“If there is one theme that emerges from all of the recommendations in this report, it is vigilance—everyone involved in the criminal justice system must be constantly on guard against the factors that can contribute to miscarriages of justice….”

—Canadian Department of Justice (2005)

It’s more than a little disturbing to this writer that a “Report on the Prevention of Miscarriages of Justice” has to recommend that the Canadian justice system exercise vigilance. You wouldn’t think an external audit would have to emphasize the importance of guardedness against errors that destroy lives.

Yet this recommendation is one that the U.S. justice system and many others are no less in urgent need of heeding.

Disturbing, also, are that the phrase miscarriages of justice is typically only applied to wrongful criminal convictions and that false allegations are discounted as contributing significantly to the number of miscarriages of justice, when in fact they’re responsible for the majority of them. Fraudulent claims are certainly unexceptional in civil proceedings, and the successes of fraudulent claims in civil court are just as much miscarriages of justice as failures of the system that result in false criminal convictions are.

Regarding civil restraining order adjudications, which number in the millions each year and which are singularly distinguished for their lack of vigilance against fraudulent claims, it may be more useful to point out that their results often equate with convictions in the tolls they exact (if not dramatically exceed them) than to argue that rulings in such cases should be no less the products of painstaking deliberation than rulings in criminal cases should be. If the net consequences are on a par with each other, so too should be the degree of vigilant scrutiny brought to bear on each.

Consider these excerpts from recent accounts on the e-petition “Stop False Allegations of Domestic Violence.” Italics are added.

“I have been falsely accused of domestic violence. I lost my home and my kids, and haven’t been convicted of a crime.”

“My whole career in law enforcement and EMS was ruined in a matter of minutes—all for a false accusation. My present work privileges are suspended from the medical field, and I am bound to the state pending trial for something I did not do….”

“This signature is on behalf of my brother…. He lost everything: the house that was his long before the marriage, all his belongings, but most of all his girls. It is so not fair. He is a victim…of a corrupt judicial system.”

Miscarriages of justice can occur even when the falsely accused aren’t convicted of anything, and as stories like these stress (and such stories are legion), the consequences can be life-sundering.

A noteworthy component of the report quoted in the epigraph is its recommendations to agents of the justice system on how to improve their job performance. It’s assumed by those who’ve been victimized by abuse of legal process that judges could do their jobs right if they wanted, but choose not to. The truth, though, is that they, like everyone else, need to have their failings pointed out to them.

Arguments made to trial judges often include definitions of words. Since this post is an argument, I’ll conclude it with some:

ethics, rules of right and wrong;

deprivation, the act of taking away by force;

vigilance, watchfulness, alertness, or caution;

miscarriage, a failure.

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