The Age of Innocence: Actual, Legal and Presumed

By Ken Strutin, Published on May 5, 2011

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.



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.