This article examines the U.K. and U.S. systems to determine what lessons, if any, the United States can learn from the United Kingdom's experience. Part I provides a background of the CCRC and the U.K. Court of Appeal, and describes how these two entities work in tandem with broad powers to investigate and correct miscarriages of justice in the United Kingdom. Part II takes an in-depth look at the Court of Appeal's decisions of CCRC referred cases and identifies five categories into which these decisions fall-- categories that exemplify the institutional mechanisms that facilitate review of miscarriages of justice. These categories include: (1) cases that demonstrate the broad standard of “unsafety” that is used to vacate convictions; (2) “change-of-law” cases; (3) sex crime cases, (4) police misconduct cases; and (5) new scientific evidence cases. Part III describes how, in the United States, a rigid adherence to finality and an undue deference to the original decision-maker operate to restrict courts' corrective function. This restricted capacity is reflected in demanding standards of review, strict non-retroactivity principles, and a powerful institutional reluctance to entertain and credit compelling new evidence of innocence--from powerful impeachment evidence to new scientific proof. Part IV compares the two systems in an effort to determine what lessons the United States can learn from the United Kingdom's experience that would allow U.S. courts and policy makers to adopt a broader corrective function. For instance, U.S. courts could relax retroactivity rules, temper their unwillingness to credit newly discovered evidence of innocence, and modify their standard of review to allow the receipt of significant new evidence.35 Moreover, contemporary scientific developments that significantly contradict evidence of guilt, such as DNA, could routinely be considered. To implement these changes, the United States should follow the United Kingdom and North Carolina and create independent, investigatory, and referring bodies like the CCRC.37 By investigating and producing new evidence, vetting it, and identifying it as potentially worthy of post-conviction relief, the creation of an independent review commission might be the fairest and most efficient mechanism to temper the U.S. system's fixation with finality.
Lissa Griffin, Correcting Injustice: Studying How the United Kingdom and the United States Review Claims of Innocence, 41 U. Tol. L. Rev. 107 (2009), available at http://digitalcommons.pace.edu/lawfaculty/653/.