Waiving Innocence

61 Pages Posted: 23 Feb 2011 Last revised: 17 Nov 2011

See all articles by Samuel R. Wiseman

Samuel R. Wiseman

Florida State University College of Law

Date Written: February 21, 2011


The exceptional accuracy of DNA, and the exonerations it has produced, have led to a reconsideration of cherished, but empirically untested, notions of the reliability of the criminal justice system. They have also, albeit incompletely, provoked a renewed commitment — reflected in new ethical rules, compensation schemes, and the testing statutes themselves — to protecting the innocent. But there is a danger that, as has happened with other advances in the protections afforded to the accused, the scope of DNA testing rights and the spirit embodied in them will erode as DNA testing loses its novelty. There is evidence that this has already begun. DNA waivers — through which a defendant gives up the right to the testing, and possibly preservation, of DNA evidence — have been widely sought by the federal government. The history of similar innovations in plea bargaining suggests that these waivers may spread to the states. This Article identifies this practice for the first time in the legal literature and explores their validity, their consequences, and the justifications behind their use. It argues that although courts are likely to enforce these waivers in most circumstances, they are deeply problematic, not least because of their damaging effect on the public’s confidence in the criminal justice system.

Keywords: DNA, DNA testing, preservation, waiver, waive, DNA waiver, plea bargain, innocence, waiving innocence, innocence movement, criminal, defendant, prosecutor, Brady, Ruiz, Osborne, Mezzanatto, Holder, Department of Justice

Suggested Citation

Wiseman, Samuel R., Waiving Innocence (February 21, 2011). Minnesota Law Review, Vol. 96, 2012, University of Tulsa Legal Studies Research Paper 2011-10, Available at SSRN: https://ssrn.com/abstract=1766059

Samuel R. Wiseman (Contact Author)

Florida State University College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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