12.1 Introduction

Researching miscarriages of justice can be a depressing experience. It requires reading many stories about people who have been wronged by the justice system and who, along with their loved ones, have suffered irreparable harms as a result. Too often, they have to wait decades for a remedy. One is left worrying about how many people are left behind and never receive any remedy at all. Some days, delayed justice even for some seems like a good thing. Other days, it begs questions about whether the survival stories of the “lucky” are being used to legitimate systems that inflict continued injustice on the less so. The latter scenario may depend on one’s speculations about the extent of unremedied injustice. Are we only remedying the tip of the iceberg of injustice or are we remedying a good portion of it? The sad reality is that we may never know.

Although the stories of the wrongfully convicted may seem criminologically and sociologically unsophisticated (Leo, Reference Leo2005), we continue to be attracted, if not addicted, to them (Borchard, Reference Borchard1932; Grisham and McCloskey, Reference Grisham and McCloskey2024; Roach, Reference Roach2025a; Wells and Leo, Reference Wells and Leo2008). There is an obligation to learn from these individual tragedies in order to try to minimize the risks of future ones.

This book has drawn heavily on registries of wrongful convictions developed in the last decade in the United States, the United Kingdom, Canada and Europe that make it easier to learn and systemize the lessons from remedied cases. I hope that similar registries are developed in other countries. Any responsible researcher must, however, acknowledge that data sets of remedied wrongful convictions beg difficult, if not impossible to answer, questions about the extent of unremedied wrongful convictions. It should not be assumed that the unknown and unremedied injustices have identical characteristics to the remedied ones (Hamer, Reference Hamer2023).

The registries, all developed by university-based researchers, make no claims about whether or not the victims of wrongful convictions were factually innocent. Some worry that this may dilute their meaning and importance (Leo, Reference Leo2017a), but I disagree. Most criminal justice systems do not have a third verdict of innocence (Picinati, Reference Picinati2022; R. v. Mullins-Johnson [2007] OCA 720; R. (Adams) v. Secretary of State [2011] UKSC 18). Here, as in many things, the United States is exceptional but even it does not have a third verdict of innocence or even a clearly recognized right to claim innocence under its 1789 federal constitutional bill of rights (Herrera v. Collins, 506 US 390 1993). Claims of factual innocence are useful in media and political discourses and in supporting the work of innocence organizations that often rely on charitable funding. Care should, however, be taken before entrenching innocence claims in law, especially criminal law, where they have a potential to undermine the presumption of innocence and other fair trial rights.

Although some continue to assume that guilty pleas are mostly accurate (Cassell, Reference Cassell2018), these assumptions are widely optimistic given the American registry’s mass exoneration registry and the UK’s Post Office scandal, which in 2024 resulted in exoneration legislation for 700 to 900 small business people, most of whom pled guilty to lesser offences when they were charged with stealing from the Post Office because of a faulty computerized accounting system. Many who pled guilty did not respond to offers from the CCRC to help them. The majority of those who are exonerated in American states that have compensation legislation do not even apply for compensation (Gutman, Reference Gutman2025). We do not have a reliable way to determine how many people simply pled guilty and give up on justice systems that have failed them.

The stories in both scholarship and culture that we tell about the wrongfully convicted are stories of unbelievable courage and persistence (Roach, Reference Roach2017a; Stratton, Reference Stratton2015, Reference Stratton, Akrivos and Antoniou2019). Again, these stories are true for the comparatively “lucky,” but they leave many behind. Unknown numbers of people who have suffered miscarriages of justice simply give up on the legal systems that have injured them. Some might argue that we should not worry about such people. Most crime victims do not report the crimes they suffer to the police (Roach, Reference Roach1999b). But there is a difference: miscarriages of justice are caused by the state, while crimes are generally inflicted by private actors. States make promises not to convict the innocent that they do not keep. Even if it is inevitable that such promises will sometimes be broken (Nobles and Schiff, Reference Nobles and Schiff2000), it does not mean that we should give up in trying to prevent or remedy wrongful convictions (Roach, Reference Roach2006) This is especially so when the risks of miscarriages of justice are not spread evenly and fall on the most disadvantaged (Dworkin, Reference Dworkin1985). If many of the English sub-postmasters gave up on an English justice system that had created new remedial institutions and offered them more generous compensation that other wrongfully convicted people, it is very disturbing to think about how many false guilty pleas are made under China’s new system to encourage guilty pleas and under India’s laws that do not allow appeals from guilty pleas or summary trials. We should honour justice for some but never forget that it is only justice for some.

12.2 The Importance of Definitional and Conceptual Clarity

The comparative study of miscarriages of justice and wrongful convictions is complicated by a lack of agreement about basic terms. As suggested in Chapter 2, the frequent use of the term “miscarriage of justice” in British scholarship compared to “wrongful conviction” in American scholarship is not simply a matter of customary usage. American and British scholars and judges are often talking about two different things. This can lead to confusion, lack of understanding and occasionally conflict (Naughton, Reference Naughton2010, Reference Naughton2013). These two terms should not be used interchangeably even though they frequently are.

The term miscarriage of justice as defined by both courts and commentators refers to a broader range of injustice than a wrongful conviction or the conviction of an innocent person. Miscarriages of justice can include unfair trials and other rights violation including unlawful forms of detention. It is, however, unhelpful to characterize so-called wrongful acquittals as a miscarriage of justice of justice, as done recently by the English Law Commission (Law Commission, 2025: 4.14). The state has much more direct responsibility for wrongful detentions and unfair trials than for failures to convict the factually guilty. The Law Commission recognizes this fact when it limits its classification of wrongful acquittals as miscarriages of justice to “legal error or misconduct” (Law Commission, 2025: 4.14). Still in a liberal criminal law that adheres to the presumption of innocence, proof beyond a reasonable doubt and the traditional preference for wrongful acquittals over wrongful convictions, it is best not to characterize the former as a miscarriage of justice. The presumption of innocence is under populist siege (Garrett and Mitchell, Reference Garrett and Mitchell2023; Xiong, Greenleaf and Goldschmidt, Reference Xiong, Richard and Jona2017). Nevertheless, it remains a cherished legal right in free societies.

Care must also be taken when using the term wrongful conviction. A wrongful conviction should be distinguished from proven, factual, actual or obvious innocence even though the terms are often equated, especially in American usage. A conviction can be wrongful if it is determined to be unsafe or unreasonable even if accused have not or cannot prove their innocence. Again, the Law Commission (2025: 4.15) has muddled this distinction when it concluded that for many “the conviction of a factually innocent person” is “the paradigmatic example of a miscarriage of justice” and by failing to define a wrongful conviction even while frequently using that term. The English commitment to a broader concern about miscarriages of justice seems especially fragile and precarious these days.

The quest for conceptual clarity is also frustrated by Article 14(6) of the ICCPR, which refers to miscarriages of justice but only provides a right to compensation for a narrow subset of wrongful convictions, namely, convictions that have been affirmed by a final decision and are subsequently overturned on the basis of a new or newly discovered fact that shows conclusively that there has been a miscarriage of justice. In addition, there is no compensable miscarriage of justice when the wrongfully convicted are proven to be wholly or partially responsible for the non-disclosure of the exonerating fact. This is a much narrower definition of wrongful convictions than used by most registries, which can include wrongful convictions corrected on a first or subsequent appeal through the admission of new evidence relevant to guilt or innocence. The registries also include wrongful convictions caused by false confessions or false guilty pleas even though some may argue that this is a form of contributory fault (Cassell, Reference Cassell2018) that might disqualify the wrongfully convicted for compensation under Article 14(6) and American compensation laws.

As discussed in Chapter 11.5, an innocence requirement proposed by Israel and supported by the US and the UK was rejected in 1959 during the drafting of Article 14(6). Nevertheless, proposals for an international right to claim innocence (Garrett, Helfer and Huckerby, Reference Garrett, Helfer and Huckerby2021) are being made and could gain support. If adopted, they would blur and perhaps eliminate the differences between the wrongful convictions that can be compensated under Article 14(6) and proven factual innocence. This would result in a more severe and populist rationing of justice. This may be in accord with the spirit of our times (Garland, Reference Garland2001). Nevertheless, it would still be regrettable.

12.3 The Rationing of Justice

The use of the different, overlapping and slippery terms, miscarriages of justice, wrongful convictions and innocence is a sign that scarce resources are being covertly rationed and balanced against competing interests including the need to preserve the finality of convictions and to conserve the funds that are spent on compensation (Calabresi and Bobbitt, Reference Calabresi and Bobbitt1978; Nobles and Schiff, Reference Nobles and Schiff2000; Roach, Reference Roach2024a). Insisting on conceptual clarity is not solely of academic interest. It is necessary to understand a move toward the popular “lay” (Naughton, Reference Naughton2013) concept of factual innocence and the migration of civil and administrative concepts used for compensation into the criminal law. Careful attention to how legal systems come to embrace factual innocence reveals much. In the United States, proven innocence migrated from compensation laws to successful efforts to curtail federal habeas corpus relief based on optimistic deference to American state criminal justice systems (Bator, Reference Bator1963; Friendly, Reference Friendly1970).

Consistent with Guido Calabresi’s and Phillip Bobbitt’s “tragic choice” analysis, societies are reluctant to openly admit that they are rationing social goods whether they be kidneys for transplant or justice for those who suffer miscarriages of justice. Calabresi and Bobbitt understood that different societies make tragic choices in different ways that accommodate each society’s history, values and concerns and that these choices can change over time. As seen in Chapter 5.7, the Blair government in England attempted in 2006 to limit appeals from convictions to proven innocence but backed down in the face of opposition from most legal groups including the English CCRC. At the same time, the Cameron government succeeded in 2014 in requiring proven innocence for compensation. The latter move conserved resources devoted to compensating miscarriages of justice (Law Commission, 2025; Quirk, Reference Quirk, Jasinski and Kremens2023). An England that in 2005/6 paid £14,682,776.36 to thirty-one victims of miscarriage of justice paid only £2,380,700 over the eight years from 2016 to 2024. From 2017 to 2019 and again in 2020–2021, it paid nothing because no one could establish their innocence (Law Commission, 2025: 16:18). It remains to be seen whether a Labour government elected in 2024 will take a more generous approach. It is disappointing that the Law Commission (2025: 16.86) has recommended only the minimalist reform of requiring claimants to still prove their factual innocence on a balance of probabilities standard as opposed to the present and unrealistic standard of proof beyond a reasonable doubt. The rationing of scarce resources is an endless democratic project. I wrote this book largely because of my concerns that proven innocence requirements may prove increasingly attractive in many parts of the world and my belief that, outside of the US and China, proven innocence will provide justice for less people, not more.

12.4 The Populist but False Allure of Proven Innocence

I am sceptical about proven factual innocence for both positive and normative reasons. Positively, I recognize it as a powerful and populist concept. Yale law professor Edwin Borchard (Reference Borchard1914, Reference Borchard1932) was well aware that many European states provided compensation for the wrongfully detained, but he shrewdly chose to advocate for compensation only for those who could prove they were innocent and not at fault for their wrongful convictions. He was so successful that President Roosevelt gave him a signing pen when Congress enacted its compensation law in 1938 (Zalman, Reference Zalman2020). As some of Borchard’s contemporary critics noted, however, this compensation law enacted during the Great Depression was a “puny” law (Hale, Reference Hale1932). It compensated only the few that could prove their innocence and lack of fault for their wrongful convictions.

Much has changed since Borchard’s pioneering work (Borchard, Reference Borchard1912; Reference Borchard1932), and the United States is the world’s most generous country even though it only compensates less than half of exonerees (Gutman, Reference Gutman2025). What has not changed is the need for the wrongfully convicted to prove their innocence and that they were not at fault for their wrongful conviction in order to obtain statutory compensation. Once proven innocence is accepted, more generous rationing of justice may be doomed. The insistence on proven innocence may also spread from compensation to post-conviction relief. It could even spread into criminal trials themselves, especially if the presumption of innocence is denigrated as an elitist and liberal legal conceit that is not supported by public opinion.

In the 1980s, liberal Justices on the United States Supreme Court such as Justices William Brennan and Thurgood Marshall resisted reducing miscarriages of justice to proven innocence. Today, however, the few remaining liberal Justices such as Justices Sonia Sotomayor and Ketanji Brown Jackson are struggling to maintain factual innocence exceptions from restrictions that both legislatures and courts have imposed on post-conviction relief (Jones v. Hendrix 599 US 465, 2023).

Proven innocence looks good as societies become more punitive. The obviously innocent person who has been wrongfully imprisoned for thirty or forty years is the only person who can compete with crime victims for popular sympathy and political attention (Roach, Reference Roach1999a). But the common focus on factual guilt and factual innocence diminishes the legal rights of the accused (Packer, Reference Packer1968).

Proven innocence will only benefit the few. Barry Scheck and Peter Neufeld, the founders of the Innocence Project, wrote in 2000 that “an innocent’s person’s hope of getting access to the evidence for [DNA] testing is a crap shoot.” They wisely wrote that DNA exonerations provided a limited and random window into wrongful convictions that would close when police used DNA testing in the minority of crimes where DNA testing was possible (Scheck, Neufeld and Dwyer, Reference Scheck, Neufeld and Dwyer2000: xx).

It is doubtful whether the United States Supreme Court today would grant an original writ of habeas corpus, as it did in 2009, to give Troy Davis an opportunity to prove his innocence (Re Davis, 130 S.Ct. 1 2009). A majority today might agree with Justice Scalia’s dissent that even if Davis could prove he was innocent, Federal courts would be powerless to intervene because “this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent” (Re Davis, 130 S.Ct. 1: 6). American extra-legalism in which a complex legal system is deployed to defeat justice and accountability (Roach, Reference Roach2011: 163–169) is stronger today than ever (Trump v. United States 603 US 593, 2024). It often only holds out an illusion of justice and rule of law accountability for the vast majority of the wrongfully convicted.

The Federal court that heard Davis’s claim decided he had not proven his innocence by clear and convincing evidence. This failure, as well as similar failure in a number of cases referred to the courts by the North Carolina Innocence Inquiry Commission, has not yet caused the American innocence movement to rethink proven innocence. One factor may be a lack of understanding of comparative experience. The courts in many other democracies including England and Canada would have likely found Troy Davis’s conviction to be unsafe or unreasonable. The fact that Georgia executed Troy Davis to international condemnation also seems not to have swayed the majority of Americans. Trump’s Make American Great Again movement is inspired by Justice Scalia’s mocking of “sanctimonious” foreign criticism “of America’s death penalty, as somehow unworthy of a civilized society” while concluding that the risk of executing the innocent has been reduced in the United States to “an insignificant minimum” (Kansas v. Marsh 548 US 163, 187, 199, 2006). As soon as he assumed the Presidency for a second term, Trump issued an executive order encouraging the states to use the death penalty.

But proven innocence is attractive outside the United States. As discussed in Chapter 5.7, British Prime Minister Tony Blair tried but failed to limit criminal appeals to innocence, but David Cameron’s Conservative government was successful in 2014 in effectively requiring proof of innocence before the wrongfully convicted could obtain compensation. As a rationing device, proven innocence has been wildly effective and payments to the wrongfully convicted have drastically plummeted in England (Law Commission, 2025: 16.18; Quirk, Reference Quirk, Jasinski and Kremens2023). The new legislation has even resulted in a more polite English version of innocence denial that has long existed in the United States (Bazelon, Reference Bazelon2018a). For example, Victor Nealon was denied compensation despite exclusionary DNA testing. To add insult to injury, he lost a challenge to the new proven innocence requirement over strong dissents in both the United Kingdom’s Supreme Court and the Grand Chamber of the European Court of Human Rights (Nealon v. the United Kingdom 2024 ECHR 514). As a positive matter of political science, proven innocence is politically popular. Once accepted, it may endure and spread.

Normatively, proven innocence is in tension with both the presumption of innocence and many other due process rights enshrined in international and domestic law since World War II. In 2017, Justice Ruth Bader Ginsburg recognized the basic logic that any requirement to prove innocence fails to give the convicted person the benefit of a reasonable doubt (Nelson v. Colorado 581 US 128). In 2011, Lady Barbara Hale stated that if the accused “does not have to prove his innocence at his trial, it seems wrong in principle that he should be required to prove his innocence” to obtain compensation (R (on the application of Adams) v. Sec of State [2011] UKSC 18 [116]). Unfortunately, she retreated from this position, not on principle, but on the accurate prediction that the European Court of Human Rights would not declare the Reference He2014 English law to be inconsistent with the presumption of innocence (Nealon v. United Kingdom, 2024 ECHR 514). As a result, all of Europe could now require proven innocence for compensation in a manner that would be consistent with the European Convention on Human Rights. Once rights such as the presumption of innocence are abandoned by some countries, the backsliding may inspire and be emulated by others.

One cannot venerate factual innocence without also honouring factual guilt. In both England and Australia, double jeopardy protections have been eroded by allowing acquittals to be reopened in the face of new and compelling evidence of factual guilt. As discussed in Chapter 9.3, the same appears to be the case in China (Yue, Reference Yue2021). Most Australian states have obtained a degree of parity by now allowing the accused as well as prosecutors to bring second and subsequent appeals on the basis of fresh and compelling new evidence. Western Australia and Queensland have in new legislation made explicit their preference for recognizing factual innocence. But as Australian professors and campaigners Bibi Sangha and Bob Moles, Reference Sangha and Moles2015 have warned, it was a mistake to copy the demanding provisions for reopening acquittals and apply them to reopening convictions. Very few have benefited from these new rights (Ruyters and Bartle, Reference Ruyters and Bartle2024). As suggested in Chapter 5.6.5, they can be seen as a neo-liberal alternative to creating a state body with public funds and public powers to find the new evidence that is generally required to correct a wrongful conviction. Alas, the neo-liberal approach has its supporters. Republican prosecutors and legislators in North Carolina are attempting to abolish the North Carolina Innocence Inquiry Commission, which served as a public CCRC body since 2006, albeit one that requires proof of factual innocence and operates on the lowest budget of all CCRCs in the world.

A common focus on reopening acquittals and convictions in the face of fresh and compelling evidence of factual innocence or guilt erodes the preference for individual liberty that traditionally has justified the asymmetry of a liberal criminal law’s “golden thread” (Woolmington v. DPP [1935] A.C. 462 (H.L.)) of the presumption of innocence and the need to prove guilt beyond a reasonable doubt. It undermines a liberal criminal law based on restraint and a recognition that the state bears special responsibility for wrongful convictions and should prefer wrongful acquittals to wrongful convictions. Alas, this liberal view is losing ground. Public opinion polls throughout the world suggest that majorities do not accept a Blackstonian preference for wrongful acquittals over wrongful convictions (Garrett and Mitchell, Reference Garrett and Mitchell2023; Xiong, Greenleaf and Goldschmidt, Reference Xiong, Richard and Jona2017). This has inspired academic arguments that remedying or preventing more wrongful convictions would result in too many wrongful acquittals (Cassell, Reference Cassell2018) even when 40 per cent of American exonerations as of the end of 2024 involve imagined crimes that never happened (National Registry; Roach, Reference Roach2023a). It has also inspired academic arguments that the state should have a lower burden of proof for proving at least some crimes (Xiong, Reference Xiong2022).

The focus on factual innocence has eroded support not only for the presumption of innocence but also for other due process rights. Before it was adopted by the Innocence Project (Scheck, Neufeld and Dwyer, Reference Scheck, Neufeld and Dwyer2000), factual innocence was invoked as a means to curb the perceived excesses of the liberal Warren Court (Bator, Reference Bator1963; Friendly, Reference Friendly1970). The conservative American scholar Paul Bator combined a restrictive focus on factual innocence with an argument that Federal courts should defer to state courts on the wildly optimistic and complacent assumption that Brown v. Board of Education 347 US 483 (1954) had somehow cured the anti-Black racism of the Jim Crow era that had made the Warren Court willing to extend federal habeas corpus and other due process rights to the states (Bator, Reference Bator1963). The failure of the Warren Court’s due process (Packer, Reference Packer1968) revolution to prevent wrongful convictions (or stop police, prosecutorial or forensic misconduct) has led American scholars across the political spectrum to be disenchanted with due process (Bradley, Reference Bradley1993; Stuntz, Reference Stuntz2011). There is much truth to these critiques. In my view, however, they are a reason for expanding due process to take into account the many new lessons that can be learned from remedied wrongful convictions (Findley, Reference Findley2009a; Roach, Reference Roach2006). We should not abandon due process just because it has not prevented wrongful convictions.

Alas, tragic choices analysis suggests that it may be a strategic mistake to aim for too much justice. As discussed in Chapter 10.6, the Law Commission of India (2018) made a compelling case for why limiting compensation to proven innocence or even to those wrongful convictions qualified for compensation under Article 14(6) of the ICCPR would be too restrictive in a country where more than three-quarters of all prisoners are detained pending trials. It proposed that compensation be available to those wrongfully detained and prosecuted and to those whose wrongful convictions were overturned on the first appeal. The Commission tried to ration the resources that would be devoted to compensation by proposing that those who were wrongly prosecuted or convicted establish state fault in a separate court (Roach Reference Roach2024a). Despite this attempt at rationing, the Modi government rejected the Commission’s proposed reforms when it enacted new criminal justice laws at the end of 2023 that have increased the risk of wrongful convictions. The Modi government has promised that it will use these laws to ensure that India has the world’s highest conviction rates within a decade (India Ministry of Home Affairs, 2025), something that would require it to surpass China’s 99 per cent plus conviction rate (Miao, Reference Miao2024). It is a mistake to assume that progress with respect to miscarriages of justice is linear or inevitable.

The wrongfully detained are likely a far larger group than the wrongfully convicted. For example, Italy paid €819 million to 30,017 people who were wrongly detained between 1992 and 2021, compared to €76 million to 214 people who were wrongly convicted during that same time period (Lonati, Reference Lonati, Jasinki and Kremens2023: 52, 54). This may explain why, as discussed in Chapter 11.5, there has been significantly more global compliance with Article 14(6) of the ICCPR compared to the broader right to compensation for all forms of unlawful detention under Article 9(5). Some miscarriages of justice matter more than others in a world that provides justice only for some. This also raises concerns that compensation for the wrongfully convicted, though due on the merits, may be a form of wrongful conviction washing that legitimatizes criminal justice systems that continue regularly to produce miscarriages of justice.

A proven innocence approach may be the best that can be achieved in mass imprisonment societies such as the United States and China, the world’s two countries who imprison the most people. The success of the American innocence projects in a political environment that is hostile to those suspected and convicted of crime is a testament to the power and popularity of proven innocence as well as to the energy and talent of a small group of lawyers (Norris, Reference Norris2017; Roach, Reference Roach2024b). So too in China, the undeniable injustice of three well-publicized “back from the dead” cases (Warden, Reference Warden2013) generated some reforms. At the same time, some Chinese scholars have cautiously raised concerns that a proven innocence approach may migrate from the compensation context into the criminal law context and undermine nascent attempts in that country to recognize the presumption of innocence (He, Reference He2018; Jiang, Reference Jiang2016). The idea that China will join a global innocence movement (Garrett, Reference Garrett2017a; Godsey, Reference Godsey and Medwed2017) seems wildly optimistic given the widespread repression and use of internment in that country. The due process protections recognized in Hong Kong may be a colonial legacy, but they remain worth protecting. So too is the freedom that innocence organizations in Taiwan have to attempt to correct wrongful conviction cases and to lobby for law reforms to prevent them.

Proven innocence is a poor fit in the criminal justice systems of many democracies (Quirk, Reference Quirk2007; Sangha, Roach and Moles, Reference Sangha, Roach and Moles2010). The development of American-style innocence projects in the United Kingdom was not sustainable in part because of tensions between their focus on factual innocence and the focus of both the Court of Appeal and the CCRC on the safety of convictions (Naughton, Reference Naughton2010, Reference Naughton2013). INUK’s insistence on factual innocence meant that its projects likely rejected applicants who were entitled to remedies under the English system because new evidence would have led to their convictions being quashed as unsafe or their sentences being reduced. As Abbe Smith (Reference Smith2010) has argued, there is also something troubling about teaching law students only to defend the factually innocent. One of the reasons that INUK gave for its 2014 disbandment was that it was running out of applicants who satisfied its restrictive factual innocence requirements. Non-American innocence projects that follow the American model may find themselves in similar positions. They operate in a legal environment that does not value proof of innocence as much as American systems of post-conviction relief and compensation. Attempts in New South Wales to create a panel dedicated to DNA exonerations failed (Hamer, Reference Hamer2014). Many of the foreign innocence projects eagerly attend the annual conferences of the Innocence Network, but they remain marginal to what is and probably should be an organization rooted in the American experience.

Non-American innocence movements should think twice before embracing the proven innocence paradigm. Kathleen Folbigg was recently acquitted of killing her four children in Australia because a public inquiry had a reasonable doubt about her guilt. Australia, unlike the United States, did not require her, or Lindy Chamberlain before her, to bear the impossible burden of proving her innocence on the basis of clear and convincing evidence for crimes that never happened. At the same time, new second and subsequent appeal legislation enacted in Western Australia and Queensland prefer second and subsequent appeals from those who can prove not only that they suffered a substantial miscarriage of justice but also that they are factually innocent. Victor Nealon and Andrew Malkinson are widely accepted as wrongfully convicted persons. Nealon, however, was unable to prove beyond a reasonable doubt, as now required under English compensation law, that he did not commit the sexual assault, notwithstanding the delayed DNA exclusion that exonerated him. Those who have supported a focus on factual innocence in England (Naughton, Reference Naughton2013) cannot consistently oppose requirements to prove factual innocence to receive compensation.

As discussed in Chapter 4.4, countries in South America are embracing adversarial reforms. Even if some of the wrongfully convicted on that continent can prove their innocence, this does not mean that this should be the only basis for correcting miscarriages of justice. This is especially the case given that one of the motives for embracing adversarial reforms is to solidify new democracies. One of the advantages of a decline in American foreign aid and soft power in the Trump era may be that countries in South America may resist the allure of embracing an American proven innocence model.

As discussed in Chapter 5.6.4, Canada’s 2024 legislation creating a Miscarriage of Justice Review Commission explicitly rejected the idea that factual innocence is necessary for there to be a miscarriage of justice. Canada has also frequently ignored requirements for proven factual innocence in its compensation guidelines (Roach, Reference Roach2025a: ch 14). At the same time, the Conservative opposition in Canada expressed concerns that the referral criteria of Canada’s new CCRC would provide remedies for those who are not factually innocent and create a parallel justice system even though the Canadian commission will apply the identical referral criteria as used in Scotland (Roach, Reference Roach2025a: 345). No one should assume that justice or any other good could not be rationed more severely in their country.

The adoption of a post-conviction right to claim and prove innocence in international law (Garrett, Helfer and Huckerby, Reference Garrett, Helfer and Huckerby2021) could push the international system toward an American-style focus on proven innocence despite evidence that a proven innocence approach was considered but rejected in the drafting of Article 14(6) of the ICCPR (Mujuzi, Reference Mujuzi2019). What may be the best that can be achieved in mass imprisonment societies such as the United States and China should not be the global standard.

12.5 The Enduring Importance of Equality

Societies could reduce the risk of wrongful convictions to zero by not using the criminal sanction at all. Most people would reject this option as did leading legal theorists Lon Fuller (Reference Fuller1969) and Ronald Dworkin (Reference Dworkin1985: ch 3). Writing just before the advent of DNA exonerations, Dworkin added an important caveat: the risk of wrongful convictions should not be distributed in a manner that violated the right to equal respect and concern.

Dworkin was not the first scholar to recognize the importance of equality with respect to miscarriages of justice. After fleeing Nazi Germany, the German lawyer Max Hirschberg wrote about the “subconscious” effects of “political, racial and religious hatred” in producing wrongful convictions (Hirschberg, Reference Hirschberg1940: 40). Hirschberg also defined wrongful convictions much more broadly than his American contemporary Edwin Borchard to include cases where the accused may not have been factually innocent of the commission of the offence but had a valid defence (Hirschberg, Reference Hirschberg1940: 35–41) or were only guilty of a less serious crime for which they were convicted (Hirschberg, Reference Hirschberg1941: 544–546). Equality analysis focuses on patterns not the binary and individualistic issue of innocence and guilt.

Both DNA exonerations and the American registry reveal that Black people are grossly overrepresented among the wrongfully convicted not only in proportion to their percentage in the American population but also in proportion to their overrepresentation in the prison population (Garrett, Reference Garrett2011a; Gross et al., Reference Gross2022). As argued in both Chapters 6 and 7, the American innocence movement should be praised for extending justice to those who have been denied justice in such a discriminatory pattern. At the same time, however, it can also be criticized for not making the need to name and combat anti-Black racism a central feature of their attempts to reform the justice system.

Much of the focus of the American innocence movement was on the immediate causes of wrongful convictions. Much, however, was lost in reducing the wrongful convictions of so many Black men to the generic category of mistaken eyewitness identifications. There were, however, good strategic reasons for why the American innocence movement stressed innocence and not racial discrimination. After the Supreme Court’s 5:4 rejection of compelling evidence of anti-Black discrimination in Georgia’s administration of the death penalty (McCleskey v. Kemp, 1987; Scheck, Neufeld and Dwyer, Reference Scheck, Neufeld and Dwyer2000: 250), the focus on innocence had more salience and has been associated with reductions in the use of the death penalty (Baumgartner et al., Reference Baumgartner2008). The focus on factual innocence, however, made it more difficult for the American innocence movement to take on police misconduct, overincarceration including pre-trial detention, discrimination in jury selection, prison conditions and the death penalty especially when applied to the factually guilty (Stevenson, Reference Stevenson2014).

At various junctures, this book has speculated about possible future directions of innocence movements while also criticizing the idea that there is or should be a “global innocence movement” (Garrett, Reference Garrett2017a; Godsey, Reference Godsey and Medwed2017) patterned after the American model. Although I am sceptical about a global movement, I believe increased attention to equality issues will benefit both our understanding of miscarriages of justice and attempts to prevent and remedy them in most jurisdictions.

In Chapters 7.7 and 8.7, attention was devoted to similar patterns in the wrongful convictions of Indigenous men and women in a variety of settler colonial states such as Australia, Canada and New Zealand. These patterns also push toward a broader understanding of miscarriages of justice (Parkes and Cunliffe, Reference Parkes and Cunliffe2015) that include disproportionate pre-trial detention, police misconduct, discrimination in jury selection, high sentences that induce false guilty pleas and collateral consequences such as child apprehension and discriminatory parole decisions (Pate, Reference Pate2022). There is a need for more research into whether Indigenous people in other parts of the world including South America, Africa and Asia are also disproportionately subject to miscarriages of justice in a way that violates equality norms. In India, there is some evidence of criminal justice discrimination against religious minorities, Indigenous people and underclasses (British Broadcasting Company, 2019). The same might be true in China, but its lack of transparency has so far not allowed such research. The mass detention of the Uighur and Tibetan minorities does not bode well for those who are not ethnically Chinese. The particularities and complexities of inequalities and discrimination and their relation to each country’s history are another reason to doubt that there should be a single global innocence movement.

Increased attention should be paid to whether vulnerable minorities are at increased risk of wrongful convictions by virtue of their overrepresentation in the prison population. Here, the United States sets the standard with Black people constituting about 52 per cent of all exonerees, even though they are “only” about 37 per cent of the prison population. This demonstrates that Black people are getting access to justice through exonerations, whereas the number of exonerations of Indigenous people in Australia, Canada and New Zealand is not as high as their dramatic overrepresentation in the prison population most at risk of wrongful convictions (Roach, Reference Roach2015a). The exoneration of so many Black people is a significant achievement of the American innocence movement.

Focusing on the role of discriminatory stereotypes and prejudice would, as suggested in Chapter 7.2, represent a return to patterns of advocacy and explanation of miscarriages of justice that were common before DNA exonerations. Focusing on equality could also lead to innocence organizations using their energies and skills to tackle racial profiling, discriminatory jury selection and disproportionate imprisonment and deaths in custody.

The inability of the American Innocence movement to become a larger social movement concerned with racism and wrongful imprisonment, including military and immigration detention (Norris, Reference Norris2017), is not set in stone. American innocence projects have shown a greater interest in issues of racial justice after the 2020 police murder of George Floyd.

Trump’s 2024 re-election and the opposition of some of his supporters such as Missouri Attorney General Andrew Bailey to the correction of wrongful convictions championed by Democratic local prosecutors may drive the American innocence movement to abandon its earlier search for bipartisan consensus. This search for consensus often came at the price of taking the abolition of the death penalty (Mumma, Reference Mumma2004) and issues of racism off the table. It focused attention on wrong person cases (Petro and Petro, Reference Petro and Petro2010) even though the American registry reveals that 40 per cent of remedied wrongful convictions involve imagined crimes that were never committed. Recent public opinion polling of Americans suggests that those people who are most aware of and concerned with wrongful convictions are more liberal (Norris, Hicks and Mullenix, Reference Norris, Hicks and Mullenix2023). It is possible to imagine an American innocence movement of the future that features unapologetic anti-racism and death penalty abolition and that explores police and prosecutorial misconduct and with it systemic discrimination.

The anti-Black racism of Trump’s denial that the Exonerated (Central Park) Five were wrongfully convicted, and the false equation he drew in the Reference He, Li and Zhang2024 Presidential debate between false confessions and guilt should encourage the innocence movement to champion broader demands for racial justice including, when warranted, criticisms of police, prosecutors, juries and courts. The idea that the innocence movement should take pains not to appear to be concerned with the rights of all accused (Gould, Reference Gould and Zalman2014) may have passed.

At the same time, an American innocence movement that shines a brighter light on the impact of anti-Black racism not only on wrongful convictions but also on the entire American criminal justice system might have fewer political successes in the foreseeable future. This raises the difficult question whether the limited reforms achieved through bipartisan consensus in the United States in the 2000s and 2010s were worth it or whether they helped legitimate a racist and unjust system of mass imprisonment. Even if the innocence movement was successful in reducing the use of the death penalty and abolishing it in some states with 200 death row exonerations as of the end of 2024, it did not end it entirely. Marcellus Khalifah Williams was executed by Missouri in 2024 despite concerns about his innocence. Even abolition, however, could be seen as a form of legitimation especially when it is replaced by life imprisonment with no possibility of parole (Jouet, Reference Jouet2022; Martin, Reference Martin2002). The focus on equality is not a panacea, but monitoring inequalities can guard against the dangers of both legitimation and complacency.

12.6 Democracy, Wrongful Conviction Washing and Legitimation

In 1940, Max Hirschberg brought the wealth of his experience as a German lawyer and scholar concerned with wrongful convictions to an American audience. He wrote: “under a dictatorship, justice cannot exist; the court becomes an instrument of power not justice.” He added that the study of wrongful convictions or what he called a pathology of criminal justice “would be senseless, nay impossible, in a Fascist country. Only a free democratic country may be deeply interested in improvements in the administration of justice” (Hirschberg, Reference Hirschberg1940: 43). Hirschberg’s comments reflect his experience. Today, however, they raise two difficult questions: what should be made of wrongful conviction reforms in authoritarian countries? Do improvements to prevent and better remedy wrongful convictions redeem or legitimate unjust systems?

China’s response to wrongful convictions examined in Chapter 9.5 suggests that Hirschberg’s argument, while principled, may have been wrong. The Communist Party responded to well-publicized wrongful convictions between 2006 and 2013 with a variety of reforms including increased review of death penalty cases, an exclusionary rule for involuntary confessions and increased use of alternatives to immediate execution (Jiang, Reference Jiang2016; Miao, Reference Miao2024). At the same time, defence lawyers remained both marginalized from the “iron triangle” of police, prosecutors and courts. Moreover, they remained vulnerable to being detained, charged and convicted for doing their jobs (He, Reference He2016; Jiang, Reference Jiang2016). Conviction rates, especially after 2018 reforms designed to increase guilty pleas, remained very close to 100 per cent (Miao, Reference Miao2024). Nevertheless, the numbers of acquittals as well as increased compensation payments are regularly reported by the state press. Chinese officials have not been shy about drawing equivalencies with American wrongful convictions (Deyong, Reference Deyong2013). Wrongful convictions could become a minor propaganda battlefield in a new Cold war. Those of us lucky enough to live in comparatively free democracies should be aware of and responsive to frequent claims made by Chinese government representatives that western criticisms of China on human rights are hypocritical (Roach, Reference Roach, Fu and Hor2022a). China and the United States as mass imprisonment societies both tend to ration justice on a restrictive proven innocence basis. Torture by the police is the leading cause of China’s remedied wrongful convictions, but it has also contributed to wrongful convictions in the United States and England.

Japan, unlike China, is a democracy, and it uses imprisonment sparingly. Nevertheless, Japan has a severe wrongful conviction problem (Johnson, Reference Johnson2024b). It recently corrected the wrongful conviction of eighty-eight-year-old Iwao Hakamada who was the world’s longest serving death row prisoner. The former professional boxer made a false confession in 1966 after twenty-three days of interrogation. A former Japanese prosecutor who is now a defence lawyer has described the Japanese system in terms eerily similar to those of China’s iron triangle of police, prosecutors and courts when he stated: “In theory, the prosecutors monitor the police, and the judge monitors the prosecutors. But it doesn’t work like this at all. The prosecutor basically does what the police want, and the judges follow what the prosecutor wants. So the criminal justice system is basically controlled by the police” (Worth, Reference Worth2024). David Johnson (Reference Johnson2024a) has concluded that Japan’s 99 per cent conviction rate is “the sign of a broken system.” Mass exonerations, such as the Post Office cases in the United Kingdom or those affecting over 36,000 people in the United States, also reveal systems that do not have adequate checks and balances to ensure that charging decisions do not result in convictions regardless of their accuracy.

The United States is exceptional in exonerating hundreds of persons each year, often through the work of professional exonerators working in innocence organizations or prosecutorial conviction integrity units. It is also more generous than any other country in spending over $4.5 billion to compensate a minority of the over 3,600 people who have been exonerated since 1989 (Gutman, Reference Gutman2025). This is good and necessary work in a hostile environment. But over 95 per cent of those charged in the United States plead guilty. Its Supreme Court has recognized that its symbolic system of trials has been replaced by a system of pleas (Lafler v. Cooper 566 US 156 (2012). American police, prosecutors and trial judges are not an iron triangle subject to Political-Legal coordinating committees as in China. Nevertheless, in many states, they are subject to common electoral pressures. The 2004 Justice for All Act provided funds for both defence lawyers and prosecutors in death penalty cases and devoted far more resources to DNA testing as a method of crime control than of exoneration. Those who sought DNA testing had to swear they were innocent and were subject to additional punishment if the DNA did not exonerate them.

Mass exonerations in the United States dwarf the United Kingdom’s Post Office scandal, which lead to special exoneration and compensation legislation in 2024 that revealed the profound inadequacies of England’s underfunded CCRC, the approach of the Court of Appeal and post-2014 proven innocence compensation requirements. The fact that mass exonerations in police and drug lab scandal cases largely involve Black and Hispanic persons provides a reminder about the standard operating of the American justice system, both as one that disproportionately imprisons such groups but also as a system of guilty pleas, not trials with little concern about accuracy and quality control. Mass exonerations depend on the happenstance of state investigations of policing and drug lab scandals or in the UK on the ability of sub-postmasters to obtain private capital funding for class action litigation that was necessary to reveal the flaws in the Horizon computer system. Mass exonerations in the US and UK reveal that it should no longer be assumed, though some still do (Cassell, Reference Cassell2018), that guilty pleas are accurate. The wrongfully convicted should also not be blamed for their often rational decisions to plead guilty. The United States’ under-examined mass exonerations suggest that American wrongful conviction reforms can be criticized as a form of wrongful conviction washing of an unjust criminal justice system that disproportionately imprisons Black people and where Black people are nineteen times more likely to be wrongfully convicted of drug crimes than white people (Gross et al., Reference Gross2022).

As Barry Scheck and Peter Neufeld, the co-founders of the Innocence Project, wisely pointed out, the era of DNA exonerations will come to an end (Scheck, Neufeld and Dwyer, Reference Scheck, Neufeld and Dwyer2000). DNA exonerations are declining, and their use in the investigative process is thankfully reducing the number of Black men wrongfully convicted of stranger sexual assaults on the basis of mistaken eyewitness identification generally from white women (Gross et al., Reference Gross2022). But this raises concerns that declines in such exonerations will help legitimate a system that continues to wrongfully convict many for the vast majority of crimes where DNA evidence is not available (Medwed, Reference Medwed2022). The charge of using wrongful convictions remedies and reforms as a form of legitimation or wrongful conviction washing may be easier to make against China, but it also has an uncomfortable truth for the United States. This is a reason why the American innocence movement should be more concerned with broader criminal justice reforms.

12.7 The Contributions of Comparative Law Analysis

It is my hope that this book has demonstrated how comparative law analysis can contribute to a richer “criminology” (Leo, Reference Leo2005, Reference Leo2017b) of miscarriages of justice. A perennial concern of comparative law is to understand features of the law that are more or less universal and those which are more particular and expressive of the differences between countries (Tushnet, Reference Tushnet2009).

Calls for a global innocence movement (Godsey, Reference Godsey and Medwed2017) or an international right to claim innocence (Garrett, Reference Garrett2017a) stress the universal. There is much to be said for the universal perspective. At least since the writings of Edwin Borchard (Reference Borchard1932) and Max Hirschberg (Reference Hirschberg1940, Reference Hirschberg1941), the common immediate causes of wrongful convictions have been known. I agree with Hirschberg (Reference Hirschberg1940: 20) that “the reasons for wrongful convictions are, despite the differences in procedure, almost the same in all countries” (emphasis added). At the same time, his “almost” qualification is important.

As discussed in Chapters 5 and 6, violence and torture by the police produced false confessions in England in the 1970s and in the United States in the 1990s, but thankfully such cases seem to be less prevalent today. They remain prevalent in what we know about remedied wrongful convictions in both China and India. The American DNA innocence revolution has revealed mistaken eyewitness identification as a leading cause of wrongful convictions, and there is a vast and old literature in psychology about the frailties of eyewitness identification and a consensus on best practices. This is a universal story.

But American DNA exonerations also reveal something particular about the United States. As discussed in Chapter 7.4, many of these were mistaken identifications of Black men by white women. Reducing these wrongful convictions to the universal immediate cause of mistaken eyewitness identification ignores a difficult and particular American story tied to slavery, segregation and lynching. Fortunately, these wrongful convictions seem to be on a decline because of increased investigative use of DNA (Gross et al., Reference Gross2022).

Forensic error is a common cause of wrongful convictions, but the regulation of forensic service providers differs in different societies (Roach, Reference Roach2009). As discussed in Chapter 3.5, Bermuda is currently auditing over 400 cases that may have involved faulty DNA analysis provided to the state by an American private lab (Washington v. The King (Bermuda) 2024 UKPC 34 [58] [63]). India’s new criminal procedure law enacted at the end of 2023 encourages greater use of forensic science in serious cases. It is designed to respond to India’s very low conviction rate, especially in sexual assault cases, and it has led the Modi government to promise that within a decade, India will have a conviction rate even higher than China’s (India Ministry of Home Affairs, 2025). Western experiences with frequent forensic science failures (Sangha, Roach, Moles, Reference Sangha, Roach and Moles2010), however, should serve as a warning. Moreover, most forensic labs in India are affiliated with the police and have a 40 per cent vacancy rate. Few are accredited and even fewer invest in quality control or validation testing (Goswami and Goswami, Reference Goswami and Goswami2024; Project 39A, 2023). Forensic error in all countries may have universal causes, but they may be more difficult to correct in developing countries.

China’s encouragement of guilty pleas since 2018 (Li, Reference Li, Li, Yuan and Zhang2024) follows trends in other inquisitorial systems in stressing efficiency and allowing guilty pleas or other summary procedures (Duce, Reference Duce2015; Gillieron, Reference Gillieron2012; Hodgson, Reference Hodgson2020). At the same time, it presents a greater risk of false guilty pleas given China’s high rates of pre-trial detention, its history of the police torturing confessions from suspects, and the cultural value placed on confession in China. Another particular factor is the marginal and precarious role of defence lawyers in China (Mou, Reference Mou2020). India’s high rate of pre-trial detention and trial delays also invites false guilty pleas. The lack of any remedied false guilty plea wrongful conviction in either country is not reassuring. Mass exonerations tied to policing, prosecutorial and forensic lab scandals in western democracies have revealed many false guilty pleas. This is unlikely to occur in authoritarian China.

No country and no supranational system is immune from miscarriages of justice. The universal perspective in comparative law is useful, especially with respect to countries that deny or minimize that they have a wrongful conviction problem. Global collaboration and learning among scholars, activists and justice officials should be encouraged. I have benefited from such collaboration in researching this book. The universal perspective can reveal much, but it should not obscure the particular. The particular still matters in understanding how miscarriages of justice occur in each country and especially in how they are defined and remedied.

Despite increasing convergence between adversarial and inquisitorial systems (Hodgson, Reference Hodgson2020; Langer, Reference Langer2007), some of the differences between the two systems remain important. Guilty pleas and summary procedures are generally confined to less serious cases in inquisitorial systems (Turner, Reference Turner2009). In addition, plea bargaining is often “less coercive,” and “it is not possible for defendants to plead guilty while at the same time asserting their innocence, and judges are still orientated towards truth seeking” (Gillieron, Reference Gillieron and Brown2019: 725, 719). The wrongful convictions that have been discovered in the use of summary proceedings in Germany, Switzerland and Chile (Duce, Reference Duce2015; Gillieron, Reference Gillieron2012) should not be ignored, but neither should the fact that they generally involve minor crimes. Inquisitorial traditions including the more cautious and inquisitive approach to accepting guilty pleas found in Article 65 of the Rome Statute establishing the ICC have a potential to prevent false guilty pleas.

Another contribution of comparative law is to understand how various remedies migrate across jurisdictions. The English remedial innovations of the Court of Criminal Appeal created in 1907 and the CCRC created in 1995 have been transplanted in some former English colonies. At the same time, these institutions have adjusted to local conditions. Appeal courts in Canada can more closely review most convictions than in England because jury trials are infrequent with accused frequently choosing to be tried by judge alone who must give reasons for their verdicts. Appeal courts in India are even more willing than Canadian courts to overturn convictions because of concerns about the sufficiency of the evidence, in part because India does not use the jury. The Canadian Supreme Court has been receptive to appeals out of time based on new evidence, whereas the Australian High Court believes it is constitutionally prohibited from accepting new evidence.

The English CCRC has been transplanted to a number of countries, but these new institutions are shaped by local legal culture. The Scottish CCRC is more aggressive in its referrals in part because its referral test is less predictive of what the appeal court will do than that used by the English CCRC. The Norwegian CCRC has been influenced by commissioners with mental health expertise and by its traditionally expansive mental disorder defence. This may change in light of recent restrictions on that defence in response to concerns that a mass murderer might have benefited from it. Dynamic and particular penal cultures influence the definition and treatment of miscarriages of justice in each jurisdiction.

The New Zealand CCRC has taken special efforts to expand access to justice to Maori people who are the majority of its prison population (Thorp, Reference Thorp2005). The new Canadian Miscarriage of Justice Review Commission enacted in 2024 has departed from the North Carolina Innocence Inquiry Commission model by providing that proof of factual innocence is not necessary (S.C. 2004 c.33, s.696.6(6)). Like the North Carolina commission and unlike all the other commissions, however, the Canadian commission will be precluded from hearing claims based on new facts that are relevant to sentence. The Canadian government rejected recommendations that there be at least one Indigenous and one Black person on its new Commission (LaForme and Westmoreland-Traore, Reference LaForme and Westmoreland-Traore2021; Leonetti, Reference Leonetti2023a; Pate, Reference Pate2022).

A comparative law approach to understanding miscarriages of justice can be built on knowledge, largely developed in the United States and the United Kingdom, about the common causes and remedies of wrongful convictions. A universal template can help reveal “missing” or unremedied wrongful convictions such as false guilty pleas in other jurisdictions. This can compensate a bit for concerns that unremedied wrongful convictions may not have the same characteristics as remedied ones (Hamer, Reference Hamer2023). At the same time, a particularistic focus can assist in better understanding the different contexts of even common causes and remedies. It can also reveal how legal transplants will adjust as they migrate to different contexts and how concepts such as proven innocence that may be understandable in highly punitive societies such as the United States and China may have regressive effects in others.

12.8 The Contributions of Historical Analysis

Much of this book aspires to follow what David Garland (Reference Garland2001: ch 1) has described as a “history of the present.” As the founders of the Innocence Project, Barry Scheck and Peter Neufeld wisely warned in 2000, we must also “remember the future” in the sense of understanding that DNA exonerations will dry up as the technology is used by police in the minority of crimes that have DNA evidence. As discussed in Chapter 7.4, the DNA exonerations of Black men for sexually assaulting white women have declined not because the American criminal justice system is less racist, but because the police increasingly use DNA. Alas, this trend has not affected the disproportionate representation of Black people in wrongful murder and drug convictions (Gross et al., Reference Gross2022).

I share Scheck and Neufeld’s sense of urgency that we must use the rapidly closing window of DNA exonerations to improve our understandings and remedies for wrongful convictions. At the same time, I fear that their understandable desire to establish innocence that can never be debated (Norris, Reference Norris2017) may raise standards for overturning wrongful convictions. The election and then re-election of Trump who has denied the innocence of the Exonerated (Central Park) Five also suggests that some people may, in part because of their deeply engrained racism, always deny innocence (Bazelon, Reference Bazelon2018b; Trump, Reference Trump1988; Trump, Reference Trump2014). A sense of history may also suggest that the time for seeking a bipartisan consensus, at least in the United States, has passed (Norris, Hicks and Mullenix, Reference Norris, Hicks and Mullenix2023).

Chapters 7 and 8 go beyond “history of the present” analysis and employed more traditional historical analysis to explore the role of racism and gender discrimination in historical wrongful convictions. The eventually successful campaigning in the pre-DNA wrongful exonerations of Jean Calas, Alfred Dreyfus, Ed Johnson, Rubin “Hurricane” Carter and the Birmingham Six should have contemporary resonance. They help reveal how the early American innocence movement downplayed anti-Black racism in part because of the United States Supreme Court’s rejection of strong evidence of anti-Black racism in the administration of Georgia’s death penalty (McCleskey v. Kemp 481 US 279, 1987).

The wrongful convictions of Indigenous peoples also encourages a greater historical awareness of how such injustices are an example of the harmful effects of colonialization. The wrongful convictions of women from witches to Satanic Panics to Shaken Baby Syndrome cases reveal how prejudice and gender stereotypes can lead to wrongful convictions for crimes that never happened. Both the American and the British registries indicate that three-quarters of female exonerees have been wrongfully convicted on the basis of stereotypes for imagined crimes that never occurred. Florence Maybrick (Reference Maybrick1905) should be an inspiration to innocence movements not only because of her critique of her wrongful conviction but also of the prison conditions she had to endure.

The fact that a third to 40 per cent of wrongful convictions in the North American registries include imagined crimes that never happened (Henry, Reference Henry2020; Roach, Reference Roach2023a: Part 2) should cause us to confront how irrational prejudices and stereotypes result in wrongful convictions. It should also help avoid seeing every wrongful conviction as a “wrong man” case or every issue of wrongful conviction reform as a zero-sum contest between the dangers of wrongful convictions and wrongful acquittals (Cassell, Reference Cassell2018).

12.9 The Contributions of Legal Process Analysis

Legal process methodology may not be innovative or in vogue (Roach, Reference Roach1997), but it can still contribute to our understanding of miscarriages of justice. Institutional analysis can contribute to our understandings of reforms designed to prevent wrongful convictions, especially their limits. It can also lead to an awareness of the need to involve all branches of government as well as civil society to achieve effective reforms (Findley, Reference Findley2016).

As discussed in Chapter 3, judicial regulation of eyewitness identification, interrogations, incentivized witnesses and expert witnesses is frequently used in many countries. At the same time, like all judicial regulation (Bradley, Reference Bradley1993), it tends to be episodic and focused on individual cases. Courts are also reluctant to use their ultimate remedy of exclusion of evidence that may not be reliable (Roach, Reference Roach2007b). They are influenced by past precedents that have admitted expert evidence of unknown reliability (Edmond et al., Reference Edmond, Cole, Cunliffe and Roberts2013). Courts in systems that use juries also seem oblivious to psychological research that suggests that warning jurors that evidence may not be reliable may not be effective (Simon, Reference Simon2012). Courts are not the answer, but they can be a problem and for that reason cannot be ignored. Even if there are necessary legislative and executive reforms, the decisions of courts to admit untested and potentially unreliable evidence can stymie them (Findley, Reference Findley2016).

England’s Police and Criminal Evidence Act, 1984 (PACE) combined legislative regulation of identification and interrogation practices with the ability of the executive to develop and update codes of conduct directed at the police. This has facilitated some regulation of the increasing use of identifications from digital images. It recognizes that some people may be more vulnerable than others in making false confessions. Its regulation of interrogation practices encouraged the police to undertake their own reforms and develop less guilt presumptive forms of interviewing. Finally, PACE allows the judiciary to play an enforcement role, albeit through a non-absolute exclusionary rule. It follows what Keith Findley (Reference Findley2016) has recognized as a hybrid approach that has the greatest possibility of effectively regulating the immediate causes of wrongful convictions.

Legal process analysis is supple enough to include the ability of organizations to reform themselves. The English police have voluntarily adopting PEACE informational techniques of interviewing that seem to be superior to the guilt presumptive Reid techniques that have produced frequent false confessions in North America (Leo, Reference Leo2008). With respect to forensic error, there is a growing consensus that the most effective reforms must come from within the organizations that provide forensic services (Edmond, Reference Edmond2016; Garrett, Reference Garrett2021; Neufeld, Reference Neufeld2005).

Legal process analysis can include political economy, which helps explain why, as discussed in Chapter 3.5, both the Obama and Trump administrations asked courts to ignore consensus scientific opinion that most forms of non-DNA forensic science have not been subject to necessary testing, validation or quality control. DNA testing for exonerations may have succeeded in part because DNA is also predominantly used as a crime control device. Although DNA is based on a better scientific base than all other forms of forensic science, errors and contamination are still possible (Murphy, Reference Murphy2015; Project 39A, 2023; Washington v. The King (Bermuda) 2024 UKPC 34).

Legal process analysis can also expand beyond a traditional focus on state institutions to include civil society institutions. Innocence organizations generally rely on charitable funding. This helps explain why they frequently embrace the populist factual innocence mandate. They cannot afford to send cases back to the courts only to have convictions confirmed. They will reject applications from those they do not believe to be factually innocent (Naughton and Tan, Reference Naughton and Tan2010), and they can be devastated if their claims that clients are innocent are disproved (McCloskey, Reference McCloskey2021). The funding of innocence organizations may be threatened if they appear to oppose police or prosecutors or to side with defence lawyers (Gould, Reference Gould and Zalman2014: 5).

By contrast, publicly funded commissions can afford to and do send cases back to courts that do not result in convictions being overturned. At the same time, they are vulnerable to judicial criticism for doing so. Moreover, they are vulnerable to underfunding by governments and political appointments or refusals to re-appoint commissioners who are no longer in the government’s favour (Westminster Commission, 2021; Queen on application of Warner v. Secretary of State [2020] EWHC 1894 (Admin)). A proposal not to allow re-appointments to its new Commission (LaForme and Westmoreland-Traore, Reference LaForme and Westmoreland-Traore2021) was not followed by the Canadian government, and there have been controversy in New Zealand about a new government’s refusal to re-appoint two former defence lawyers on the New Zealand CCRC including its first Chief Commissioner. The Scottish commission received legislative pushback after it unpopularly referred a conviction in a terrorism case. Republican prosecutors and legislators are threatening to abolish North Carolina’s Innocence Inquiry Commission arguing that such innocence work can be done by innocence projects that are not publicly funded.

The institutional orientation of legal process analysis is very helpful in understanding CCRCs as a new criminal justice institution and their complex relations with governments, courts and civil society. Some early advocates of CCRCs viewed them as something close to an inquisitorial panacea (MacCallum, Reference MacCallum2008; Runciman, Reference Runciman1993). Subsequent research, especially with respect to the underfunding of the English CCRC and controversies over re-appointments to the English and New Zealand CCRCs, have revealed that no CCRC is fully independent from government and that they ration their limited investigative resources in a manner that may result in mistakes (Hodgson, Reference Hodgson2020; Hodgson, Hoyle and Soubise, Reference Hodgson, Horne and Soubise2018; Hoyle and Sato, Reference Hoyle and Sato2019; LaForme and Westmoreland, Reference LaForme and Westmoreland-Traore2021; Westminster Commission, 2021).

Many parts of a recent proposal to attempt to safeguard a new Canadian CCRC from being underfunded by government and from judicial pushback in the form of refusing to admit new evidence found by the commission (LaForme and Westmoreland Traore, Reference LaForme and Westmoreland-Traore2021; Leonetti, Reference Leonetti2023a) were rejected by the Canadian government in its 2024 legislation creating a Miscarriage of Justice Review Commission (Roach, Reference Roach, Maniksis and Watson2025b). The English Law Commission (2025) has recently recognized that the vaunted independence of the first CCRC is threatened by its predictive referral test and the harsh criticism it has, at times, received from the judiciary. In addition, its independence and performance have been adversely affected by its underfunding by the government. Governments may find it in their interests to create CCRCs but then to underfund and otherwise weaken them. Courts may also not always be happy with having a new executive and expert interlocutor.

The CCRCs may be a needed institution, but legal process analysis teaches us that they are not a perfect one. The delays in ordering the DNA tests that eventually exonerated Victor Nealon and Andrew Malkinson serve as a stark reminder of the fallibility of CCRCs. They partially vindicate INUK’s criticisms of it as bureaucratic and insufficiently concerned about innocence. At the same time, the courts almost always uphold frequent CCRC decisions not to make referrals under deferential standards of judicial review that presume that CCRCs have expertise that they may sometimes lack (Hoyle and Sato, Reference Hoyle and Sato2019).

All CCRCs reject the majority of the applications they receive by not referring them back to the courts with the English commission rejecting 97 per cent of the applications. The North Carolina Commission, which is restricted to factual innocence claims, has referred less than 0.5 per cent of the almost 3,770 claims it decided as of the end of 2024 (North Carolina Innocence Inquiry Commission, 2025: 11–12). Researchers have found disturbing practices in the English CCRC including (1) a reliance on deferential administrative law review grounds, (2) concerns about invoking judicial criticism in part caused by its predictive referral test (3) declining levels of legal representation of applicants that may it impossible for applicants effectively to respond to legalistic provisional decisions not to refer a case back to the courts and (4) a lack of responsiveness to the vulnerabilities of applicants (Hodgson, Reference Hodgson2020; Hodgson, Horne and Soubise, Reference Hodgson, Horne and Soubise2018; Hoyle and Sato, Reference Chang and Hoyle2019; Law Commission, 2025).

The CCRCs have not actively engaged in systemic reform. They face formidable pressures to appear not only impartial but also detached from applicants in order to retain the confidence of courts and the police and prosecutors who provide them with most of the material to review applications (Roach, Reference Roach2010b). Publicly funded commissions will tend to professionalize, legalize and bureaucratize wrongful conviction discourse, whereas the traditional reliance on the elected executive to order second or subsequent appeals or to issue commutations or pardons will tend to politicize it. Concerns have been raised that media interest in miscarriages of justice has declined since the creation of the English CCRC in 1995 (Naughton, Reference Naughton2010) though these concerns are difficult to disentangle from other challenges facing mainstream investigative media. The rise of social media provides new outlets for campaigning (Stratton, Reference Stratton, Akrivos and Antoniou2019) but may also encourage increased political polarization and misinformation. The search for innocence that no one can deny (Norris, Reference Norris2017) may be impossible in the social media age that promotes political polarization.

New legal process analysis (Roach, Reference Roach1997) is more agnostic than old legal process analysis about institutional choice. It should not be assumed that the elected executive and elected legislatures will always be more reluctant than the courts to provide remedies. Australia’s two best-known wrongful convictions, those of Lindy Chamberlain and Kathleen Folbigg, were first corrected by the executive with the courts following. In the wake of the national airing of the Mr. Bates v. The Post Office television drama, Parliament provided far more generous and aggregate remedies to sub-postmasters that would have been provided by the CCRC and the Court of Appeal, which had already upheld some convictions. At the same time, new legal process analysis should not be romantic about the legislature. Parliament came to the aid of the small and sympathetic business people portrayed in Mr. Bates v. The Post Office but not to the immigrants who were let down by their lawyers when they did not raise successful refugee defences to the offence of being illegally in England. The CCRC referred many of these cases to the Court of Appeal but were less aggressive after the Court of Appeal criticized them for referring these no appeal cases (Hodgson, Horne and Soubise, Reference Hodgson, Horne and Soubise2018).

The United States Supreme Court, on the one hand, has lauded executive clemency as the ultimate fail safe for the innocent (Herrera v. Collins, 506 US 390 1993) while holding that applicants have next to no due process rights when they seek clemency (Ohio Adult Parole Authority v. Woodard 523 US 272 1998). Political polarization will adversely affect executive clemency. Mike Parson, a MAGA Republican governor of Missouri has pardoned 800 people including two white lawyers who brandished their guns in fear of a Black Lives Matters demonstration and a white police officer convicted of manslaughter in killing a Black man (New York Times, 2024c). He did not, however, commute the death sentence of Marcellus Khalifah Williams, a Black Muslim man who was executed in 2024 despite attempts by the local prosecutor to have his murder conviction overturned on innocence grounds. Executive pardons have been used in India in cases of suspected wrongful convictions, but presidents have varied dramatically in their willingness to make such decisions (Batra, Reference Batra, Pascoe and Novak2021). There are no viable systems of executive clemency in China (Xiong, Reference Xiong2022), and the process seems to be moribund in South Africa (Shumba, Reference Shumba2017). By contrast, the Judicial Committee of the Privy Council has interpreted Jamaica’s Constitution to require basic fairness in deciding whether to grant executive clemency including waiting while death row prisoners make claims to various supranational bodies (Lewis v. Jamaica 2000 UKPC 35). The Caribbean Court of Justice has reached similar conclusions (AG v. Boyce and Joseph [2005] CCJ 2).

Legal process analysis is attentive to the role of federalism. States with jurisdiction over criminal procedure in the United States and Australia have experimented with a wide range of wrongful conviction reforms. Texas and North Carolina are two of the leading state reformers underlining the possibility of bipartisan reform but also the possible use of wrongful conviction reforms to legitimate the death penalty with Texas leading the United States in its use of the death penalty.

New rights of second and subsequent appeals in Australian states are better than nothing but also a less expensive alternative for state governments than funding a Criminal Cases Review Commission. The federal Parliament in Canada, however, has resisted numerous recommendations by provincial inquiries to regulate the immediate causes of wrongful convictions and has essentially delegated that task to the judiciary, which has proceeded in a case-by-case manner (Bradley, Reference Bradley1993; Roach, Reference Roach2023a).

Legal process analysis with its focus on institutions is also helpful in understanding why optimal regulation of the immediate causes of wrongful convictions is unlikely to occur. Too much writing on wrongful convictions, including some of my earlier work (Roach, Reference Roach2006, Reference Roach2007b), has been concerned with designing ideal or optimal models of regulation without sufficient attention to the political and institutional constraints faced in implementing them. Even though I find what Lon Fuller (Reference Fuller1969) called the “social accounting” of balancing wrongful convictions against wrongful acquittals normatively uncomfortable, such issues must be confronted in understanding why legislatures, courts and the executive so often stop short of optimal efforts to prevent wrongful convictions. Here, the utilitarian social accounting approach (Cassell, Reference Cassell2018; Epps, Reference Epps2015; Forst, Reference Forst2004; Laudan, Reference Laudan2006) has considerable explanatory value. It helps explain why eyewitness identifications, confessions, testimony by incentivized witnesses and forensic evidence of unknown reliability are routinely used in court even though we know they will produce wrongful convictions. The inevitability of wrongful convictions explain the recurring focus on new remedies (Nobles and Schiff, Reference Nobles and Schiff2000) including most recently wholesale exoneration legislation used to resolve the Post Office scandal. These remedies in turn migrate to other jurisdictions as they confront their own crisis of confidence caused by well-publicized wrongful convictions.

12.10 Possible Futures

Most people who write books hope that they contribute to the future and I am no exception. I see two possible futures.