Understanding Miscarriages of JusticeLaw, the Media and the Inevitability of a Crisis

Abstract

This book explores a paradox. In a society in which justice is uncertain and contested, how can we talk meaningfully about miscarriage of justice? The book examines the structural conditions that inevitably produce high-profile miscarriages of justice. The thesis of the book is that there is a tension between the rhetoric of justice as understood outside of law, particularly in the media, and legal practice. Despite evidence that miscarriages of justice must be a normal and expected consequence of imperfect arrangements for investigations, prosecutions, and trials, they are ordinarily understood as exceptional and unacceptable events. Periodically, however, miscarriages are seen not as exceptional, but widespread and normal. At such moments, the legitimacy of the criminal justice process is called into question in the media. These moments are constructed in the media as a crisis of public confidence in criminal justice. With the mass media's vivid interest in crime and punishment and their relentless reconstruction of relevant facts, the courts fact-finding monopoly is fundamentally contested. While this happens in all phases of a criminal process, the contest becomes particularly dramatic when after a criminal conviction the mass media continue their investigation and discover, according to their criteria of truth, a miscarriage of justice. But there is no set of common criteria that would allow for the design of rational procedures to end the contest. There is no forum, no procedure, and no set of criteria that would make possible a common search for truth.