Wednesday, September 21, 2011
George C. Thomas III (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Two Windows into Innocence (Ohio State Journal of Criminal Law, Vol. 7, p. 575, Spring 2010) on SSRN. Here is the abstract:
Stories about innocent defendants who serve many years in prison before they are conclusively exonerated by DNA testing are by now sadly familiar. Although the reaction of policy makers has so far been strangely muted, there are concrete steps that can be taken to reduce the risk of wrongful convictions at an acceptable cost. This essay examines two relatively modest but important changes that some states have made and recommends that they be made more broadly. According to the Cardozo Innocence Project, the single most common cause of wrongful convictions is mistaken eyewitness identifications. States like New Jersey and North Carolina have implemented fundamental changes in eyewitness procedures that include keeping records of the procedure and requiring the eyewitness to indicate the degree of certainty. The essay recommends these and other reforms that will help protect innocent defendants. The other “window into innocence” is to permit criminal defendants to discover the State’s case in much the same manner as civil litigants are permitted to discover the other party’s case. Florida has had a liberal criminal discovery policy since 1972 without evidence of undue burdens on victims or costs to administer the process. Ten other states permit criminal discovery either as a matter of right or by leave of the court. Though liberal criminal discovery does potentially burden victims, there are ways of ameliorating that burden. One can argue that all defendants have a right to discover the State’s case but that argument has particular cogency when the defendant is factually innocent of the crime charged when defendants. When defendants make a threshold showing of innocence, the paper argues, the State should pay the defense lawyer’s time to take depositions of the State’s witnesses.