Recalibrating Constitutional Innocence Protection

66 Pages Posted: 20 Sep 2011 Last revised: 24 Apr 2012

Robert J. Smith

University of North Carolina School of Law

Date Written: September 3, 2011


This Article examines the constitutional nature of the right of a prisoner to receive post-conviction relief based solely on the claim that he or she is innocent. Part I explores innocence protection as an animating value of constitutional criminal procedure (Part I.A) and describes how developments in the way that crimes are investigated, proved, and reexamined have dislodged the trial from its place at the center of the constitutional criminal procedure universe (Part I.B). Part II explores how realigning the importance of innocence protection with the practical realities of our criminal justice system would impact the regulation of post-conviction procedures. It also is divided into two sections. Part II.A provides an overview of how the U.S. Supreme Court has treated innocence claims to date. First, it considers gateway innocence claims — those in which the prisoner asserts that new evidence of his factual innocence should permit substantive review of an otherwise defaulted claim that he received a constitutionally deficient trial. It also considers freestanding innocence claims — those in which a prisoner asserts that new evidence of his factual innocence warrants relief despite the fact that the conviction stemmed from a constitutionally sound trial. Part II.B articulates a three-tiered framework — conviction relief, execution relief, gateway innocence — for adjudicating such claims.

Suggested Citation

Smith, Robert J., Recalibrating Constitutional Innocence Protection (September 3, 2011). Washington Law Review, Forthcoming. Available at SSRN:

Robert J. Smith (Contact Author)

University of North Carolina School of Law ( email )

102 Ridge Road
Chapel Hill, NC NC 27514
United States

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