Unsafe Verdicts: The Need for Reformed Standards for the Trial and Review of Factual Innocence Claims

47 Pages Posted: 29 Oct 2004 Last revised: 25 Aug 2008


DNA analysis has resulted in a troubling number of exonerations in both capital and non-capital cases. While these cases show that significant numbers of factually innocent persons are convicted of crimes that they did not commit, most such convictions remain hidden because they occur in cases where DNA analysis has no application. This article seeks to show the coordinate failure of the two main current visions of the trial. On one hand, the standard model of the trial has obscured the proper normative warrant of the jury, while at the same time inappropriately insulating jury verdicts of guilt from review because of excessive deference to jury evaluation of live testimony. On the other hand, the model of the trial put forth by adversary enthusiasts celebrates the jury's normative warrants, but obscures the shortcomings of current adversary processes when such a normative warrant is inapplicable, that is, in criminal cases where the practical issue is the actual innocence in fact of the defendant. Either account of the trial allows judges, especially appellate judges, to avoid responsibility for conviction of the factually innocent. This article asserts that claims of actual innocence in fact (strictly defined) possess a moral purchase far superior to other moral claims that animate the legal process. It proposes reforms intended to recognize the special moral position of innocence-in-fact claims and to make real the legal system's commitment to truly responsive standards of reasonable doubt in regard to such claims. Specifically, the article proposes special trial rules for such claims aimed at curbing adversary excess, and review of convictions in such cases by a new standard of review borrowed in part from British jurisprudence, the "unsafe verdict" standard.

Suggested Citation

Risinger, D. Michael, Unsafe Verdicts: The Need for Reformed Standards for the Trial and Review of Factual Innocence Claims. Houston Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=610665

D. Michael Risinger (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
(973) 642-8834 (Phone)

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