Innocentrism

University of Illinois Law Review

Volumn 2008, Issue 5, 2008, Pages 1549-1572

  Medwed, Daniel S ^a  

^a UNIVERSITY OF UTAH   (United States)

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EID: 55349133835     PISSN: 02769948     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (143)

1. For a current list of the number of inmates exonerated through post-conviction DNA testing, see Innocence Project, http://www.innocenceproject. org/ (last visited May 14, 2008);
2. see also Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55 (2008) (analyzing the issues involved in the first 200 DNA exonerations).
3. Innocence projects are typically structured as either freestanding nonprofit legal organizations or clinics associated with law or journalism schools. For a discussion of the policies and practices of innocence projects regarding case selection, see Daniel S. Medwed, Actual Innocents: Considerations in Selecting Cases for a New Innocence Project, 81 NEB. L. REV. 1097 (2003).
4. E-mail from Rebecca Brown, Policy Analyst, Innocence Project, to author (Oct. 9, 2007, 04:08:00 EST) (on file with author) (indicating that only eight states currently lack post-conviction DNA testing statutes: Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota, and Wyoming). For a listing of states lacking post-conviction DNA testing statutes as of June 2005, see American Society of Law, Medicine & Ethics, Post-Conviction Grid, http://www.aslme.org/dna_04/grid/Post-Conviction. html (last visited May 14, 2008).
5. See, e.g., Andrew E. Taslitz, Eyewitness Identification, Democratic Deliberation, and the Politics of Science, 4 CARDOZO PUB. L. POL'Y & ETHICS J. 271, 316 (2006) (discussing modern trends regarding eyewitness identification procedures);
6. Abby Goodnough & Terry Aguayo, 25 Years Later, DNA Testing Comes to a Prisoner's Defense, N.Y. TIMES, Aug. 3, 2005, at A12 (noting that New Jersey and North Carolina have implemented sequential lineup identification procedures).
7. Specifically, the American Criminal Law Review (Georgetown); Boston College Third World Law Journal; California Western Law Review; Cardozo Public Law, Policy and Ethics Journal; Drake Law Review; Golden Gate University Law Review; Journal of Criminal Law and Criminology (Northwestern); Oklahoma City University Law Review; Tulsa Law Review; UMKC Law Review; Utah Law Review; and Wisconsin Law Review have all published, or are in the process of publishing, symposia on the topic of wrongful convictions since 2002. See, e.g., Shawn Armbrust, Reevaluating Recanting Witnesses: Why the Red-Headed Stepchild of New Evidence Deserves Another Look, 28 B.C. THIRD WORLD L.J. 75 (2008);
8. Hugo Adam Bedau & Michael L. Radelet, Convicting the Innocent in Capital Cases: Criteria, Evidence, and Inference, 52 DRAKE L. REV. 587 (2004);
9. Lyn Entzeroth, Symposium Foreword, 42 TULSA L. REV. 205 (2006);
10. Bennett L. Gershman, Misuse of Scientific Evidence by Prosecutors, 28 OKLA. CITY U. L. REV. 17 (2003);
11. Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523 (2005);
12. Daniel S. Medwed, Beyond Biology: Wrongful Convictions in the Post-DNA World, 2008 UTAH L. REV. (forthcoming), available at http://ssrn.com/abstract=1127854;
13. Daniel S. Medwed, Innocence Lost . . . and Found: An Introduction to the Faces of Wrongful Conviction Symposium Issue, 37 GOLDEN GATE U. L. REV. 1 (2006);
14. Daniel S. Medwed, Looking Foreword: Wrongful Convictions and Systemic Reform, 42 AM. CRIM. L. REV. 1117 (2005);
15. Richard A. Rosen, Reflections on Innocence, 2006 WIS. L. REV. 237;
16. Barry C. Scheck, Introductory Remarks, 4 CARDOZO PUB. L. POL'Y & ETHICS J. 233 (2006);
17. Jan Stiglitz et al., The Hurricane Meets the Paper Chase: Innocence Projects Now Emerging Role in Clinical Legal Education, 38 CAL. W. L. REV. 413 (2002);
18. Ellen Yankiver Suni, Introduction to the Symposium on Wrongful Convictions: Issues of Science, Evidence, and Innocence, 70 UMKC L. REV. 797 (2002).
19. See, e.g., Press Release, Innocence Project, As 100th Innocent Prisoner Is Freed by DNA Tests, Innocence Network Convenes to Map the Future of "New Civil Rights Movement" in Criminal Justice (Jan. 17, 2002), http://www.deathpenaltyinfo.org/article.php?did=280&scid=1;
20. see also Mark A. Godsey & Thomas Pulley. The Innocence Revolution and Our "Evolving Standards of Decency" in Death Penalty Jurisprudence, 29 U. DAYTON L. REV. 265, 267 (2004) ("The lessons of the Innocence Revolution begin with the realization that our system is not as accurate as we believed even 10 years ago.");
21. Lawrence C. Marshall, The Innocence Revolution and the Death Penalty, 1 OHIO ST. J. CRIM. L. 573, 573 (2004) ("Spawned by the advent of forensic DNA testing and hundreds of post-conviction exonerations, the innocence revolution is changing assumptions about some central issues of criminal law and procedure.").
22. See JESSICA BLANK & ERIK JENSEN, THE EXONERATED (2004);
23. see also Joshua Marquis, The Myth of Innocence, 95 J. CRIM. L. & CRIMINOLOGY 501, 510-16 (2005) (discussing and criticizing the play The Exonerated).
24. For information about this program, see Internet Movie Database, In Justice, http://www.imdb.com/title/tt0460650/ (last visited May 14, 2008).
25. JOHN GRISHAM, THE INNOCENT MAN (2006);
26. SCOTT TUROW, REVERSIBLE ERRORS (2002).
27. Throughout the 1960s and 1970s, American criminal law experienced a remarkable and well-chronicled expansion of the protections afforded to criminal defendants. Landmark United States Supreme Court cases established, among other things, the right to counsel for indigent criminal defendants and, in general, reinforced and reinvigorated the individual rights provided in the Fourth, Fifth, and Sixth Amendments to the Constitution. This so-called Rights Revolution of the Warren Court dramatically changed the face of criminal law and has been the subject of much debate in scholarly circles ever since. For recent discussions of the Warren Court era as revolutionary, see, for example, Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737 (2007);
28. Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489 (2006).
29. For an argument suggesting that the Warren Court's strengthening of criminal procedure has imposed costs and created untoward incentives for the government, see William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505 (2001).
30. See, e.g., Daniel S. Medwed, Anatomy of a Wrongful Conviction: Theoretical Implications and Practical Solutions, 51 VILL. L. REV. 337 (2006).
31. For an interesting argument advocating the revival of the presumption of factual innocence in the criminal justice system, see William S. Laufer, The Rhetoric of Innocence, 70 WASH. L. REV. 329 (1995).
32. Morris B. Hoffman, The 'Innocence' Myth, WALL ST. J., Apr. 26, 2007, at A19. Political scientist John McAdams has also criticized the innocence movement's tabulations and done so in quite vitriolic fashion: Thus there has been a massive propaganda campaign in recent years touting the number of people who have been on death row but have been "exonerated" and set free. Unfortunately, death penalty opponents have radically and systematically exaggerated the number of people who fit into this category. They have done this by carefully obfuscating the distinction between someone who is factually innocent ("he didn't do it"), and someone who is legally innocent (has not been found guilty beyond a reasonable doubt in a process that passes all current standards of due process).
33. John McAdams, It's Good, and We're Going to Keep It: A Response to Ronald Tabak, 33 CONN. L. REV. 819, 827 (2001).
34. See, e.g., Paul G. Cassell, The Guilty and the "Innocent": An Examination of Alleged Causes of Wrongful Conviction from False Confessions, 22 HARV. J.L. & PUB. POL'Y 523 (1999); Marquis, supra note 7.
35. See, e.g., Joshua Marquis, Op-Ed, The Innocent and the Shammed, N.Y. TIMES, Jan. 26, 2006, at A23 (Oregon prosecutor dismissing the overall number of wrongful convictions as insignificant);
36. see also Tony G. Poveda, Estimating Wrongful Convictions, 18 JUST. Q. 689, 697 (2001) (suggesting 1.4 percent wrongful conviction rate in murder cases).
37. Kansas v. Marsh, 126 S. Ct. 2516, 2538 (2006). Professor Samuel Gross has responded by criticizing Justice Scalia's computation: "In fact, the true number of wrongful convictions is unknown and frustratingly unknowable. But the rate that Justice Scalia advocates is flat wrong and badly misleading." Samuel R. Gross, Souter Passant, Scalia Rampant: Combat in the Marsh, 105 MICH. L. REV. FIRST IMPRESSIONS 67, 69 (2006), available at http://students.law.umich.edu/mlr/firstimpressions/ vol105/gross.pdf.
38. Notably, Michael Risinger has recently written a paper that found "an empirical minimum of 3.3% and a fairly generous likely maximum of 5% for factually wrongful convictions in capital rape-murders in the 1980's." D. Michael Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. CRIM. L. & CRIMINOLOGY 761, 780 (2007);
39. see also David R. Dow, Op-Ed, The End of Innocence, N.Y. TIMES, June 16, 2006, at A31 ("Of the 50 or so death row inmates I have represented, I have serious doubts about the guilt of three or four - that is, 6 to 8 percent, about what scholars estimate to be the percentage of innocent people on death row.").
40. For an interesting article discussing officials' estimates of wrongful conviction rates, see Marvin Zalman et al., Officials' Estimates of the Incidence of "Actual Innocence" Convictions, 25 JUST. Q. 72 (2008). The study found that defense lawyers estimate overall higher rates of wrongful convictions than do judges, who, in turn, predict a higher rate than the police and prosecutors. Id. at 72.
41. See supra notes 13-15 and accompanying text.
42. See also Erik Lillquist, Improving Accuracy in Criminal Cases, 41 U. RICH. L. REV. 897, 897 (2007) ("Unlike some commentators and jurists, I assume erroneous convictions must exist, and the number of such cases is not insignificant. The criminal justice system is a human enterprise - one in which we ask a group of twelve people to make a decision about the guilt or innocence of a particular individual. Like any other human epistemic practice, this process inevitably leads to mistakes - both erroneous convictions and erroneous acquittals.") (citations omitted). See generally Marquis, supra note 7.
43. See Marquis, supra note 7, at 520.
44. See generally Cassell, supra note 13; Marquis, supra note 7.
45. See Ronald J. Allen & Amy Shavell, Further Reflections on the Guillotine, 95 J. CRIM. L. & CRIMINOLOGY 625 (2005). Allen and Shavell argue, among other things, that the deterrent effect of the death penalty on potential murderers signifies that more innocents may be saved by the death penalty (crime victims) than by abolishing capital punishment and sparing some number of innocent inmates from death row.
46. Cf. Katherine J. Strandburg, Deterrence and the Conviction of the Innocent, 35 CONN. L. REV. 1321 (2003) (contending that the prospect of wrongful convictions undermines the effect of deterrence).
47. See Allen & Shavell, supra note 21, at 628 ("Every year for a half a century, between 25,000 and 40,000 people have died in vehicular accidents, many of whom are innocent in every sense of the word. The number of deaths is clearly quite sensitive to current regulation; faster speed limits mean more deaths, safety devices on cars affect the outcome of crashes, and so on.") (emphasis omitted).
48. Allen and Shavell liken the inevitabihty of error in the criminal justice system to any number of regulatory decisions made by the government determined on a cost-benefit basis, for instance, highway safety, in which a number of casualties are certain to ensue. Id.
49. See, e.g., Paul G. Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387, 438 (1996) (arguing that the Miranda rule, due to the confession rate decrease, results in lost convictions equal to 3.8 percent of all criminal suspects questioned in America each year).
50. See generally Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions - and from Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497 (1998).
51. See, e.g., Gary Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 LAW & HUM. BEHAVIOR 603, 616-17 (1998). The results of a recent pilot study in Illinois, which sought to compare the relative benefits of sequential versus traditional lineups, indicated that sequential lineups might not be as desirable as many social scientists have argued.
52. See Kate Zernike, Questions Raised over New Trend in Police Lineups, N.Y. TIMES, Apr. 19, 2006, at A1 ("The study, the first to do a real-life comparison of the old [simultaneous] and new [sequential] methods, found that the new lineups made the witnesses less likely to choose anyone. When they did pick a suspect, they were more likely to choose an innocent person."). The efficacy of this study, however, has been subject to debate. See id.
53. Wells et al., supra note 25, at 616-17.
54. See, e.g., Seth M. Lieberman, Sequential Lineups: A Closer Look Gives Reason to Pause, N.Y. L.J., Dec. 3, 2003, at 4.
55. See infra notes 29-34 and accompanying text.
56. Margaret Raymond, The Problem with Innocence, 49 CLEV. ST. L. REV. 449, 457 (2001).
57. Id.
58. Carol S. Steiker & Jordan M. Steiker, The Seduction of Innocence: The Attraction and Limitations of the Focus on Innocence in Capital Punishment Law and Advocacy, 95 J. CRIM. L. & CRIMINOLOGY 587, 609-15 (2005).
59. See id. Scholars have also criticized federal habeas corpus jurisprudence on the grounds that it fails to adequately address claims of actual innocence. See, e.g., Todd E. Pettys, Killing Roger Coleman: Habeas. Finality, and the Innocence Gap, 48 WM. & MARY L. REV. 2313, 2313-14 (2007) (contending that the Supreme Court's "habeas jurisprudence suffers from an 'innocence gap' - a gap between the amount of exculpatory evidence sufficient to thwart finality and the amount of exculpatory evidence sufficient to persuade a federal court to forgive a prisoner's procedural mistakes and adjudicate the merits of his or her constitutional claims").
60. See, e.g., Steiker & Steiker, supra note 31, at 623 ("At a much higher level of abstraction, we worry that the tone and rhetoric of a focus on the problem of executing the innocent in debates about the death penalty is in some tension with the deepest normative arguments against capital punishment. Those arguments depend crucially on some notion of the human dignity even of those who are entirely guilty of heinous offenses, and on some limit to what we are willing to do, as a self-governing collective, to even the worst offenders."); Dow, supra note 16, at A31 ("Innocence is a distraction. . . . [M]ost people on death row did what the state said they did. But that does not mean they should be executed.").
61. See, e.g., Linda J. Skitka & David A. Houston, When Due Process Is of No Consequence: Moral Mandates and Presumed Defendant Guilt or Innocence, 14 SOC. JUST. RES. 305, 323 (2001) (presenting results of empirical studies from psychologists that suggest people tend to disregard due process values when they believe they know the defendant to be guilty or innocent).
62. See supra note 33 and accompanying text.
63. See, e.g., Raymond, supra note 29, at 451 ("The first concern is that, far from suggesting that the system is irreparably broken, the innocence movement suggests, instead, that the system works. The fact that persons wrongfully convicted of crimes they did not commit have been able to secure relief through the system, it could be argued, belies the need for reform.").
64. See BARRY SCHECK ET AL., ACTUAL INNOCENCE: WHEN JUSTICE GOES WRONG AND HOW TO MAKE IT RIGHT 323 (2003) ("In a few years, the era of DNA exonerations will come to an end. The population of prisoners who can be helped by DNA testing is shrinking, because the technology has been used widely since the early 1990s, clearing thousands of innocent suspects before trial."); Steiker & Steiker, supra note 31, at 622 ("As DNA testing becomes more of an established part of the pre-trial process, however, there will (thankfully) be fewer and fewer post-trial exonerations. This inevitable and salutary development, however, may well lead the public to think that the problem of innocent people on death row is 'fixed,' as there will no longer be any indisputable means of post hoc proof of the system's fallibility."). Reports from the Bureau of Justice Statistics at the U.S. Department of Justice confirm that pretrial DNA testing is becoming increasingly popular.
65. See, e.g., CAROL J. DEFRANCES, U.S. DEP'T OF JUSTICE, PROSECUTORS IN STATE COURTS, 2001, at 8 (2002), http://www.ojp.usdoj.gov/bjs/pub/pdf/psc01. pdf (finding that, in 2001, two-thirds of prosecutors' offices reported use of DNA evidence during plea negotiations or felony trials compared to half of all offices in 1996);
66. GREG W. STEADMAN, U.S. DEP'T OF JUSTICE, SURVEY OF DNA CRIME LABORATORIES, 2001, at 2 (2002), http://www.ojp.usdoj.gov/bjs/pub/pdf/sdnacl01.pdf (reporting that, between 1997 and 2000, the work of DNA crime laboratories soared, with a 50 percent increase in the number of subject cases and convicted offender samples received).
67. Innocence projects often require factual innocence as a basis for continued representation. See Medwed, supra note 2, at 1126. This could give rise to some ethical issues given the negative signal sent to the public in the event a project ceases representation of a specific inmate. See Ellen Yankiver Suni, Ethical Issues for Innocence Projects: An Initial Primer, 70 UMKC L. REV. 921, 962 (2002) (concluding that "there is likely nothing unreasonable about projects limiting the kinds of cases they will take or continue to pursue. . . . as long as the potential consequences are clearly understood" by the client).
68. See, e.g., Tom Kertscher, Avery Gets Life, No Release Chance - Court Hears Victim Talk of Dying on DVD, MILWAUKEE J. SENTINEL, June 2, 2007, at B1 ("Steven Avery, the only person in U.S. history to be convicted of murder after being cleared of an earlier conviction by DNA testing, was sentenced to life in prison Friday with no possibihty of release for the killing of Teresa Halbach.").
69. Id. ("DNA evidence - which had freed Avery from prison in the 1985 sexual assault - was key in convicting him of Halbach's killing. His blood and hers were found in Halbach's car, and Halbach's DNA was found on a bullet fragment in Avery's garage.").
70. See Gross, supra note 15, at 69.
71. See Barry Scheck & Peter Neufeld, DNA and Innocence Scholarship, in WRONGLY CONVICTED: PERSPECTIVES ON FAILED JUSTICE 241, 245 (Saundra D. Westervelt & John A. Humphrey eds., 2001) ("In 75 percent of Innocence Project cases, matters in which it has been established that a favorable DNA result would be sufficient to vacate the inmate's conviction, the relevant biological evidence has either been destroyed or lost.").
72. See generally Daniel S. Medwed, California Dreaming? The Golden State's Restless Approach to Newly Discovered Evidence of Innocence, 40 U.C. DAVIS L. REV. 1437 (2007);
73. Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 ARIZ. L. REV. 655 (2005) [hereinafter Medwed, Up the River].
74. See, e.g., Gross et al., supra note 5, at 531 ("In short, the clearest and most important lesson from the recent spike in rape exonerations is that the false convictions that come to light are the tip of an iceberg. Beneath the surface there are other undetected miscarriages of justice in rape cases without testable DNA, and a much larger group of undetected false convictions in robberies and other serious crimes of violence for which DNA identification is useless.").
75. Notably, in their groundbreaking empirical study of wrongful convictions, Samuel Gross and his team of researchers defined the term " exoneration" as "an official act declaring a defendant not guilty of a crime for which he or she had previously been convicted." Id. at 524. These official acts divided into four categories: (1) executive pardons, (2) judicial dismissals of charges after new evidence of innocence, (3) acquittals at retrials where the evidence revealed that the defendants played "no role in the crimes for which they were originally convicted," and (4) posthumous acknowledgment by the state of the innocence of an inmate who died in prison. Id.; see also Zalman et al., supra note 16, at 75-76 (discussing the various issues involved in defining wrongful convictions, including whether to adopt an objective or subjective classification process).
76. See Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U. L. REV. 125, 127-28 (2004) (discussing how the likelihood of success on a post-conviction motion alleging actual innocence rises considerably if the prosecution joins in or fails to contest the motion). By way of example, David Wong was wrongfully convicted of murder in New York State and ultimately obtained his release only after the local district attorney reluctantly decided not to retry him on murder charges after the intermediate state court ordered a new trial in the case. See Medwed, supra note 11, at 355-56.
77. See McAdams, supra note 12, at 827.
78. See, e.g., Charles I. Lugosi, Punishing the Factually Innocent: DNA, Habeas Corpus and Justice, 12 GEO. MASON U. CIV. RTS. L.J. 233, 235 (2002) ("[E]ven after DNA testing has proven the innocence of a prisoner, prosecutors refuse to accept the results and rely upon other evidence that supports guilt, or they create a new theory of how the crime occurred (never before put to the judge and jury) to justify the continued punishment of an innocent person."); see also Gross et al., supra note 5, at 525-26 (describing the case of Charles Fain, who was exonerated of a rape-murder in Idaho by DNA testing in 2001, and noting the original prosecutor's response to the scientific proof of innocence: "It doesn't really change my opinion that much that Fain's guilty.").
79. See, e.g., James S. Liebman, The New Death Penalty Debate: What's DNA Got to Do with It?. 33 COLUM. HUM. RTS. L. REV. 527, 543 (2002) (arguing that "prosecutors have become more sophisticated about hypothesizing the existence of 'unindicted co-ejaculators' (to borrow Peter Neufeld's phrase) to explain how the defendant can still be guilty, though another man's semen is found on the rape-murder victim").
80. I have also discussed the Goodman case in the context of the pressures that innocent prisoners face when encountering state parole boards. See Daniel S. Medwed, The Innocent Prisoner's Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings, 93 IOWA L. REV. 491, 523-28 (2008).
81. See State v. Goodman, 763 P.2d 786, 786 (Utah 1988).
82. Id.
83. Id.
84. Id. at 791.
85. See Rob Warden, The Revolutionary Role of Journalism in Identifying and Rectifying Wrongful Convictions, 70 UMKC L. REV. 803, 829 (2002) ("Gary Dotson made history on August 14, 1989, when he became the first American to be exonerated of a criminal offense by DNA."); see also SCHECK ET AL., supra note 37, at 45-52 (discussing the efforts to apply the nascent DNA technology to criminal cases in the 1980s).
86. Goodman, 763 P.2d at 787-88.
87. Id.
88. See DNA Tests Set Man Free After 19 Years, L.A. TIMES, Nov. 10, 2004, at A12 [hereinafter DNA Tests Set Man Free].
89. Mesquite is near Interstate 15 between Las Vegas and the Utah border. Goodman, 763 P.2d at 788.
90. Id.
91. Id. at 786; see also DNA Tests Set Man Free, supra note 58.
92. Goodman, 763 P.2d at 788-89.
93. See Innocence Project, Other Innocence Organizations, http://www.innocenceproject.org/Content/313.php (last visited May 14, 2008) (noting that RMIC handles cases in Nevada, Utah, and Wyoming).
94. See Angie Welling & Jennifer Dobner, DNA-Test Technology Improving, DESERET MORNING NEWS (Salt Lake City), Jan. 30, 2005, at B1 (noting that RMIC "filed a petition on his behalf asking that newly discovered evidence . . . be retested with recent technology. The 20-year-old evidence was examined through a process called Y-STR DNA testing, which ignores the existence of female DNA in samples and focuses only on the Y chromosomes present.").
95. Id.
96. Id.
97. See Ashley Broughton, State: DNA Should Free Inmate, SALT LAKE TRIB., Oct. 15, 2004, at D1 ('"The new DNA evidence is not conclusive, but it is troubling,' said [Utah] Assistant Attorney General Erin Riley. 'It does not prove Goodman innocent . . . .' State prosecutors said additional evidence, although circumstantial, pointed to Goodman as Williams' killer.").
98. See UTAH CODE ANN. § 78-35a-301 (2002) (amended 2007); § 78-35a-303(2)(b) (2002) ("If the court, after considering all the evidence, determines that the DNA test result demonstrates by clear and convincing evidence that the person is actually innocent of one or more offenses of which the person was convicted and all lesser included offenses relating to those offenses, the court shall order that those convictions be vacated with prejudice and those convictions be expunged from the person's record."); see also Ted S. Reed, Note, Freeing the Innocent: A Proposed Forensic Evidence Retention Statute to Optimize Utah's Post-Conviction DNA Testing Act for Claims of Actual Innocence, 2004 UTAH L. REV. 877.
99. See UTAH CODE ANN. §§ 78-35a-101 to -110 (2002) (amended 2007).
100. See also UTAH R. CIV. P. 65C(m)(1) ("If the court vacates the original conviction or sentence [pursuant to the state Post-Conviction Remedies Act], it shall enter findings of fact and conclusions of law and an appropriate order. If the petitioner is serving a sentence for a felony conviction, the order shall be stayed for 5 days. Within the stay period, the respondent shall give written notice to the court and the petitioner that the respondent will pursue a new trial, pursue a new sentence, appeal the order, or take no action").
101. One benefit of the habeas corpus remedy for RMIC was that it permitted Goodman's release within five days. UTAH CODE ANN. § 78-35a-108(2)(a) (2002) ("If the petitioner is serving a felony sentence, the order shall be stayed for five days. Within the stay period, the respondent shall give written notice to the court and the petitioner that the respondent will pursue a new trial or sentencing proceedings, appeal the order, or take no action."); § 78-35a-108(2)(b) ("If the respondent fails to provide notice or gives notice at any time during the stay period that it intends to take no action, the court shall lift the stay and deliver the order to the custodian of the petitioner.").
102. See UTAH CODE ANN. § 78-35a-301 (2002) (amended 2007).
103. See DNA Tests Set Man Free, supra note 58.
104. See Innocence Project, Bruce Dallas Goodman, http://www. innocenceproject.org/Content/157.php (last visited May 14, 2008).
105. Proving a person's innocence definitively is essentially impossible - even in DNA cases, a prosecutor could always claim (in addition to or instead of the "unindicted co-ejaculator" hypothesis) potential contamination of the evidence as a source of doubt regarding innocence. See supra note 49 and accompanying text. Indeed, as Hugo Adam Bedau and Michael Radelet acknowledge, "absolute, definitive innocence is all but impossible to prove. Even in cases with DNA exoneration, one can argue that the lack of a DNA match could be explained by the mishandling of the evidence, for example, rather than the prisoner's innocence." See Michael L. Radelet & Hugo Adam Bedau, Erroneous Convictions and the Death Penalty, in WRONGLY CONVICTED: PERSPECTIVES ON FAILED JUSTICE 269, 272 (Saundra D. Westervelt & John A. Humphrey eds., 2001).
106. Id. ("Like guilt, where the standard for conviction is 'beyond a reasonable doubt,' not '100 percent certainty,' the determination of innocence is a question of where to draw the line on a continuum of probabilities of innocence.").
107. See supra note 18 and accompanying text; see also Erik Luna, System Failure, 42 AM. CRIM. L. REV. 1201, 1207 (2005).
108. This phrase is frequently attributed to either William Blackstone or Matthew Hale. See, e.g., Harold J. Berman & Charles J. Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 EMORY L.J. 437, 482 (1996).
109. Steiker & Steiker, supra note 31, at 588 (noting how the infliction of capital punishment on the innocent undermines the legitimacy of the criminal justice system).
110. See, e.g., id. (criticizing Allen and Shavell's comparison of wrongful convictions in the death penalty context and government bridge-building). In my view, the experiences of people harmed through the regulatory process differ substantially from those of the wrongfully convicted. As opposed to those who suffer in the regulatory context, outcomes for defendants in criminal cases, even just charging decisions, may stigmatize the accused for years to come and produce longstanding emotional and psychic effects on the individuals involved. See, e.g., id. (noting that "unlike the innocent victims of governmental bridge-building, those who are innocent and sentenced to death suffer the additional devastation of being blamed for a terrible crime; their names, families, and entire lives are forever tainted by this ignominy, quite apart from the death of their bodies").
111. See, e.g., James S. Liebman, The Overproduction of Death, 100 COLUM. L. REV. 2030, 2132 (2000) ('"[W]rongful convictions, and retrials and appeals . . . cost taxpayers millions of dollars [and] . . . foster[ ] a corrosive distrust in [the judiciary.]'")
112. (quoting Ken Armstrong & Maurice Possley, The Verdict: Dishonor, CHI. TRIB., Jan. 10, 1999, at N1).
113. According to government statistics, the average cost of incarcerating a federal inmate during the 2006 fiscal year exceeded $24,000. See Annual Determination of Average Cost of Incarceration, 72 Fed. Reg. 31,343 (June 6, 2007), available at http://frwebgate.access.gpo.gov/cgi-bin/getpage. cgi?dbname=2007_register&position=all&page=31343.
114. See, e.g., GRISHAM, supra note 9 (discussing how the wrongful convictions of Ron William-son and Dennis Fritz in Oklahoma permitted the actual perpetrator of a vicious rape-murder, Glen Gore, to remain free for years).
115. Various economic studies suggest that a prisoner commits an average of greater than ten crimes per year when free, not including drug crimes. See, e.g., John J. DiIulio, Jr., Op-Ed, Prisons Are a Bargain, by Any Measure, N.Y. TIMES, Jan. 16, 1996, at A17.
116. As Barry Scheck and Peter Neufeld have noted, wrongful convictions, like airline crashes, are colossal failures that must be investigated, studied, and ideally corrected. See Barry C. Scheck & Peter J. Neufeld, Toward the Formation of "Innocence Commissions" in America, 86 JUDICATURE 98, 98-99 (2002).
117. See generally Lillquist, supra note 18.
118. See generally Paul C. Gianelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 VA. J. SOC. POL'Y & L. 439 (1997).
119. See Medwed, supra note 11, at 370-74 (discussing the inadequate funding of indigent defense counsel and some of the problems related to that inadequacy). For a more comprehensive description of the current "crisis" in indigent defense, see Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, a National Crisis, 57 HASTINGS L.J. 1031 (2006).
120. See supra notes 25-27 and accompanying text.
121. See supra note 24 and accompanying text.
122. See, e.g., Lillquist, supra note 18, at 898 ("Knowing that we will always convict the wrong person on occasion does not mean that we should cease attempting to improve the criminal justice system, and the death penalty system in particular. Despite repeated failures, scientists have not given up improving their theories, and there is no reason that those of us engaged with the criminal justice system should cease trying to improve it.").
123. See FELIX FRANKFURTER, THE CASE OF SACCO AND VANZETTI 108 (1927) ("[A]ll systems of law, however wise, are administered through men, and therefore may occasionally
124. For years, there have been anecdotes about the effect of the television program CSI and its offspring on juror expectations regarding evidence at trial. Interestingly, the first empirical study relating to the "CSI Effect" was published in 2006 and concluded that [w]hile the study did find significant expectations and demands for scientific evidence, there was little or no indication of a link between those inclinations and watching particular television shows. This article suggests that to the extent that jurors have significant expectations and demands for scientific evidence, those predispositions may have more to do with a broader "tech effect" in popular culture rather than any particular "CSI Effect." Hon. Donald Shelton et al., A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the "CSI Effect" Exist?, 9 VAND. J. ENT. & TECH. L. 331, 333 (2006).
125. See supra note 88 and accompanying text.
126. See Medwed, supra note 46, at 171-75 (discussing how prosecutors rarely face discipline for misconduct and pressing for greater "sticks" to quell misconduct).
127. See, e.g., ROBERT M. BLOOM, RATTING: THE USE AND ABUSE OF INFORMANTS IN THE AMERICAN JUSTICE SYSTEM (2002).
128. See generally Gianelli, supra note 87. Likewise, DNA testing has not proven beneficial for the factually guilty. See, e.g., Adam Liptak, Study of Wrongful Convictions Raises Questions Beyond DNA, N.Y. TIMES, July 23, 2007, at A1 (crediting Peter Neufeld with stating that in 40 percent of the cases handled by the Innocence Project in New York City, DNA testing helped both to exonerate the innocent inmate and provide evidence against the actual perpetrator).
129. See, e.g., Steven A. Drizin & Marissa J. Reich, Heeding the Lessons of History: The Need for Mandatory Recording of Police Interrogations to Accurately Assess the Reliability and Voluntariness of Confessions, 52 DRAKE L. REV. 619 (2004);
130. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in a Post-DNA World, 82 N.C. L. REV. 891 (2004).
131. Prosecutors might be reluctant to offer generous plea bargains in cases that they perceive as strong. See Randolph N. Jonakait, The Ethical Prosecutor's Misconduct, 23 CRIM. L. BULL. 550, 553 (1987) ("If the prosecutor sees weaknesses in his case, his reaction is not to dismiss the case. Instead he offers a good deal to the defendant.").
132. For an interesting paper contending that the plea bargaining regime helps innocent defendants, see Josh Bowers, Punishing the Innocent, 156 U. PA. L. REV. 1117 (2008).
133. See, e.g., Stephen B, Bright, Neither Equal nor Just: The Rationing and Denial of Legal Services to the Poor When Life and Liberty Are at Stake, 1997 ANN. SURV. AM. L. 783, 785-86.
134. See, e.g., Michael S. Green, The Privilege's Last Stand: The Privilege Against Self-incrimination and the Right to Rebel Against the State, 65 BROOK. L. REV. 627, 630 (1999) (mentioning an array of purported justifications for the Fifth Amendment's privilege against self-incrimination). In particular, Green cites the following comment by U.S. Supreme Court Justice Goldberg: [The Fifth Amendment's privilege] reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusations, perjury, or contempt; our preference for an accusatorial rather than inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance by requiring government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load"; our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life"; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes "a shelter to the guilty," is often "a protection to the innocent." Id. at 630 (citing Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964)).
135. The fairness, of course, sought to be achieved by the enforcement of constitutional and procedural rights also encompasses the protection of the innocent. See id.
136. See supra note 37 and accompanying text.
137. See Protecting the Innocent: Proposals to Reform the Death Penalty: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 221 (2002) ("The vast majority (probably 80%) of felony cases do not involve biological evidence that can be subjected to DNA testing.") (statement of Barry Scheck); see also Liptak, supra note 97 (quoting Peter Neufeld as saying that "DNA testing is available in fewer than 10 percent of violent crimes");
138. Nina Martin, Innocence Lost, S.F. MAG., Nov. 2004, at 78, 105 (noting that "only about 10 percent of criminal cases have any biological evidence - blood, semen, skin - to test").
139. See supra note 42 and accompanying text.
140. See Medwed, Up the River, supra note 43, at 657.
141. See supra notes 36-37 and accompanying text.
142. See supra note 43 and accompanying text.
143. Id.