When strengths become weaknesses: Wrongful convictions and institutional assumptions of accurate fact-finding in different jurisdictions

• In Event: Miscarriages of Justice: Comparative Perspectives on Innocence Issues

Abstract

Different jurisdictions have their own critical points of trust, deriving from legal culture and procedural tradition, where fundamental assumptions are made upon which the fact-finding capacity of the system is based. Such points of trust are often based on what are perceived to be traditional strengths, but they become points of weakness when their underlying assumptions no longer correspond to reality. This paper addresses the implications of this for the fact-finding capabilities of the systems of England and Wales, and the Netherlands respectively, analysing culturally informed but false institutional assumptions about how the investigative and trial process works.
In England and Wales, for example, advance prosecution disclosure and independent active investigation by the defence are assumed to provide a basis for strong defence narrative building and thus something like the equality of arms upon which accurate adversarial fact-finding is thought to depend. But what if the defence in fact lack the capacity or will either to conduct active independent pre-trial investigations or to make sense of the ‘unused materials’ disclosed by the prosecution? In the Netherlands, the assumption is that thorough investigation led by an impartial prosecutor, the existence of a complete dossier and the active fact-finding role of the inquisitorial judge at trial preclude the necessity of strong defence rights and guarantee accurate truth-finding. But what if the investigation is neither thorough nor impartial, the dossier is incomplete and/or the judge unwilling to fulfil an active role? These and other questions are addressed by examining recent wrongful convictions, in which assumptions of strength became the points of weakness.

Authors

• Chrisje Brants, Utrecht University

• Stewart Field, Cardiff Law School