decisions. Experiment 2 also examined whether this hypothesized effect conformed to a confirmation bias, a communication error, or perceptual accuracy. In Experiment 1 (N = 492), a forensic expert testified that physical evidence recovered from a crime scene either matched or did not match a suspect's evidence or produced an inconclusive result. In Experiment 2 (N = 1,002), a forensic expert testified that physical evidence recovered from a crime scene either matched or did not match a suspect's evidence, produced an inconclusive result, or was unsuitable for analysis. A fifth condition omitted the forensic evidence and expert testimony. The inconclusive decision produced less incriminating legal judgments than did the match forensic decision (|d|average = 0.96), more incriminating legal judgments than did the no-match forensic decision (|d|average = 0.62), and equivalent legal judgments to the unsuitable decision (|d|average = 0.12) and to legal judgments made in the absence of forensic evidence (|d|average = 0.07). These results suggest that participants interpreted the inconclusive decision to be forensically neutral, which is consistent with a communication error. The findings provide preliminary support for the idea that inconclusive decisions can put the innocent at risk of wrongful conviction by depriving them of a clearly exculpatory forensic decision. (PsycInfo Database Record (c) 2024 APA, all rights reserved).

The standard of proof and crime prevention: A theoretical and empirical analysis

Since fallibility is unavoidable, any criminal justice system must decide how the risk of error should be distributed. The traditional view holds that a false conviction is morally far worse than a false acquittal. Therefore, erroneous outcomes must be distributed asymmetrically to avoid, to the highest possible extent, convicting the innocent. This article casts doubts on this assumption. It postulates that the traditional view defends a markedly asymmetrical distribution of erroneous outcomes, because it neglects the preventive cost of acquitting the guilty. After a theoretical and empirical analysis, this article concludes that crime prevention must be considered when establishing the level of the standard of proof; and, when it is considered, pro tanto reasons emerge to adopt a weaker standard than that normally deemed appropriate in criminal cases. The article also examines three possible reasons why preventive arguments are not considered when establishing the criminal standard of proof. It concludes that ignoring the consequences of the standard of proof on crime cannot be justified by the distinction between statistical and individualised victims, or by that between distribution and concentration of harm, or ultimately by that between action and omission.

Who’s watching Mr Big? Scenario operations and induced confessions

ABSTRACT Introduced in Australia in the late 1990s, the Mr Big investigative technique is a complex undercover police operation structured around a fictional criminal gang, which is created to build rapport with the suspect of a serious crime. The suspect is encouraged to confess to the crime to benefit from advantages and protection offered by the gang, including the possibility of influencing the outcome of any prosecution. Challenging Mr Big confessions in Australia has been unsuccessful. The lack of transparency and need for deception inherent in covert operations, however, exposes a potential for fabricated and coerced confessions and the risk of wrongful convictions. Scenario operations are not directly scrutinised by independent oversight bodies and an examination of reported cases suggests that Australian Mr Big operations do not involve covert police in unlawful activities that might been scrutinised under controlled operations regimes. This is a concern given a cultural predisposition within Australian law enforcement towards secrecy, rank-closing, and resistance to examination. We explore options for ensuring the safety of Mr Big convictions, including implementation of robust, independent oversight mechanisms, amendments to evidentiary rules about inducement-based confessions, and revised warning regimes to include direction on the need for caution in accepting scenario confessions.

Do prosecutors induce the innocent to plead guilty?

AbstractThe implications of a strategic model of plea bargaining are threefold. First, plea bargaining unequivocally increases wrongful convictions. Next, partial bans on plea bargaining reduce the frequency of wrongful convictions, and the reduction rises with the strength of the ban. Lastly, police share an important role in minimizing wrongful convictions.

Жасанды интеллектіні Арбитражда қолданудың перспективалары

The article is devoted to the possibilities and problems of application of artificial intelligence (AI) systems in the arbitration of the Republic of Kazakhstan, i.e.: in forensic examination, analytical and organizational work, adjudication, interpretation and analysis of law, as well as control over the adoption and execution of court decisions. In the course of the research the foreign experience of using artificial intelligence systems in the judicial systems of Great Britain, the USA and the Netherlands was analyzed. In addition, three main directions of application of artificial intelligence in judicial proceedings were identified. Based on the application of artificial intelligence in practice, it was determined that the use of the European Charter of Ethics in the legislation of judicial and law enforcement systems leads, as predicted by researchers, to positive and negative consequences of use. In addition, it was determined that the use of artificial intelligence in judicial proceedings can optimize the judicial system, prevent subjective attitudes, corruption and possible miscarriage of justice, and risk is necessary. These include: compliance with the ethical principles of artificial intelligence, the impossibility of ensuring transparency and verifiability of court decisions made by artificial intelligence, their legislative non-approval and non-compliance with the requirements of law, protection of personal information. In conclusion, recommendations are given to prevent the negative impact of the introduction of artificial intelligence in arbitration.

Naknada nematerijalne štete zbog duševnih bolova nastalih neosnovanom osudom i neosnovanim lišenjem slobode

Compensation for non-economic damages, the debate over its justification, and the adequacy of compensation awarded for harm to non-economic goods have been contentious issues among domestic legal theorists for decades. The provisions of the 1978 Law on Obligations resolved this debate by introducing the right to monetary compensation for non-economic damages in explicitly enumerated cases. The aim of the authors is to use appropriate scientific methods to demonstrate how failures by state authorities, specifically the police and judicial bodies, can cause non-economic damage to individuals through miscarriages of justice and false imprisonment. Freedom is a fundamental human right, guaranteed by the Constitution, laws, and ratified international documents. This raises the question of how, and to what extent, a wrongful conviction or unlawful deprivation of liberty violates this fundamental right, and what legal remedies are available to the victim. The focus of the paper will be on the legislation of the Republic of Serbia, as well as the views and interpretations in legal theory and in practice regarding the victim's claim for monetary compensation for harm to non-economic goods, such as reputation and honor.

‘Behind bars, beyond borders’: solidarity in the face of the criminalisation of a social work human rights defender

This commentary piece is written by Bilal Yildiz, a social worker in Turkey and a human rights defender. It tells the story of his arrest on trumped-up charges and the continuing threat to his freedom as a result of his social work activities. Bilal graduated from Istanbul University, Department of Social Work, and continues his master’s programme in human rights law at Istanbul Bilgi University. He has been working as a social worker at the Human Rights Foundation of Turkey since 2016. In addition to his professional work, he has been active in many professional and human rights organisations. He is currently a board member of the Association of Social Workers, a member of the Human Rights Association, a member of the Kurdish Studies Association and a founding member of the Migration Monitoring Association.

Examining the Impact of False Confessions and Wrongful Convictions on Criminal Justice Reform

Examining the Impact of False Confessions and Wrongful Convictions on Criminal Justice Reform

Interpretation of the Manifest Injustice Provisions of the Civil Code

Interpretation of the Manifest Injustice Provisions of the Civil Code

Femininity on trial: decoding female violence in true crime documentary

ABSTRACT This article explores the treatment of criminally accused women and girls in 2000s crime documentaries. I argue that although the HBO documentaries I Love You, Now Die and Beware The Slenderman challenge established tropes associated with criminally accused women and girls, the documentaries do not disrupt patterns within patriarchy that penalize and vilify nontraditional embodiments of femininity. The 2000s brought a new era of representation for criminally accused men. The emergence and popularity of injustice narratives positioned true-crime documentaries as agents of social change. Androcentric films facilitated in-depth exposés that highlighted wrongful convictions and systemic corruption in the American criminal justice system. Beware The Slenderman and I Love You, Now Die challenge portrayals of allegedly violent women and girls as mentally ill, inherently evil, and particularly susceptible to corruption. The documentaries awareness of established tropes signals a potential reevaluation of patriarchal understandings of female crime. However, I Love You, Now Die and Beware The Slenderman reinforce correlations between criminality and gender performance. Unlike the male-centered injustice narratives of the 2000s, crime documentaries featuring accused women and girls normalize patriarchal gender roles rather than examine systemic failings.

Emancipating from (Colonial) Genealogies of the Techno-social Networks or Reversing Power Relations by Turning the Predator into Prey in Jordan Peele’s Nope

The article aims to map the contemporary techno-social networks, together with delineation of the algorithmic governmentality, computational unconscious, the epistemic structure of the Eurocentric matrix of power haunted by its own repetition of the constant abyss of horrors, only to search for gestures of resistance. Gestures of resistance, contrary to the false conviction of capitalist realism, can be found everywhere, including in Jordan Peele's Nope (2022). Through a variety of motifs, themes, and cultural and cinematic references, Peele creates a resistance image, i.e., an image that resists the historical trajectory of the violence of the digital colonial matrix of knowledge. In particular with Nope, in which the history of racial violence is disentangled by evoking the relation between the entanglement of capital and epistemic violence embodied in an all-devouring predator UFO. But Nope is also about visualizing silenced histories. Indeed, to strive to capture UFO with the camera is to break away from modernity as a totalizing onto-epistemology and in this register generating a false universal subject of a Man.

Immediate and repeat interrogative suggestibility in a sample of adolescents with fetal alcohol spectrum disorder

AbstractIndividuals with fetal alcohol spectrum disorders (FASD) are more likely to be involved with the criminal justice system (CJS) than neurotypical individuals. Interrogative suggestibility is theorised to be a weakness in this population; this is the first experimental evidence of interrogative suggestibility in adolescents with FASD. Fifty‐two participants (aged 11–16 years) completed the Gudjonsson Suggestibility Scale immediately and after 1 week; the Wechsler Intelligence Scale for Children; and the Behavioural Rating of Executive Function. Compared to the control group, individuals with FASD were more vulnerable to leading questions, negative feedback and evidenced significantly higher suggestibility, immediately and after 1 week. A significant correlation was found between immediate and repeat suggestibility at 1‐week follow‐up. Poorer memory recall, lower intelligence quotient and higher impulsivity were also observed in the FASD population. The results indicate the importance for the CJS to establish whether suspects, witnesses, and victims of crimes may have been impacted by prenatal alcohol exposure since this is a significant source of vulnerability that could lead to false confessions or miscarriage of justice.

Imagining Freedom in Slavery’s Future: Iron City ’s Fugitive Othertime in the US Carceral Empire-State

Abstract: This essay examines Black political activism during the Korean War in publications that defined their present moment as slavery’s future and characterized slavery and antiblack racism as part of an ongoing war against Black people, connected to US empire’s wars abroad. In particular, it reads Lloyd Brown’s novel Iron City (1951), about four Black men incarcerated on trumped-up charges, alongside Paul Robeson’s Freedom newspaper (1950–55) and William Patterson’s We Charge Genocide (1951). Centering on four Black men serving time , the novel demonstrates that one tactic in the war against Black freedom is through the control of time and shows a connection between incarceration and slavery by revealing the disciplinary mechanism of time in service of US empire. Rather than acquiesce to the omnipotence of empire’s time and endless wars, however, Iron City , exemplifying the Black radical thought of the 1950s, imagines a different future, which I term fugitive othertime . Building on Saidiya Hartman’s theorization of a “fugitive elsewhere ,” “an imagined place [that] might afford you a vision of freedom,” I argue for reading Iron City for its dream of a fugitive othertime, as an imagined temporality in which that elsewhere might exist.