Volume 58
Issue 1
Winter '21

The Innocence Checklist

Written By: Carrie Leonetti

Abstract

Because true innocence is unknowable, scholars who study wrongful convictions and advocates who seek to vindicate the innocent must use proxies for innocence. Court processes or official recognition of innocence are the primary proxy for innocence in research databases of exonerees. This Article offers an innovative alternative to this process-based proxy: a substantive checklist of factors that indicates a likely wrongful conviction, derived from empirical and jurisprudential sources. Notably, this checklist does not rely on official recognition of innocence for its objectivity or validity. Instead the checklist aggregates myriad indicators of innocence: factors known to contribute to wrongful convictions; rules of professional conduct; innocence-project intake criteria; prosecutorial conviction-integrity standards; and jurisprudence governing when convictions must be overturned because of fresh evidence or constitutional violations. A checklist based on articulated, uniformly applicable criteria is preferable to the more subjective and less regulated decisionmaking of judges and prosecutors who determine innocence using an official exoneration methodology. Only a conception of innocence independent of official exoneration can provide the necessary support for reform of barriers to more fruitful postconviction review mechanisms. 

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