The Age of Innocence: Actual, Legal and Presumed

Any accounting of the justice system would put the presumption of innocence at the top of the ledger.1 The premise underlying this evidentiary rule is that no one should be found guilty of a crime unless the state has convinced a jury with proof beyond a reasonable doubt.2 The presumption is based on an ancient ratio most succinctly expressed by Blackstone: “Better that ten guilty persons escape than that one innocent suffer.”3 It recognizes that the guiding principle of the justice system favors protecting the innocent from wrongful prosecution.

Once a person has been adjudged guilty, the all purpose monolith of pretrial or preplea innocence bifurcates into distinct areas: (1) legal innocence, which can mean that the defendant did not receive a fair trial due to a coerced confession, withholding of exculpatory evidence, ineffective assistance of counsel, prosecutorial misconduct, faulty forensics, or other constitutional and procedural infirmities;4 and (2) factual or actual innocence indicating that the wrong person had been convicted and someone else was culpable or no crime occurred.5

In the popular mind actual innocence claims trump the merits of challenges based solely on constitutional violations6—the legally innocent defendant is viewed as the public enemy while the factually innocent defendant can potentially reclaim their status as the accused.7 Recent scholarship analyzes the emergence of this “supercategory of innocence”8 that appears to dilute the unified “innocence” presumption through overemphasis on freestanding claims of factual error.9 Still, both actual and legal claims of wrongful conviction remain facets of unitary innocence.10

The complex and gray areas of criminal adjudication leave room for gradations and even waivers of innocence claims in the course of plea negotiations, trial stratagems and various defenses. However, once the proceeding moves from the trial stage to post-conviction there is a legal change in status. The presumption of innocence is shed in favor of a presumption of guilt that pervades appeals, writs, parole and clemency proceedings.11

The cases of convicted persons whose guilt was the product of constitutional violations have been illumined by examining appellate court reversals,12 new legal precedent13 and remedial legislation and policy decisions.14 And posthumous reinvestigations are adding new perspectives to the innocence question.15 Nonetheless, overcriminalization and overemphasis on punishment can flatten calibrations of innocence and turn Blackstone’s ratio on its head.16

The materials collected here focus on the drift from unitary innocence, which encompasses all possible claims to a wrongful conviction, to factual innocence rooted in exoneration jurisprudence.17 According to some scholars, factual exonerations may have confounded the wisdom behind the Blackstone Ratio and its overarching message, i.e., criminal law and procedure ought to be weighted in favor of innocence to avoid wrongful conviction, even if there is a chance that the guilty will benefit as well. In other words, a system of justice that is fair to all and seeks to protect the innocent from wrongful prosecutions must apply safeguards that will be over inclusive. The calculations of truth and fairness are rooted in a system of justice based on due process (or a presumption of due process). The scholarship collected here attempts to address questions of whether the concept of innocence is selective or categorical.


  • Admitting Guilt by Professing Innocence: When Sentence Enhancements Based on Alford Pleas Are Unconstitutional, 63 Vand. L. Rev. 1755 (2010)
    “This Note argues that any fact that enhances an Alford defendant’s sentence should be either specifically admitted by the defendant or proven to a jury beyond a reasonable doubt. Part II provides background information on the mechanics of Alford pleas and plea bargaining generally. In the context of Alford pleas, courts disagree on whether it is proper to base an enhancement on alleged conduct that is not crucial to the statutory definition of the crime, is not alleged in the charging instrument, and is not admitted by the defendant or proven to a jury beyond a reasonable doubt. Part III examines the nature of this conflict by briefly summarizing the landmark Supreme Court cases of Apprendi and Blakely, as well as the important exception to those cases required by Almendarez-Torres. The difficulty surrounding the prior conviction exception arises in many contexts, but this Note focuses on the constitutional problems that arise when prior conviction enhancements stem from Alford pleas. Part III explores how this problem has divided the lower federal and state courts that have addressed the constitutionality of sentence enhancements for Alford defendants in the wake of Apprendi and Blakely. Part IV argues that because Alford defendants do not admit the underlying facts of their crimes, the only facts that can be conclusively established by their pleas are those that are minimal to sustain a conviction. If a judge adds a sentence enhancement based on some fact not admitted by the defendant, this is a violation of Blakely’s rule that every fact that enhances a defendant’s sentence beyond what would otherwise be the maximum sentence must be either admitted by the defendant or proven to a jury beyond a reasonable doubt. Part V concludes by suggesting that courts and defendants alike should be wary of the Apprendi problems that Alford pleas can present.”

  • Criminal Sanctions in the Defense of the Innocent (SSRN 2011)
    “Under the formal procedural rules, fact-finders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that fact-finders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof fact-finders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments – a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated convictions. By setting mandatory penalties of sufficient size, the legal system can induce fact-finders to convict only if sufficient admissible evidence proves the defendant’s guilt. This Article applies this theoretical framework to three concrete contexts that involve a high risk of erroneous convictions: the right to silence, inchoate crimes and the punishment of recidivists. It is shown that a sanctioning regime that is attuned to the probative function of punishment can protect innocent defendants from unsubstantiated convictions while not sacrificing the dictates of both deterrence and retribution.”

  • Death Penalty in a World Where the Innocent Are Sometimes Convicted, 41 Tex. Tech L. Rev. 187 (2008)
    “In ‘The Death Penalty in a World Where the Innocent are Sometimes Convicted’, Professor Loewy explores the justifications for and reasons against capital punishment. He first argues that, given the amount of innocent people that are convicted, it is statistically likely that the United States has or will execute an innocent person. Loewy then explores capital punishment as it applies to those proven guilty and weighs the balance of the perceived advantages and disadvantages. Loewy finds the balance against capital punishment for those proven guilty, and he uses this conclusion to argue that since we live in a world where guilt is very often doubtful in some cases, the death penalty can definitely not be justified.”

  • Due Process, Predictive Justice and the Presumption of Innocence (SSRN 2011)
    “The most commonly repeated adage in U.S. criminal justice is the presumption of innocence: defendants are deemed innocent until proven guilty. Historically, this presumption carried important meaning both before and during trial. However, in light of state and federal changes in pretrial practice, as well as Supreme Court precedent restricting the presumption’s application to trial, the presumption of innocence no longer protects defendants before trial. These limitations on the presumption are fundamentally inconsistent with its constitutional roots. The results of the presumption’s diminution are also troubling as the number of defendants held pretrial has steadily increased such that the majority of people in our nation’s jails have not been convicted of any crime. Few contemporary legal scholars have focused on the dwindling pretrial presumption, let alone its constitutional implications. This article fills the void by examining how the Due Process Clause provides the constitutional basis for the presumption of innocence and how that presumption secures at least one pretrial right: the right to release on bail, absent serious flight risk. For the first time, this article introduces three rules to ensure that the pretrial presumption of innocence remains true to its constitutional roots. Returning the presumption to its constitutional foundation and ensuring its application in ways that are consistent with that foundation will result in less confusion by courts and a more consistent manner to make pretrial decisions.”

  • Exoneration and Wrongful Condemnations: Expanding the Zone of Perceived Injustice in Death Penalty Cases, 37 Golden Gate U. L. Rev. 131 (2006)
    “In this article I [Craig W. Haney] argue that despite the very serious nature and surprisingly large number of these kinds of exonerations, revelations about factually innocent death-sentenced prisoners represent only the most dramatic, visible tip of a much larger problem that is submerged throughout our nation’s system of death sentencing. That is, many of the very same flaws and factors that have given rise to these highly publicized wrongful convictions also produce a more common kind of miscarriage of justice in capital cases. I refer to death sentences that are meted out to defendants who, although they may be factually guilty of the crimes for which they were placed on trial, are not ‘death worthy’ or ‘deserving’ of the death penalty. This includes the many who, if their cases had been handled properly by competent counsel at the time of trial and adjudicated in a fairer and more just system, would have been sentenced to life instead.
    This more common kind of miscarriage of justice has resulted in, to use James Liebman’s evocative phrase, ‘the overproduction of death.’ Liebman has argued that ‘trial-level actors drastically overproduce death sentences,’ rendering many more times the number of death verdicts than ‘the system means to carry out,’ and that they do so because of the ‘strong incentives’ they reap in the form of the ‘robust psychic, political, and professional rewards.’ In addition to these incentives and rewards, I argue that there are other aspects of the system of death sentencing that consistently bias and badly distort the outcome of capital cases. Beyond the flaws and biases that produce the wrongful convictions (or what might be called ‘the overproduction of guilt’) there are a number of additional problems, many of which are unique to death penalty cases, that undermine the fairness and reliability of the process of death sentencing itself.”

  • Framing Wrongful Convictions, 2008 Utah L. Rev. 5
    “Concern over wrongful convictions has led to an ‘innocence movement’ that has managed to bridge ideological divides, rouse people to action, and achieve unprecedented success in reforming the operation of the death penalty. In this short Article, written as part of the symposium ‘Beyond Biology: Wrongful Convictions in a Post-DNA World,’ I [Susan A. Bandes] consider the fraught terms of the debate about the content of the category of wrongful convictions. Delineating the category raises two controversial issues: who should be considered wrongly convicted, and how to characterize the governmental misconduct that leads to these miscarriages of justice.
    This Article considers whether it remains helpful to organize our thinking about injustice in capital cases around the notion of wrongful convictions. I suggest that though we should celebrate and learn from the successes of the wrongful convictions movement, we need to look beyond innocence and create outrage at a broader spectrum of injustice. I also explore a conundrum about framing police and prosecutorial misconduct. Although it is often essential to name and condemn bad faith behavior by police and prosecutors, it may also be counterproductive in many instances.
    We should explore why certain ways of framing injustice have so much power, and what the ramifications are for the shape of the reform movement and the future of capital punishment. The challenge ahead is to find ways to communicate concern for more than just the innocent, and to communicate the dangers of systemic governmental misconduct that defies traditional definitions of blameworthiness.”

  • Gateway to Justice: Constitutional Claims to Actual Innocence, 64 U. Miami L. Rev. 1279 (2010)
    “This article examines the extent of wrongful convictions and the procedural paradox that complicates any actual innocence claim. Specifically, statutes attempting to insulate petitioners from constitutional errors or the misappropriation of law fail to provide adequate safeguards against wrongful convictions. DNA evidence and new technologies are exposing more and more wrongful convictions every day, revealing innocent individuals who have had fair and impartial trials.”

  • Innocence After Death, 60 Case W. Res. 687 (2010)
    “Despite the rapidly growing innocence movement, five unusual innocence cases have escaped the attention of most commentators: in Florida, Indiana, Massachusetts, and Texas, courts have recently exonerated wrongfully convicted defendants following their deaths in prison. This article identifies this extension of the innocence movement and argues that posthumous exonerations give courts a rare opportunity – seized upon in the 2009 posthumous exoneration of Timothy Cole in Texas – to make a detailed investigation of the causes leading to a defendant’s wrongful conviction. The article argues that these exonerations are important not only in providing justice for victims, communities, and the families of criminal defendants, but also because of their potential contribution to the effort to discover the causes of – and ultimately prevent – wrongful convictions. Legislatures should therefore expand the currently tenuous jurisdictional and procedural bases for posthumous exonerations, perhaps using the quasi-inquisitorial judicial model followed in Cole. This is particularly important in states without innocence commissions, which are the best suited institutions to conduct this sort of inquiry. Recognition of the errors that led to an innocent defendant’s conviction – whether the defendant is now alive or dead – is essential in preventing the future conviction of innocent defendants.”

  • Innocence is Different: Taking Innocence into Account in Reforming Criminal Procedure (SSRN 2011)
    “In the project of which this paper is the first part, we attempt an overview of what an ‘innocentric’ system would look like, and what changes would be required to reform our current practices to come as close to such a system as possible. We approach this task with eyes open. In criminal procedure, most individual reforms, even the ones that should be least controversial, predictably face stiff opposition from one constituency or another that sees the reform as a lost advantage, or at least sees no advantage in the reform. Police and prosecutors may fear the loss of current practices which they perceive as useful for convicting those whom they believe to be guilty. The defense bar may fear that some reforms will bring new disadvantages to the majority of their clients (the factually guilty ones) for the benefit of the innocent minority. Those whose main interest is in the root-and-branch abolition of capital punishment may fear that some reforms will derail such abolition efforts, as concerns about the execution of the factually innocent are reduced. Those whose main focus is giving crime victims ‘closure’ may fear that some of the reforms may banish public fury from the trial of guilt in ways that disappoint the desires of victims. Judges, who by definition have been successful players under the current system, may indulge the well-known human tendency to believe that the system in which they have been personally successful has virtues beyond those it appears to have when subjected to critical analysis. Lawyers in general may indulge the quite common romantic notion that ‘our adversary system’ is already the best of all possible worlds, reinforced by the Burkean notion that the unintended consequences of changing institutions hallowed by long practice are likely to be worse than simply pursuing business as usual.
    We will deal with such concerns as we judge they may arise in regard to any given change espoused. But in general, we think it appropriate at the outset to call on the members of all these ‘stakeholder’ groups (as they appear to be called today) to recognize the special claims of another stakeholder group, that is, the convicted innocent (including the innocent who will be convicted if the proposed reforms are not undertaken). We call upon all constituencies to realize consciously and explicitly that, whatever other concerns are at stake, ‘innocence is different.'”

  • Innocence Protection in the Appellate Process, 93 Marq. L. Rev. 591 (2009)
    “While the appellate process is intended to facilitate the search for the truth in both criminal and civil cases, that purpose is especially important in criminal cases. In criminal cases, fact-finding accuracy is the driving objective, and preventing wrongful conviction of the innocent is a paramount concern. While truth also matters in civil cases, society generally has less interest in the accuracy or outcome of most cases than it does in providing a mechanism for efficiently and peacefully resolving disputes between private parties. Providing a failsafe against erroneous judgments about factual guilt is thus a uniquely important core function of the appellate process in criminal cases.
    If protecting against mistaken conviction of the innocent is indeed a primary objective in criminal appeals, it is fair to ask how well the system serves that function. Unfortunately, judging by the recent evidence, especially the empirical evidence from cases in which postconviction DNA testing has proved that an innocent person was wrongly convicted, the appellate process in criminal cases is largely a failure on this most important score. In four parts, this Article examines that record of failure, explores some of the reasons for that failure, and proposes possible reforms that might enhance the appellate system’s ability to protect against wrongful convictions.”

  • Innocence Unmodified (SSRN 2010)
    “The Innocence Movement has unwittingly participated in the construction of a binary between ‘actual’ and ‘legal’ innocence. Because the Innocence Movement has focused on defendants who did not commit the actions underlying their convictions, courts, lawyers, and the larger society have come to believe that a person is wrongly convicted of a crime only if the person is ‘actually’ innocent. This perception overlooks the fact that a person can be wrongly convicted if their constitutional rights were violated in the process of obtaining the conviction. As such, the Innocence Movement devalues ‘legal’ innocence and the constitutional values that underlie a broader conception of innocence. In order to affirm the importance of those constitutional values, this Article argues for the need to reclaim an understanding of innocence unmodified by qualifiers such as ‘actual’ or ‘legal.’ Part I explains how the concept of ‘actual’ innocence has played a pivotal role in the development of the Innocence Movement. Part II examines innocence unmodified in the context of trials. It explains that one reason to protect innocence unmodified is because the Supreme Court has not yet held that ‘actual’ innocence alone is enough to reverse a wrongful conviction; constitutional claims underlying an ‘actual’ innocence claim, working together, are necessary to achieve justice. Part III explores innocence unmodified in the context of guilty pleas. It reveals the degree to which the Court has itself reduced innocence to a binary — prioritizing ‘actual’ innocence over fundamental constitutional protections for all people, including people who might be wrongly convicted if the courts do not safeguard their constitutional rights. The Article concludes that a modified conception of innocence dilutes the constitutional core that protects us all — innocent or guilty alike.”

  • Investigation of Top-Down vs. Bottom-Up Processing in Post-Appellate Review of a Criminal Case, SSRN (2011)
    “Convicted persons who claim to be factually innocent frequently seek assistance from advocacy organizations that help investigate and establish actual innocence. This experiment examined the extent to which the knowledge that a case has passed pre-screening by an innocence project influences case-reviewer judgment through top-down case processing. One hundred-fifty-nine participants role-played case reviewers, evaluated discovery for a criminal case, and evaluated the case. Prior to evaluation, half of the participants were instructed that the case was not previously adjudicated, whereas the other half was told that the case was referred by an innocence advocacy organization. Instructions significantly influenced participants evaluations, suggesting the influence of top-down processing of case discovery.”

  • Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655 (2010)
    “Charging discretion is no monolith. Instead, prosecutors consider three sets of reasons to decline or pursue charges: legal reasons, administrative reasons, and equitable reasons. The conventional wisdom is that prosecutors are best positioned to evaluate these reasons. Consequently, prosecutors are granted almost unfettered charging discretion. More narrowly, when prosecutors decline or pursue charges for equitable reasons, they exercise their prerogative unchecked. This is defensible only if prosecutors are most competent to exercise equitable discretion. That question is almost never asked or critically analyzed. Instead, case law and commentators justify prevailing institutional design with reference only to uncontroversial understandings that prosecutors know most about legal merits and strategic priorities. In fact, several reasons exist to believe that prosecutors are ill suited to consider the normative merits of potential charges. First, professional prosecutors fail sufficiently to individualize cases, lumping them instead into legal boxes. Second, professional prosecutors prioritize institutional concerns over equitable particulars. Notably, prosecutors are least competent to adequately consider the equities in the precise types of cases in which commonsense discretion matters most. Specifically, in the petty-crime context, absolute enforcement of expansive code law is both undesirable and impossible, and, consequently, measured exercises of equitable discretion are warranted and anticipated. Put simply, petty-crime enforcement should turn on thoughtful evaluation of equitable considerations, such as relative blameworthiness. Legal guilt, by contrast, is often peripheral (or, in any event, presumed). In this way, easy legal cases may raise tough normative questions. And prosecutors have no special claim to know the answers, as the novel data that I [Josh Bowers] provide help to show.”

  • Limited Diagnosticity of Criminal Trials (SSRN 2011)
    “A fundamental function of the criminal trial is to determine the facts correctly in order to distinguish between guilty and innocent defendants, and between strong and weak prosecutions. This Article seeks to answer a simple question: How good is the criminal trial at reaching accurate factual conclusions?
    The Article applies a body of experimental psychology to examine the ability of factfinders to assess the evidence and draw correct inferences from it. The psychological research indicates that the mental processes involved in determining facts in criminal trials are more complex and fickle than generally believed. Part I exposes the difficulties in deciphering the human testimony that is frequently encountered in criminal trials, including eyewitness identification, witness memory for the event, confessions, alibis, and witness demeanor. The task is further hindered by two systemic problems with the integrity of the evidence: false corroboration and the paucity of the investigative record. Part II demonstrates that the inference-making process is susceptible to distortion from the context of legal decisionmaking. Intrusive factors include courtroom persuasion, exposure to impermissible information, emotional arousal, racial prejudice, and the decisionmaker’s cognitive process itself.
    In sum, the accuracy of the criminal trial falls short of the system’s high epistemic demands and the certitude it exudes. The findings contribute to our understanding of the causes of mistaken verdicts, particularly wrongful convictions. The Article proposes ways to improve the diagnosticity of the process.”

  • Longitudinal Guilt: Repeat Offenders, Plea Bargaining, and the Variable Standard of Proof, 63 Fla. L. Rev. 431 (2011)
    “The Article introduces a new concept – ‘longitudinal guilt’ – which invites readers to reconsider basic presuppositions about the way our criminal justice system determines guilt in criminal cases. In short, the idea is that a variety of features of criminal procedure, most importantly, plea bargaining, conspire to change the primary ‘truthfinding mission’ of criminal law from one of adjudicating individual historical cases to one of identifying dangerous ‘offenders.’ This change of mission is visible in the lower proof standards we apply to repeat criminal offenders.
    The first section of this Article explains how plea-bargaining and graduated sentencing systems based on criminal history effectively combine together to lower the standard of proof for repeat criminals. The second section describes several additional procedural and evidentiary rules that further effectively reduce the standard of proof for recidivists. The third section argues that the net effect is a criminal justice system that is primarily focused on the identification of a class of ‘dangerous offenders’ based upon their repeated interactions with the system over time rather than the accurate resolution of specific allegations of wrongdoing in individual cases, as is conventionally supposed. In a phrase, we have moved toward a system that constructs guilt ‘longitudinally.’ The Article concludes with a few brief thoughts on the merits and demerits of longitudinal guilt.”

  • Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Wash. U. L. Rev. 1 (2009)
    “Every year in this country, hundreds of people are convicted of having shaken a baby, most often to death. In a prosecution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the defendant caused the infant’s death by shaking, and that the shaking was sufficiently forceful to constitute depraved indifference to human life. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling.
    New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. Most recently, after a seventeen-month investigation costing $8.3 million, a Canadian commission recommended that all SBS cases be reviewed.
    In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change: for the first time, an SBS conviction was overturned last year because ‘newly discovered’ scientific evidence would likely create a reasonable doubt about the defendant’s guilt; also for the first time, a state Supreme Court is considering whether a trial judge erred in excluding as unreliable the prosecution’s expert testimony regarding SBS; and the U.S. Supreme Court is now reviewing a petition seeking review of a habeas grant in an SBS case. Yet the response has been halting and inconsistent. To this day, triad-based convictions continue to be affirmed, and new prosecutions commenced, as a matter of course.
    These developments have not attracted the attention of legal scholars. In the face of this void, this article identifies a criminal justice crisis and begins a conversation about its proper resolution. The conceptual implications of the inquiry – for scientific engagement in law’s shadow, for future systemic reform, and for our understanding of innocence in a post-DNA world – should assist in the task of righting past wrongs and averting further injustice.”

  • In Praise of the Guilty Project: A Criminal Defense Lawyer’s Growing Anxiety About Innocence Projects, 13 U. Pa. J. L. & Soc. Change 315 (2009-2010)
    “Given all this–the draw of innocence, the importance of vindicating innocence, the fact that innocence advocacy may have helped level the criminal justice playing field, the goodness of defending the innocent–how can a criminal defense lawyer have the audacity, the nerve to complain? Why can’t Innocence Projects and ‘Guilty Projects’–the traditional law school criminal defense clinic–coexist in peace, each making an important contribution? What possible concerns could be raised that are not rooted in envy? In this essay I [Abbe Smith] will discuss three growing concerns about Innocence Projects: first, the tendency toward innocence ‘one-upmanship’ or arrogance; second, the focus on innocence–especially DNA-proven innocence–as the chief currency in criminal justice reform; and third, the popularity and increasing ascendancy of Innocence Projects at law schools.”

  • Presumption of Innocence in the French and Anglo-American Legal Traditions, 58 Am. J. Comp. L. 107 (2010)
    “Despite evidence that the presumption of innocence was something more than an instrument of proof, common law scholars in the nineteenth century reduced the doctrine to an evidentiary rule without acknowledging the role of the principle as a shield against punishment before conviction in both the civil and common law traditions. The resulting narrow conception of the presumption of innocence has since pervaded the legal and public discourse in the United States, where suspects are increasingly treated as guilty before trial. Using the French Declaration of Rights of 1789 and the English Prison Act of 1877 as points of reference, this Article retraces the origins and subsequent development of a fundamental principle of justice whose dual dimension–rule of proof and shield against premature punishment–has yet to be formally recognized in modern Anglo-American jurisprudence.”

  • Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause (SSRN 2011)
    “In certain circumstances, a prisoner who challenges her conviction must convince a court that she is actually innocent in order to get relief. Unfortunately, such judicial exonerations often fail to persuade prosecutors, who are generally free to retry prisoners who successfully challenge their convictions. There have been several instances in which prisoners have convinced courts of their innocence and overturned their convictions, only to have prosecutors bring the exact same charges against them a second time. This Article argues that the Double Jeopardy Clause protects these exonerated defendants from the ordeal of a second prosecution. Permitting prosecutors to continue to pursue such individuals contradicts established Supreme Court case law, violates the policies animating the Double Jeopardy Clause, and impairs the operation of the criminal justice system.”

  • Protecting the Innocent : Part of the Solution for Inadequate Funding for Defenders, Not a Panacea for Targeting Justice , 75 Mo. L. Rev. 931 (2010)19

    “In this article I [Robert P. Mosteller] examine the importance of the role that defenders play in protecting the innocent to invigorate the drive for adequate indigent defense funding during a time of increased societal concern with unjust convictions. I also recognize the inherent dangers and difficulties in harnessing that societal concern.

    In Part I, I argue that for many defendants, including the most problematic types as demonstrated by DNA exonerations, innocence is not actually knowable to anyone in the system, even defense attorneys. These problematic cases in which the defendants are in fact innocent do not generally present themselves as innocence cases but instead only suggest possible weakness in the prosecution’s evidence, and the defense usually only attempts to raise reasonable doubts in the jury’s mind. Tried by well by adequately funded defense counsel, a percentage of these cases will still result in erroneous convictions of the innocent, but fewer of them. Moreover, innocent defendants will have received all society can actually guarantee in a system where humans decision-makers deal with uncertainty, which is a fair proceeding.

    In Part II, I examine a proposed partial solution to inadequate funding, which is a specific application of a rationing system, specifically examining a proposal that attempts to give priority to representing the likely innocent. I conclude that this proposal, even if logically justifiable and plausible as a professional goal of public defenders, can provide no practical guidance that would meaningfully offset inadequate resources. Moreover, it could undermine the arguments for adequate defense funding by suggesting that the priority cases of the likely innocent can be defended well if defenders would simply focus their efforts on observable pretrial indicators.

    In Part III, I highlight one of what I believe is one of the most realistic and workable proposals to improve indigent defense, which is the creation of a federally supported center to evaluate and finance improvements and reform in state indigent defense. This proposal would have significant impact, and it is politically viable. This reform effort would greatly benefit from the support of the innocence movement. I also address another recent proposal that supports the effort to improve indigent defense through federal support that goes awry with an apparent quid pro quo that would further restrict federal habeas. It promises to protect the innocent, but does so only for those rare cases where innocence is clear, and it would eliminate review of ineffective assistance of counsel and Brady claims, which present substantial reasons to doubt guilt when meritorious and constitute the best showing that innocent defendants can usually ever make.
    In Part IV, I explore preliminary strategies for the use of innocence by those leading the battle for increased defense funding. The argument has its challenges and pitfalls, but it is substantially completely valid. Defender leadership must develop the supporting facts and examples and present them effectively.”

  • Signaling and Plea Bargaining’s Innocence Problem, 66 Wash & Lee L. Rev. 73 (2009)
    “The dominant theoretical model of plea bargaining predicts that, under conditions of full information and rational choice, criminal cases should uniformly be settled through plea bargaining. That prediction holds for innocent and guilty defendants alike. Because it is perfectly rational for innocent defendants to plead guilty, plea bargaining might be said to have an ‘innocence problem.’ Plea bargaining’s innocence problem is, at bottom, the result of a signaling defect. Innocent defendants lacking verifiable innocence claims are pooled together with guilty defendants who falsely proclaim innocence. As a result, both groups of defendants are treated similarly at trial and in plea bargaining. Signaling defects, however, at least in theory, can be overcome. As economists have observed, a variety of signaling mechanisms reliably communicate nonverifiable information among parties. This Article considers one such signaling mechanism, subwagers, and attempts to demonstrate their capacity to signal the kind of private information typical in the plea bargaining context. Not only are subwagers theoretically possible, the Article argues that police interrogation already functions as such a subwager. The Article addresses the theoretical basis and empirical evidence supporting the hypothesis regarding interrogation’s important impact on plea bargaining, and concludes that plea bargaining theory must be modified to take account of the effects of subwager-type signaling.”

  • Why Defense Attorneys Cannot, But Do, Care About Innocence, 50 Santa Clara L. Rev. 1 (2010)
    “At a time of special concern for the innocence, this article reexamines the apparent anomaly that trial-level defense attorneys claim they care neither about guilt nor innocence. Innocence currently fuels procedural reforms benefitting criminal defendants, but that effect could change, and innocence might become a wedge issue dividing progressives if reforms promise targeted protection for the innocent. Defense counsel attitudes about the irrelevance of innocence seem to invite such division. I [Robert P. Mosteller] explain why excellent counsel for all, not just the apparently innocent, should be strongly supported by innocence advocates.
    Defense counsel institutionally cannot allow apparent guilt to affect their zealous representation. Although special treatment for those perceived innocent could likewise devolve into second-class representation for many, the problem with special care for the apparently innocent is less institutional than practical. Virtually all those charged with serious crimes assert innocence to their attorneys, who possess no reliable way to determine truth in seriously contested cases. Nevertheless, defense attorneys actually do react differently when they believe they have encountered innocence. The hard-boiled defense attorney’s unconcern with innocence is largely necessary but not fully accurate.
    I find no ‘magic bullet’ to allow defense attorneys to focus on the likely innocent, only tolerable compromises. Those committed to protecting the innocence should vigorously support adequate resources for defenders who represent the unsorted mass of criminal defendants. Such defenders provide the best hope for many innocent defendants who, lacking clear proof of innocence, are hidden among the guilty.”


1 See Coffin v. United States, 156 US 432 (1895)(“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”).

2 See In re Winship, 397 US 358, 363 (1970)(“The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence . . . .’ [citation omitted].”).

3 See Blackstone Ratio in 4 William Blackstone, Commentaries 358; see generally Alexander Volokh, n Guilty Men, 146 U. Penn. L. Rev. 173 (1997).

4 See, e.g., Jesse McKinley, Dozens of Cases to Be Dropped in San Francisco Police Scandal, N.Y. Times, March 9, 2011 (“With a group of undercover police officers under suspicion of perjury and conducting illegal searches, the San Francisco district attorney said Wednesday that his office would drop dozens of drug and robbery cases and continue to investigate scores more for possible dismissal.”); Kathleen Kerr, DA Plans Retest of Felony Drug Evidence, Newsday, March 9, 2011 (“Nassau District Attorney Kathleen Rice plans to have all felony drug evidence collected over the past three years — as many as 3,000 cases — retested because of foul-ups at the county’s police crime lab.”). Complete Coverage: Nassau’s Crime Lab Problem, Newsday, Feb. 10, 2011 to present. See generally Michael Avery, Obstacles to Litigating Civil Claims for Wrongful Conviction: An Overview. 18 B.U. Pub. Int. L.J. 439, 439-440 (2009)(“The civil rights causes of action [42 U.S.C. S 1983] that the wrongfully convicted might theoretically allege include claims based upon: False Arrest or False Imprisonment; Malicious Prosecution; Retaliatory Prosecution; Fabrication of Evidence; Suppression of Exculpatory Evidence; Suggestive Eyewitness Identification Procedures; Coerced Confessions; [and] Ineffective Assistance of Counsel”. [bullets replaced with semi-colons]).

5 See generally Lyle Denniston, Davis Innocence Plea Rejected, SCOTUSblog, Mar. 28, 2011(“In turning aside all legal requests, the Court bypassed a chance to answer two fundamental questions that the Court has never answered explicitly about convicted individuals’ claims of innocence: one, whether the Constitution bars the execution of an individual who is actually innocent of the crime, and, two, what standard of proof are federal judges to use in judging whether an individual actually is innocent. In Judge Moore’s decision, he ruled that it would be unconstitutional to execute someone who is actually innocent, but set a fairly tough standard of proof; applying that standard, he found that Davis is not innocent. On Monday, that decision became final.”). See generally Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard UP, 2011); Brandon L. Garrett, Getting Guilty Right, Boston Globe, Mar. 27, 2011; Ken Strutin, Actual Innocence and Freestanding Claims for Relief, LLRX, Nov. 25, 2010.

6 This perception might be akin to a CSI effect, where expectations are formed by the portrayal of criminal justice in real and fictional media. See generally Lisa Kort-Butler and Kelley J. Sittner Hartshorn, Watching The Detectives: Crime Programming, Fear of Crime and Attitudes About the Criminal Justice System, 52 Sociological Q. 36 (2011).

7 See Abbe Smith, In Praise of the Guilty Project: A Criminal Defense Lawyer’s Growing Anxiety About Innocence Projects, 13 U. Pa. J. L. & Soc. Change 315, 324 (2009-2010) (“The dominance of the rhetoric of innocence also comes at the expense of the not-quite-so-innocent but equally unfairly treated. Examples of the not-quite-so-innocent run the gamut. There are criminal defendants who are guilty of something but not the worst thing they are charged with. There are defendants who are guilty of something other than what they are charged with. There are defendants who committed the crime charged but with significant mitigating or extenuating circumstances. There are defendants who committed the crime but they had never done anything like this before, they lost control in a trying situation. There are defendants who committed the crime and it is no wonder in view of how they came into the world and what they endured after. There are defendants who committed the crime and have no excuse whatsoever but, as death penalty lawyer Bryan Stevenson says, ‘[e]ach of us is more than the worst thing we ever did.’ (footnotes omitted).”). See also Samuel Wiseman, Innocence After Death, 60 Case W. Res. 687, 749-750 (2010) (“The term ‘wrongful conviction’ itself is, perhaps, artificially limited, as it excludes many convictions that are highly problematic but not technically ‘erroneous–such as, for example, those obtained by guilty pleas coerced by over-charging.’ Elevated attention to ‘glamorous’ innocence claims may distract resources from the many other problems in the system that need attention, such as disproportionate punishment. As Susan Bandes argues in the capital punishment context, ‘Given the enormous amount of work left to be done in reforming the criminal justice system . . . it would be dispiriting to think that the movement drew all its power from revulsion at the execution of those able to prove they were blameless.” (footnotes omitted).).

8 See Emily Hughes, Innocence Unmodified (SSRN 2010), at 6. There are also “supercategories” of guilt that pervade the justice system. See, e.g., Presumed Guilty: Prosecutions Without Evidence, Cleveland Plain Dealer, Nov. 21, 2010; Laurence A. Benner, The Presumption of Guilt: Systemic Factors that Contribute to the Ineffective Assistance of Counsel in California, 45 Cal. W. L. Rev. 263 (2009); Meghan Shapiro, An Overdose of Dangerousness: How “Future Dangerousness” Catches the Least Culpable Capital Defendants and Undermines the Rationale for the Executions It Supports, 35 Am. J. Crim. L. 145 (2008).

9 Hughes, supra note 8, at 7. See also Lisa Graybill, Review of Unfair Death Penalty Sentencing as Important as Innocence, Dallas Morning News, Apr. 4, 2011.

10 Smith, supra note 7, at 325 (“A focus on factual, DNA-proven innocence also threatens to change the discourse about wrongful convictions. Convictions are wrongful even if the convicted person is guilty when there is demonstrable unfairness. Imprisonment is wrongful if the person in prison is serving a sentence disproportionate to the circumstances of the crime or who the person is or has become. Factual innocence has never been the gravamen of a wrongful conviction, and should not be. (footnote omitted).”).

11 See Herrera v. Collins, 506 US 390, 399-400 (1993)(“Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. Cf. Ross v. Moffitt, 417 U. S. 600, 610 (1974) (‘The purpose of the trial stage from the State’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt’).”); McKune v. Lile , 536 U.S. 24, 29 (2002)(“Kansas officials and officials who administer the United States prison system have made the determination that it is of considerable importance for the [Sexual Abuse Treatment] program participant to admit having committed the crime for which he is being treated and other past offenses. . . . Respondent [convicted sex offender in the custody of the Kansas Department of Corrections] contends this incentive system violates his Fifth Amendment privilege against self-incrimination. Kansas’ [Sexual Abuse Treatment] rehabilitation program, however, serves a vital penological purpose, and offering inmates minimal incentives to participate does not amount to compelled self-incrimination prohibited by the Fifth Amendment.”).

12 See, e.g., Alexander Bunin, Federal Convictions Reversed (2009)(“The following are cases from United States Courts of Appeal and the United States Supreme Court. The opinions contain at least one point favorable to criminal defendants.”).

13 See, e.g., Paul M. Rashkind, United States Supreme Court Review – Preview – Overview (2011).

14 See, e.g., ABA Criminal Justice Section Policy Initiatives and Updates.

15 See generally Dan Vergano, DNA Upends Century-Old Murder Verdict, USA Today, Jan. 10, 2011; Executed in Error Hawley Crippen (Sept. 25, 2008 PBS); Cameron Todd Willingham: Wrongfully Convicted and Executed in Texas (Innocence Project); Chuck Lindell, Willingham Report Released, The Statesman, April 14, 2011.

16 See generally Erik Luna, The Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703, 719 (2005).

17 See Hughes, supra note 8, at 23 (“Davis [In re Troy Davis, 130 S. Ct. 1 (2009)] shows that one reason to protect an unmodified conception of innocence is because under the Court’s existing jurisprudence, ‘actual’ innocence and ‘legal’ innocence go hand-in-hand to achieving justice for a wrongly convicted person: the ‘actual’ innocence claim opens the door to consideration of the underlying ‘legal’ claim. [footnote omitted]). Although Davis did not prevail on the underlying ‘legal’ claims, his ‘actual’ innocence claim was the device through which his ‘legal’ claims were heard at all. In other words, but for his ‘actual’ innocence claim, he may not have received his day in court on his underlying ‘legal’ claims.”).

18 All footnotes have been omitted from excerpts and abstracts.

19 This article was published as part of a special issue of the Missouri Law Review dedicated to public defense. See Symposium: Broke and Broken: Can We Fix Our State Indigent Defense System?, Mo. L. Rev. Vol. 75, Issue 3, Summer 2010.

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