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Innocence, Harmless Error, and Federal Wrongful Conviction Law

Brandon L. Garrett

University of Virginia School of Law

Wisconsin Law Review, Vol. 35, 2005

This Article examines the body of law emerging in cases brought by former criminal defendants once exonerated, often through DNA testing, which may fundamentally reshape our criminal justice system. Federal wrongful conviction actions share a novel construction - they rely on criminal procedure rights incorporated as an element in a civil rights lawsuit. During a criminal trial, remedies for violations of procedural rights are often seen as truth defeating, because they exclude evidence possibly probative of guilt. In a civil wrongful conviction action, that remedial paradigm is reversed. The exonerated defendant instead seeks to remedy government misconduct that was truth defeating and concealed evidence of innocence. This Article contends that in a civil case, the harmless error rules that limit remedies for violations of criminal procedure rights do not apply. Further, though not generally recognized as such, the Supreme Court has created internal harmless error rules to accompany each of the relevant fair trial claims: the Brady v. Maryland right to have exculpatory evidence disclosed; the right to effective assistance of counsel; the right to be free from suggestive eyewitness identification procedures; and the right not to be subject to a coerced confession. Civil claims suggest the transformative result that for each right, harmless error insulation is stripped away. This Article concludes by reflecting on how wrongful conviction suits may spearhead wide-ranging reform of our criminal justice system and renew substantive development of the constitutional right to a fair trial.

Number of Pages in PDF File: 77

Keywords: Innocence, Criminal Procedure, Constitutional Law

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Date posted: September 5, 2005  

Suggested Citation

Garrett, Brandon L., Innocence, Harmless Error, and Federal Wrongful Conviction Law. Wisconsin Law Review, Vol. 35, 2005. Available at SSRN: http://ssrn.com/abstract=794792

Contact Information

Brandon L. Garrett (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States

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