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Univ. of San Diego School of Law

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Monday, August 5, 2013

Mosteller on Potential Innocence and the Right to Counsel

MostellerrobertpRobert P. Mosteller (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted 'Potential Innocence': Making the Most of a Bleak Environment for Public Support of Indigent Defense (Washington and Lee Law Review, Vol. 70, No. 2, 2013) on SSRN. Here is the abstract:

Robust Sixth Amendment protections for defendants navigating the criminal justice system are worthy justifications for supporting indigent defense. But I am becoming convinced they will not prevail with the public in the current economic and political environment. Innocence protection is the only available option to develop public support, but I believe the innocence movement’s standard of almost absolute proof makes using innocence as a motivating factor very difficult for all but a small subset of defendants who can demonstrate innocence or can connect with the public on a personal level. These are not the bases for broad support for indigent defense. Unfortunately, the innocence argument that can prevail is likely not figuratively a tide powerful enough to lift all boats.



My sense of hope and reality collide. Some levels of hope must realistically be abandoned. Those who support Gideon are likely unable to convince the public of the value of broad support for indigent defense in that the values it protects are either not considered worthy at all or are considered insufficiently important when weighed against other unmet public needs. Actual innocence is likely the only realistically available argument to further Gideon, but its power is only sufficient to carry the day for a limited group of cases. 

Innocence concerns, however, provide a modicum of leverage for due process arguments in general and for support for a substantial right to counsel in particular. The arguments for innocence among the “potentially innocent” who are only able to show degrees of doubt regarding their guilt are likely inadequate in their own right. Nevertheless, they are important to prevent isolation of the effective innocence argument to the narrow group of those defendants demonstrated to be actually innocent, which could even further disadvantage all others charged with crime.

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