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Freeing the Guilty without Protecting the Innocent: Some Skeptical Observations on Proposed 'Innocence' Procedures


Paul G. Cassell


University of Utah - S.J. Quinney College of Law

November 26, 2012

University of Utah College of Law Research Paper No. 10

Abstract:     
Proceeding from the perspective of “innocentrism” (that is, the idea that exoneration of the “innocent” ought to be privileged over other values in the criminal justice system), I suggest eight proposals for reform: (1) researching the frequency and causes of wrongful conviction; (2) allowing waiver of rights for greater freedom to raise post-conviction innocence claims (Professor Gross’s proposal in this symposium); (3) improving the implementation of existing rules on disclosing exculpatory evidence; (4) increasing resources for defense counsel and prosecutors to focus on issues relating to actual innocence; (5) abolishing the Fourth Amendment exclusionary rule; (6) replacing the Miranda regime with a system of videotaping custodial interrogation; (7) barring prisoners from filing for habeas relief without a colorable claim of actual innocence; and (8) requiring defense attorneys to directly ask their clients if they are actually innocent. These discriminating proposals offer a far greater prospect of providing help to the innocent without blocking conviction of the guilty. A common theme underlying many of them is that they reorient the focus of the criminal justice system away from procedural issues and toward substantive issues of guilt or innocence. Sadly, Bakken’s proposals seem to offer too much procedure and not enough substance, a recipe for helping the guilty. The truly innocent will benefit in a system that values substance over procedure.

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Date posted: November 26, 2012 ; Last revised: March 26, 2013

Suggested Citation

Cassell, Paul G., Freeing the Guilty without Protecting the Innocent: Some Skeptical Observations on Proposed 'Innocence' Procedures (November 26, 2012). University of Utah College of Law Research Paper No. 10. Available at SSRN: http://ssrn.com/abstract=2181127 or http://dx.doi.org/10.2139/ssrn.2181127

Contact Information

Paul G. Cassell (Contact Author)
University of Utah - S.J. Quinney College of Law ( email )
332 S. 1400 East Front
Salt Lake City, UT 84112-0730
United States
801-585-5202 (Phone)
801-581-6897 (Fax)

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