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7 JIJIS 50 (2007)
Miscarriages of Justice in Inquisitorial and Accusatorial Legal Systems

handle is hein.journals/jijis7 and id is 58 raw text is: MISCARRIAGES OF JUSTICE IN INQUISITORIAL AND ACCUSATORIAL LEGAL SYSTEMS Peter J. van Koppen Netherlands Institute for the Study of Crime and Law Enforcement (NSCR) Maastricht University Free University Amsterdam Address to the Miscarriages of Justice Conference: Current Perspectives University of Central Missouri, February 21, 2007 efore I begin, I would like to make two points. We should realize that in an overwhelming majority of cases, technical evidence is absent. In only somewhere between 2 and 3 percent of the cases, technical evidence like DNA traces or fingerprints or bullet comparisons, is present for the convictions. In an overwhelming majority of the cases, the conviction is based solely on witness evidence. If one examines the sub-sample of miscarriages of justice, of course in a majority there are errors by witnesses. Generally for humans our perception and our memory of events are very good. They need to be because they are essential for our survival. If we did not have such good perception and memory, we would not be here today; there would not be a human race. Despite having wonderful powers of perception and memory, often they fill with special circumstances of criminal cases because, for example an investigator comes up and starts asking questions about things witnesses never really think about like number plates of cars, or the color of the eyes of the robber. So to observe a miscarriage of justice in a high percentage of cases because of witness statements is not a surprise because they are so important. Additionally it should be recognized that all evidence has a margin of error. A witness has such, but so do fingerprints and DNA evidence also have, a margin of error. If all the evidence in a criminal case is added together, there always remains some margin of error. A fact-finder, a jury or a judge, wants to be certain before a person is convicted. So with every decision in a criminal court, there is a risk of convicting the innocent. The risk may be small, the risk may be large, but there is always a risk. And the difference between a good criminal justice system and a bad criminal justice system is not that in a good criminal justice system there are no miscarriages of justice. A good criminal justice system can only take care of the risk, minimizing it as much as possible. But the risk can never be completely avoided. In this introduction about Dutch law, there are two things essential to observe. Most of the Netherlands, two-thirds of the country, is below sea level. For instance the Amsterdam airport is some 20 feet below sea level. Dikes are essential for survival of the country, but dikes need maintenance. Dikes sometimes break, and if that happens, a collective effort of the whole community is required to repair the breach in the dike. So we have a long tradition of getting together and joining forces. That represents one basis of Dutch law. The other basis is that we are a trading Direct correspondence to PvanKoppen @nscr n1 © 2007by the author, published here by permission The Journal of the Institute of Justice & International Studies Vol 7

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