Ken Strutin’s guide comprises recent publications and other notable resources concerning the relationship between the administration of bail and the requirements of due process. Pretrial detention of suspects directly impacts the presumption of innocence. The cornerstone of the justice system is that no one will be punished without the benefit of due process. Incarceration before trial, when the outcome of the case is yet to be determined, cuts against this principle. The Founders were aware of the dangers inherent in indiscriminate imprisonment, which is one of the main reasons behind the inclusion of the Eighth Amendment in the Bill of Rights, prohibiting excessive bail.
Ken Strutin reasons that any accounting of the justice system would put the presumption of innocence at the top of the ledger. 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. The materials Ken has researched and documented for this guide focus on the drift from unitary innocence, which encompasses all possible claims to a wrongful conviction, to factual innocence rooted in exoneration jurisprudence. 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.
Ken Strutin has written extensively for LLRX.com on criminal law issues. He argues that false confessions, bad eyewitness identifications, and faulty forensics, among other problems, have shown that seemingly iron clad adjudications can reach the wrong result. A ‘guilty’ verdict only indicates that the government has proven beyond a reasonable doubt that the defendant committed each and every element of the crime, and not that the defendant actually committed the crime. A freestanding claim of actual innocence is a potentially powerful tool to assail a verdict that points to the wrong person. Still, courts have made only small gains in recognizing actual innocence generally as a basis for contesting a wrongful conviction. This article collects selected scholarship on “actual innocence” and litigating post-conviction claims that go beyond the procedural metrics of the trial process.
The media’s popularization of certain types of evidence may be inspiring a “CSI effect” on decision makers according to Ken Strutin. There is a question about whether impressions created by the media in its treatment and portrayal of forensic proof as either irrefutable or absolutely necessary for conviction is truly impacting the outcome of criminal cases. Ken’s guide is a collection of select legal scholarship and media studies that illuminates the extent of the phenomenon and whether it needs to be addressed and how.
In criminal cases, there have been challenges on sufficiency grounds and concerns over the use of forensic DNA evidence as the sole or primary proof of guilt. Uncorroborated DNA matching might not be enough to satisfy the burden of establishing guilt beyond a reasonable doubt. The reliability of forensic DNA testing results might be questioned for any number of reasons, e.g., laboratory error, cross-contamination, interpretive bias or fraud, etc. Ken Strutin’s essay provides an overview of nuclear DNA typing, a sampling of the kinds of discretionary decisions that analysts often confront when interpreting crime scene samples, and concludes with with remarks about current disputes in forensic DNA typing, and how recognition of its inherent subjectivity might inform and illuminate these debates.
Interpreting Rule 1.6(b)(1) of the ABA Model Rules of Professional Conduct in the context of wrongful convictions is complicated by evidentiary and practical considerations surrounding the potential use of such information. This article by Ken Strutin examines resources about several notable cases and the scholarly literature analyzing different approaches to resolving this dilemma.
Ken Strutin’s article examines key sources for surveys and public polling concerning the criminal justice system. In addition to overview studies about the application of surveys to criminal justice, the selected topics include: crime, criminal histories, death penalty, public defense, sentencing, sex offenses, treatment, and reentry.
The activities of users and the information being posted on social networking sites are having wide ranging effects on the administration of justice, law enforcement investigation, prosecution and defense. Ken Strutin’s guide provides a snapshot of many of the novel and varied uses of social networking evidence in the field of criminal justice.
Ken Strutin’s article highlights selected recent publications, news sources and other online materials concerning the applications of cognitive research to criminal law as well as basic information on the science and technology involved.
Ken Strutin’s article includes a collection of recent and representative web-based materials concerning DNA technology developments and legal research on the impact of wrongful convictions and DNA exonerations on the justice system.