Comparative Criminal Procedure
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Comparative Criminal Procedure

Edited by Jacqueline E. Ross and Stephen C. Thaman

This Handbook presents innovative research that compares different criminal procedure systems by focusing on the mechanisms by which legal systems seek to avoid error, protect rights, ground their legitimacy, expand lay participation in the criminal process and develop alternatives to criminal trials, such as plea bargaining, as well as alternatives to the criminal process as a whole, such as intelligence operations. The criminal procedures examined in this book include those of the United States, Germany, France, Spain, Russia, India, Latin America, Taiwan and Japan, among others.
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Chapter 2: Ensuring the factual reliability of criminal convictions: reasoned judgments or a return to formal rules of evidence?

Stephen C. Thaman


Since 1989 in the United States (US), at least 337 innocent persons have been exonerated based on DNA tests after having been convicted, nearly always by juries,1 in trials which were otherwise ‘fair’ in the sense that the judgments were not overturned on any legal grounds, nor due to insufficiency of the evidence (Innocence Project, 2016). Since 1976, more than 150 persons sentenced to death for murder have been exonerated through DNA testing and other means (Death Penalty Information Center, 2016). The greatest percentage of wrongful convictions are due to erroneous eyewitness identification, but some 25–30 percent are due in part to false confessions or admissions and 15 percent of the wrongful convictions involved false testimony of an informant. Bad lawyering and negligent or outright dishonest practices of police, prosecutors, and forensic experts were also significant causes of these miscarriages of justice (Illinois, 2002; Innocence Project, 2016).In relation to all of these convictions of the innocent, we can presume the trial judge denied a motion for a directed verdict of acquittal based on insufficiency of the evidence,2 and that appellate panels implicitly found sufficient incriminating evidence for a reasonable jury to convict. In other words, the American rules of evidence allowed juries to decide the fates of people charged with capital and other serious felonies based on either weak or fabricated evidence in each of these cases.

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