Trials and miscarriages: An evolutionary socio-historical analysis

Abstract

Periodically miscarriages of justice become newsworthy and inform not only those who may have some responsibility for their occurrence and rectification, but the general public as well. At those times proposals for reform tend to ensue, and reforms occur. But such occasions are rarely considered historically or understood from an evolutionary perspective. This article undertakes to offer that missing feature. It attempts to inform the periodic highly charged discussion of miscarriages of justice with an understanding of their ingredients illustrated by both some recent and some much older history. The article presents the thesis that miscarriages of justice are a component of the workings of all criminal justice systems, part of their operations, rather than their malfunction. It shows how miscarriages of justice are the criminal justice system’s answer to a prior problem, the functional need to convict more persons than can be shown, with certainty, to have committed the crimes of which they have been charged. This thesis has the implication of inserting some modesty into proposals for reform, not to decry their attempts, but to inspire less naivety. The article focuses on the changing methods of the criminal trial, throughout the second millennium and up to the present day, as an expression of the underlying problématique that represents its thesis.