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September 21, 2014

"Under Pressure: The Hazards of Maintaining Innocence after Conviction"

The title of this post is the title of this intriguing new piece authored by Daniel Medwed and now available via SSRN. Here is the abstract:

Innocent people convicted of child abuse or sexual offenses face a classic “Catch-22” situation that has ramifications on their prospects for parole and for exoneration in court. If prisoners continue to maintain their innocence while imprisoned, then corrections officials may interpret this behaviour as demonstrating a key trait of sex offenders — “denial” — and make them ineligible for treatment programs that are a prerequisite for parole in many jurisdictions. Even if they are technically eligible to apply for parole, inmates who claim innocence before parole boards harm their chances for release based on the belief that those unable to admit guilt are likely to re-offend; they are perceived as lacking in remorse and failing to address their offending behaviour.

Prisoners who pursue their innocence through post-conviction litigation also face an uphill climb. This is attributable in part to cognitive biases that affect how prosecutors treat innocence claims in the aftermath of conviction and all too often lead them to discount their potential legitimacy. Considering the hazards that inmates encounter in maintaining their innocence in parole and post-conviction litigation settings, there is reason to think that many of them are not in denial, but rather the victims of profound miscarriages of justice. This Book Chapter will explore this conundrum in these two settings before concluding with some thoughts on reform.

September 21, 2014 at 12:28 PM | Permalink


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Prosecutors would change their attitudes if their immunity were withdrawn, and they had to pay victims of false conviction from personal assets or liability insurance.

Each false conviction should be investigated as a catastrophe, like an airplane crash. Then list the multiple factors that clustered, and revise the entire system to prevent them.

Posted by: Supremacy Claus | Sep 21, 2014 1:20:04 PM

Rule 2 allows suspension of the rules of appellate procedure. Rule 21 allows for a writ of mandamus against a judge.

Appeals should become more substantive, and have judges hire seasoned investigators review the facts of the case. These investigators should have subpoena power to root out police and prosecutorial error and misconduct.

Why are defense lawyrs not using htese, I do not know. I assume they just want to run up the bill on procedural grounds.

Posted by: Supremacy Claus | Sep 22, 2014 1:10:07 AM

It's not a cognitive bias on the part of the prosecution that makes late claims of actual innocence difficult, it is a change in the status of the case.

Attorneys are trained to focus on the trial/the plea as the "main show." Before trial, the presumption is that the defendant is innocent, and the good prosecutor closely scrutinizes his evidence before going to trial to be as sure as possible that she is not attempting to convict an innocent.

To avoid unending retrials, after the jury has found the defendant guilty, the presumption shifts and a defendant is presumed to be guilty. Furthermore, the system assumes that the trial was fair and accurate. At this point, the burden is put on the defendant to show a good reason why the presumption of an accurate trial should be set aside. A good prosecutor and a good judge are supposed to be skeptical of new information allegedly showing that the person is innocent and put the former defendant to his burden of proof in the same way that the defense attorney and the judge put the prosecutor to her burden of proof at the initial trial.

Posted by: tmm | Sep 22, 2014 5:38:48 PM

In civil code nations, appellate courts review substance, and not just legal errors. That is the standard of due care of appellate practice in most nations. Why remain such outliers. Is our system superior? obviously, there is an exoneration for every 5 executions a year. That is very disturbing. It does not mean that 20% of people on death row are innocent, just that the innocent are being found so quickly when examined again.

Beyond a reasonable doubt standard means around 80% certainty. And that disturbingly coincides with the innocence ratio, 20%.

Perhaps the death penalty cases should have a "beyond any doubt" standard or 99.9% standard. No abolitionist has phrased that innocence argument in such quantitative terms. I have no idea why, since it is self evident, and current technology allows such levels of certainty.

One other obvious change to the Rules of Evidence? No eyewitness testimony without physical corroboration. Most of the innocence errors are attributable to hysterical female false eyewitnesses. If there is a racial bias in the death penalty jurisprudence, it is to lend white women credibility over black males, especially in the South.

Posted by: Supremacy Claus | Sep 22, 2014 7:00:22 PM

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