CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

A Member of the Law Professor Blogs Network

Thursday, October 13, 2011

Smith on Constitutional Innocence Protection in Pre-trial, Trial, and Post-Conviction Procedures

Robert J. Smith (DePaul University College of Law) has posted Recalibrating Constitutional Innocence Protection (Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

The remainder of the article is divided into three parts. Part One explores innocence protection as an animating value of constitutional criminal procedure (Section A) and describes how developments in the way that crimes are investigated, proved and re-examined have dislodged the trial from its place at the center of the constitutional criminal procedure universe (Section B). Part Two explores how re-aligning the importance of innocence-protection with the practical realities of our criminal justice system would impact the regulation of post-conviction procedures. It also is divided into two sections. Section A provides an overview of how the Court has treated innocence claims to date. It considers gateway innocence claims (those in which the prisoner asserts that new evidence of his factual innocence should permit substantive review of an otherwise defaulted claim that he received a constitutionally deficient trial) and freestanding innocence claims (in which a prisoner asserts that new evidence of his factual innocence warrants relief despite the fact that the conviction stemmed from a constitutionally sound trial). Section B articulates a three-tiered framework (conviction relief, execution relief, gateway innocence) for adjudicating such claims. Part III offers concluding thoughts, including a preliminary consideration of the ramifications the decline of the trial as the center of gravity for innocence protection has on the regulation of pretrial procedures. 

http://lawprofessors.typepad.com/crimprof_blog/2011/10/xxx-smith-on-constitutional-innocence-protection-in-pre-trial-trial-and-post-conviction-procedures.html

| Permalink

Comments

Post a comment