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 THE PROBLEM WITH INNOCENCE

MARGARET RAYMOND'

Recent years have brought a torrent of public attention to the phenomenon of

wrongful conviction.2 From the New York Times3 to Good Morning America,' from
People 5 to Primetime,' we have repeatedly been moved and inspired by the vision of
an individual, fully exonerated of the heinous crime of which he was wrongfully
convicted, stepping out of the confines of unjust imprisonment and into the sunshine
of freedom. Outside waiting for the former inmate, if h e is lucky, are the family

'Professor of Law, University of Iowa College of Law. Many thanks to the Cleveland-
Marshall College of Law, Cleveland State University, for the gracious invitation to participate
in the Conference. Thanks to Mark Sidel for his comments on an early draft of this paper, and
to Charles Simmons and Michelle Hurley for their research assistance. I also wish to
acknowledge with gratitude support services provided by the Obermann Center for Advanced
Studies at the University of Iowa.
2
See, e.g., BARRY SCHECK, PETER NEUFELD, & JIM DWYER, ACTUAL INNOCENCE: FIVE
DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CONVICTED (2000);
EDWARD CONNORS ET AL., CONVICTED BY JURIES, EXONERATED BY SCIENCE: CASE STUDIES IN
THE USE OF DNA EVIDENCE TO ESTABLISH EVIDENCE AFTER TRIAL (1996) [hereinafter
CONVICTED BY JURIES] (discussing twenty-eight cases of postconviction DNA exoneration);
DNA Evidence Leads to Release of Inmate, N.Y. TIMES, Jan. 17, 2001, at A 16 (documenting
release of Christopher Ochoa, wrongfully convicted of murder, on the basis of DNA
evidence); Kay Lazar, Nation 's Bogus Convictions May Number in the Thousands, BOSTON
HERALD, May 9, 1999, at 024 (discussing two cases in Massachusetts where convicted
defendants were found to be innocent of their crimes); Julian Berger, Trial and Error,THE
GUARDIAN, Feb. 15, 2000, at 2 (documenting exoneration of eight convicts by Medill
journalism students and noting that since 1977, thirteen inmates on death row in Illinois have
been proved innocent); Carolyn Tuft, In the Past 10 Years, 8 in Illinois Were Sentenced to
Die, Later Found Innocent, ST. LOUIS POST-DISPATCH, April 12, 1998, at A7 (listing and
briefly describing the cases of eight men sentenced to death in Illinois and later found
innocent); Sydney P. Freedberg, Freed From Death Row, ST PETERSBURG TIMES, July 4, 1999,
at 8A (listing thirteen individuals freed from death row between 1975 and 1998 because they
were able to show innocence).
The perception that these numbers seem to be increasing over the last decade may be
accurate. According to the Death Penalty Information Center, an average of two persons per
year were released from death rows between 1973 and 1993 after offering evidence of their
innocence. Since 1993, that number has increased to four per year. Malcolm Garcia, Fighting
to Right Courts' Wrongs, KANSAS CITY STAR, July 31, 1999, at B3.
3
See Bob Herbert, Death Row Survivor, N.Y. TIMES, Apr. 12, 2001, at A29.
4
Good Morning America (ABC television broadcast, Feb. 25, 1997) (transcript available
on LEXIS) (discussion of the wrongful conviction of Ronald Cotton for rape based on
mistaken eyewitness identification).
5
Claudia Glenn Dowling, Mistaken Identity, PEOPLE, Aug. 14, 2000, at 50.
6
Primetime Thursday (ABC television broadcast, Apr. 12, 2001) (transcript available on
LEXIS).
 CLEVELAND STATE LA WREVIEW [Vol. 49:449

members who stayed true, the prayerful mother eager to embrace her child, and the
circle of friends and supporters who helped overturn the wrongful conviction.
There, too, is the freed man's lawyer. The media vision of the wrongfully
convicted inmate includes the lawyer as a critical player in the drama. Standing at
the gate, waiting to embrace the freed inmate, the lawyer, whose tireless efforts have
finally pressed the law to produce the just outcome, is an honored guest at the
family's celebration, and a welcome member of the joyous inner circle. The story
needs a hero, and the lawyer is it; while the wronged victim protested his innocence
and struggled to survive, the lawyer fought the law and won.
Of course this role is appealing, and the desire to be involved in such worthwhile
activity has spread. Numerous law schools have established "innocence projects," 7
and propose to redress, one at a time, those cases in which our criminal process has
convicted a person who is innocent of the crime with which he was charged.8
Enthusiastic participation in the undoubtedly heroic process of righting a
miscarriage of justice is commendable. Yet the intense focus of resources and
attention on the movement suggests that it bears further study. It is appropriate to
stop and consider the implications of the movement for the rest of the system: for the
clients, lawyers, jurors, and policymakers who are still struggling to produce fair

7
SCHECK, supra note 2, at 250; see also Brooke Vance, U.Missouri-KCLaw School Plans
Fightfor Inmates, UNIVERSITY WIRE, Feb. 6, 2001 (discussing plan to institute an Innocence
Project at UMKC); Project Takes Aim at Wrongful Convictions, THE RECORDER, Feb. 16,
2001, at 11 (discussing Santa Clara University School of Law's launch of the Northern
California Innocence Project); Chris Dettro, UIS Eyes Project to Probe Possible Wrongful
Convictions, STATE JOURNAL-REGISTER, Feb. 28, 2001, at 11 (discussing plan to organize
Innocence Project at the University of Illinois at Springfield); Anna Gould, Freed Inmate
Thanks U. Wisconsin Project, DAILY CARDINAL, March 2, 2001 (discussing Wisconsin
Innocence Project's assistance to Christopher Ochoa, whose conviction was overturned with
the help of the project); Jennifer Sikes, Innocent But Condemned, HERALD-SUN, JUNE 27,
2001, at A12 (editorial discussing the Innocence Project at Duke Law School); Michigan
Briefs, SOUTH BEND TRIBUNE, July 17, 2001, at D4 (discussing Cooley Law School Innocence
Project); Valerie Richardson, Falsely Accused Pair Wins Judgment, WASHINGTON TIMES,
August 4, 2001, at AI (discussing case that led to the creation of Innocence Project Northwest,
a pro bono organization begun by lawyers and students at the University of Washington Law
School); Denise T. Ward, Course Teaches Future Attorneys to 'Dig Deep', SAN DIEGO
BUSINESS JOURNAL, Sept. 24, 2001, at 5 (discussing California Western School of Law's
California Innocence Project); Ginnie Graham, Prisoner is Set Free by Science, TULSA
WORLD, Oct. 16, 2001 (discussing DNA Project operated by the Oklahoma Indigent Defense
System); Drifter Might Not Be Killer, OTTAWA SUN, Nov. 9, 2001, at 20 (discussing case
being handled by the Innocence Project at Canada's York University's law school).
8
Nor is wrongful conviction exclusively an American problem. See, e.g., Kirk Makin,
When a Guilty FindingRaises a Reasonable Doubt, GLOBE AND MAIL, Dec. 18, 1998, at A I5
(noting that Britain's Criminal Cases review commission, created in mid-1997 to ferret out
wrongful convictions, was swamped with over 2000 applications for review, and that 34 cases
had been referred for rehearings, six of which had resulted in exoneration, one of a man
hanged forty-five years before); Colin N ickerson, Jail-cellNightmare Comes to a Close in
Canada, BOSTON GLOBE, May 20, 1999, at A2 (describing case of David Milgaard, awarded
$7 million in reparations for his wrongful conviction and lengthy imprisonment for a rape and
murder after DNA testing showed that semen found on victim could not have been his).
2001] THE PROBLEM WITH INNOCENCE

outcomes in ordinary cases.9 It is important to consider that system, because that is

where most determinations about criminal responsibility are definitively made. The
developing network of innocence projects can take on only a very limited number of
cases, and can secure exoneration in still fewer. And exonerations, while valuable,
come after years of struggle and, often, after many years of unjust incarceration. For
innocent criminal defendants, the best hope is not a postconviction exoneration, but a
just outcome in the initial phase, the "preconviction" phase, if you will, of a criminal
proceeding. Accordingly, we need to consider the consequences of the innocence
movement for the ones left behind: the lawyers, defendants, and jurors trying to
secure just outcomes in criminal cases.
The first concern is that, far from suggesting that the system is irreparably
broken, the innocence movement suggests, instead, that the system works.' ° The fact
that persons wrongfully convicted of crimes they did not commit have been able to
secure relief through the system, it could be argued, belies the need for reform.
Proved cases of wrongful conviction prove too much, for the very existence of these
cases suggests that wrongful convictions c an b e o verturned, that injustices c an b e
righted, and that even the staggering burdens of demonstrating innocence in the
postconviction environment can easily be overcome.
Such a conclusion would be wrong, however, because if the existing system were
functioning effectively to identify all--or even most-cases of wrongful conviction,
it would be identifying many more than it does. Far from being surprising, so-called
"wrongful convictions" are not "wrongful" at all, except in the moral sense; under
our system, convictions of innocent people can and should be anticipated. This
becomes apparent if we quantify, for the sake of argument, the standard of proof we
routinely apply in criminal cases. If requiring that the state prove the guilt of the
defendant "beyond a reasonable doubt" means that the jury must be 99% sure of the
defendant's guilt-surely a high standard-then there are likely to be convictions in
which there is a residual possibility that the defendant is in fact innocent." To say
that jurors are 99% certain is the same as saying that they are 1% unsure; to the
extent that their certainty level is consistent with the facts, that 99% sure jury will be
wrong 1% of the time.' 2 Since that is the case, we should be surprised, perhaps, not
by the fact that there are so many exonerations of wrongfully convicted individuals,
but that there are so few. Since each exoneration reflects a failure to apprehend and

9
This can include guilty pleas as well as trials. Postconviction DNA exonerations have
been secured in cases in which the defendant originally pled guilty. See, e.g., Peter Neufeld,
The Legal, Ethical, and PracticalIssues of Post-Conviction DNA Testing, 35 NEw ENG. L.
REv. 639, 640 (2001) (citing case of Chris Ochoa, who confessed to a rape, robbery and
murder he did not commiut and pled guilty to the charges to avoid a death sentence); COVICTED
BY JURIES, supra note 2, at 12 (discussing the case of David Vasquez, who pled guilty to a
rape and murder but was later exonerated).
OSee Statement of Senator Russ Feingold, Hearing on Post-Conviction DNA Testing:
When is Justice Served?, Sen. Judiciary Comm., June 13, 2000, ("Now, some could argue that
this high rate of reversal [in capital cases] shows that the system works").
" We cannot say that there is precisely a 1% chance that the defendant is innocent because
jurors may be more convinced of the defendant's guilt than the burden of proof demands.
12To the extent that jurors are influenced by impermissible factors, such as bias, their
accuracy is likely to be even lower.
 CLEVELAND STATE LA W REVIEW [Vol. 49:449

convict the right person, the fact that we fail to detect so many should be of concern
not just because an innocent person has been wrongly convicted, but because society
is still vulnerable to the actual but undetected culprit."
The reason we see comparatively few exonerations is partly a function of the
nature of the proof required to demonstrate innocence. An exoneration based on
innocence requires, in the ordinary course, overwhelming proof, which is necessary
to overcome the substantial procedural barriers to relitigation of outcomes in
criminal cases. The most visible type of such proof is DNA evidence, which has the
joint advantages of being highly accurate and, in most cases, having been
unavailable-at least in its current more sophisticated incarnation-at the time of the
initial conviction. Many wrongfully convicted individuals are unlikely to have such
proof to offer.
The factors that give rise to wrongful convictions have been described with some
clarity, and include mistaken eyewitness identification, erroneous forensic science,
coerced confessions, police or prosecutorial misconduct, use of untruthful informants
or other witnesses, and inadequate or incompetent legal assistance.14 But the
presence of these factors, even if demonstrable, is not, standing alone, sufficient to
supply proof of innocence. 5 Whether an innocent person is able to muster the kind
of evidence that constitutes conclusive proof of innocence is more or less a matter of
chance. 6 Because we can identify with precision a number of cases where wrongful

13See CONVICTED BY JURIES, supra note 2, at xxvii ("In the future we must reduce the
likelihood of innocent persons being wrongly convicted, just as we must increasethe chances
of guilty parties being identified and held responsible for the crimes they commit.").
14 'hese categories are set out in SCHECK, supra note 2, at 246 (noting that of the cases in
which the Innocence Project secured DNA exonerations, 84% of wrongful convictions were
based in part on mistaken identifications; 21% were based in part on testimony of jailhouse
informants; 24% were based in part on false confessions; 27% of the defendants had
inadequate legal help; there was prosecutorial misconduct in 42% of the cases and police
misconduct in 50%, and 1/3 involved tainted or junk science). The conclusions of this recent
study are strikingly similar to the findings of Edwin Borchard, whose 1932 volume,
CONVICTING THE INNOCENT, profiled sixty-five cases in which innocent persons had been
wrongly convicted of crimes. While Prof. Borchard chose the profiled cases "somewhat at
random," id. at viii, he noted in the introductory chapter of the book that "these mistakes in the
administration of justice" could be grouped into particular categories of error, and that "it
*seems permissible to draw certain inferences from them in order that their repetition may be
minimized and, if possible, avoided." Id. He identified the sources of error as mistaken
identification (responsible for twenty-nine of the sixty-five convictions); lying witnesses
(fifteen convictions); prosecutorial or police overzealousness (sixteen convictions); unreliable
or coerced confessions (at least two convictions); unreliable expert testimony (eight "striking"
convictions); and inadequacy of defense counsel (in the majority of cases, the accused was a
poor person and unable to secure adequate counsel). Id. at xiii-xx.
15
See CONVICTED BY JURIES, supra note 2, at xiv (noting that mistaken identification
contributed to all twenty-eight cases of wrongful conviction in the study and that erroneous
forensic testimony contributed to two-thirds, and noting, "The sobering fact is that in all
twenty-eight cases, the error was unmasked-and justice finally served-only because of the
novel scientific technique of DNA typing.").
16
At least in the context of DNA evidence, the person wrongfully accused of a sex crime
may be at an advantage. Because sexual activity can leave biological evidence, such
individuals may be more able to demonstrate that the biological fluids left at the scene of a
2001] THE PROBLEM WITH INNOCENCE

conviction can be definitively proved, it stands to reason that there exists a

significant additional percentage of cases where a conviction is "wrongful," but
cannot be proved wrongful to the certainty required by the various procedures
available: postconviction or habeas corpus actions, clemency or pardon proceedings,
or prosecutorial cooperation. Some may argue that unless the current system detects
and corrects all the cases in which innocent persons have been convicted, it is a
failure. By contrast, far from concluding that the wrongful convictions cases reveal a
system that is fundamentally broken, others will view these cases as proof that the
existing system for identifying and redressing injustices works. The danger of the
latter view is that the press for reforms will be limited to streamlining the innocence
process,17 and, presumably, will reject more sweeping reforms of the existing system,
clearly needed to protect those left behind.
Even more significant, however, is the potential "burden-shifting" impact of the
innocence cases. The fact that wrongfully convicted persons can and have proven
their innocence of the crimes of which they have been convicted may tend to suggest
that charged persons can, and perhaps should, come forward with proof of innocence
in order to avoid conviction.
One possible source of this impact is the use of DNA evidence to secure
exonerations. The recent plethora of "proven" wrongful convictions has at least in
part been the function of DNA evidence, which makes it possible for convicted
persons in a certain narrow category of cases to demonstrate with a strong degree of
certainty that they did not commit the crimes of which they were convicted. Where
biological evidence is definitively believed to belong to the perpetrator of a crime,
proof that the DNA of the perpetrator is inconsistent with that of the person
convicted of the crime has often-though not invariably s 8- been treated as
conclusive "proof' of innocence. The emergence of DNA technology19 has provided
a highly effective method-one not dependent on credibility--of ascertaining the

crime did not belong to them. In the CONVICTED BY JURIES study cited, supra note 2, all
twenty-eight cases of DNA exoneration involved sexual assault. Id. at 12.
17This has proven to be the legislative response. See infra note 50 and accompanying text.
18
The prosecutorial theory that the biological evidence is definitively that of the suspect
may change if the DNA analysis determines that the sample did not come from the suspect.
Proof that the DNA of the sexual assailant did not match that of the person convicted of a rape
and murder may lead to the development of a new prosecutorial theory: that the accused
participated jointly in the crime with an unknown-and hitherto unpostulated-third party who
left t he biological s pecimen a t t he scene, t ermed b y S check t he "unindicted c o-ejaculator."
See SCHECK, supra note 2, at 248.
9
1 See CONVICTED BY JURIES, supra note 2 (detailing twenty-eight cases in which DNA
evidence contributed to exoneration of a convicted defendant). See also Shirley E. Perlman,
Trials By Error, NEWSDAY, July 26, 1999, at A07 (discussing "growing number of cases in
which DNA evidence ...is being used to clear suspects and overturn convictions" and noting
that 64 people who had been convicted, most in rape and murder cases, have been cleared "at
least in part, by DNA evidence that either was not available or was not requested at the time of
conviction"); David Protess & Rob Warden, Nine Lives, CMCAGo TRIBUNE MAGAZINE, Aug.
10, 1997, at 20 (four of nine Illinois men exonerated in Illinois were proved innocent based on
DNA testing). All the exonerations in ScrmcK, supra note 2, were based on DNA testing. See
id. at 12.
 CLEVELAND STATE LA W REVIEW [Vol. 49:449

legitimacy of certain categories of innocence claims.2" Recent legislative attention to

how claims for testing should be handled reflects the significance of this category of
claims of innocence.21
But DNA is effective proof of innocence only in a limited category of cases.
Only where biological material can be unequivocally attributed to the perpetrator of
a crime' and where the suspect can be excluded as the donor of the biological
material is the DNA evidence "proof' of innocence.' This is likely to be the case
only in sex crimes or in cases in which the criminal actor-and only the criminal
actor-has left biological material at the site of a crime. 24 Many crimes-even
crimes of v iolence-include no such evidence." In a wide variety of cases, then,
26
DNA evidence cannot dispositively rule out a potential suspect.
Moreover, the current flurry of DNA exonerations of persons wrongfully
convicted for the most part focuses on biological samples either not subjected to
DNA testing at the time of trial, or subjected to earlier and less sophisticated testing.

20
See All Things Considered, May 19, 1999 (transcript) (available on LEXIS) (quoting
Barry Scheck: "There's a class of cases, a pool of cases that I think runs into the thousands
where people could prove their innocence through post-conviction DNA testing," and noting
the unique opportunity provided: "What makes this unique is that we can get a fact finding 10,
15, 20 years later that's more reliable than the original trial because of this advance in
scientific e vidence. S o I think t his i s a ctually unique i n c ertainly t he history o f American
jurisprudence and any other jurisprudence that I know of.").
21
See supra note 50 and accompanying text.
22
See All Things Considered, supra note 20 (quoting Barry Scheck: evidence subject to
DNA testing "could be burglaries where, you know, saliva or blood or hairs are left at the
point of entry, anything where biological evidence could be dispositive-I mean, you know,
somebody licking a stamp in a fraud case.").
23
See Perlman, supra note 19, at A07 (noting that DNA evidence is collected in less than 4
percent of criminal cases overall).
24
While DNA is routinely left at scenes through samples of skin, hair, and saliva, those
samples will rarely be exonerative because such items are routinely found in many places and
need not be uniquely attributed to the criminal actor. However, even exonerative evidence is
sometimes negated. In one case, when a pubic hair believed to belong to the perpetrator of a
sexual assault was found not to match the suspect's hair, the prosecution backtracked, arguing
that the hair-found in the victim's bed-might have come from a public restroom or a
laundromat. See SCHECK, supra note 2, at 201. Ultimately, it developed'that there was not
one such h air, but three, making such theories even m ore farfetched t han t hey would h ave
been otherwise. Id. at 208.
25
Without such evidence, "blameless people will remain in prison, stranded because their
cases don't involve biological evidence. The debt of justice will remain unpaid to innocent
people accused of crimes in which the criminal did not ejaculate, spit, bleed, or shed tissue."
SCHECK, supra note 2, at 250.
26
See SCHECK, supra note 2, at 221 (noting that an individual wrongfully convicted of the
rape and murder of a child was saved by "[a] semen stain the size of a dime," and positing,
"Suppose the killer of Dawn Hamilton had 'merely' murdered her, and not added sexual
assault to his crime; there would have been no semen on Dawn's panties to find, no sperm
cells barcoded with the murderer's DNA. .. . But for that, the state of Maryland, under
authority granted it by the U.S. Supreme Court, would have murdered an innocent man.").
2001] THE PROBLEM WITH INNOCENCE

This circumstance has, as a practical matter, limited applicability in the future. The
number of cases in which biological evidence remains in evidence files and can be
retested, producing more detailed and possibly exonerating information, is both
limited and dwindling. In addition, potentially exonerative DNA testing is
sometimes affirmatively resisted by prosecutors. 27 So while DNA testing will
remain important in initial investigations and prosecutions, as the source of more or
less definitive exonerative postconviction evidence, DNA testing has a distinctly
limited shelf-life.28
That being said, the prevalent display of such evidence has the potential to send
an enduring and unrealistic message: that criminal defendants can and, perhaps,
should offer substantial, convincing, and irrefutable proof of their own innocence,
ideally, evidence that is as substantial, convincing, and irrefutable as DNA
evidence.29 Most defendants-indeed, most innocent defendants-can offer no such
thing.
My concern here is with the pool of citizens left behind to do justice as jurors in
ordinary criminal cases. Those potential jurors are now routinely exposed to news of
wrongful convictions, justly overturned through the efforts of prayerful families,
diligent lawyers, and stout-hearted inmates who never lost hope. Those tireless
efforts having borne fruit, the citizen may believe that similar efforts will be made on
behalf of any person charged with a crime-or at 1east any person who was truly

27
See Neufeld, supra note 9, at 640 (in roughly half of the Innocence Project's cases,
prosecutors did not consent to DNA testing). There have, however, been cases where
prosecutors have consented to DNA testing. See, e.g., CONVICTED BY JURIES, supra note 2
(noting that in at least six of the twenty-eight DNA-based postconviction exonerations cited in
the report, prosecutors consented to release samples for testing); Ross E. Milloy, Public Lives,
N.Y. TIMES, Oct. 21, 2000, at A9 (discussing decision of Texas district attorney Ronnie Earles
to re-examine 400 convictions for potential exonerative DNA evidence).
28See SCHECK, supra note 2, at 250 ("In a few years, the era of DNA exonerations will
come to an end. The population of prisoners who can be helped by DNA testing is shrinking,
because the technology has been used widely since the early 1990s, clearing thousands of
innocent suspects before trial. Yet blameless people will remain in prison, stranded because
their cases don't involve biological evidence.") Developing technology may still provide
some additional benefits, such as more detailed and effective testing of hair samples, which
are now subject t o m itochondrial D NA a nalysis. See Prepared Statement o f Prof. Barry C.
Scheck before the House Committee on Government Reform, Subcommittee on Government
Efficiency, Financial Management and Industrial Relations, DNA Technologies, June 12,
2001, at part VI ("[T]he Committee should be aware of a comparatively new forensic DNA
typing technique, mitochondrial testing, which can extract DNA directly from the shaft of a
hair. T his important technique is quickly demonstrating that results from microscopic hair
comparisons are unreliable."). The point remains, however, that such sampling will be
necessary or appropriate in a smaller and smaller volume of postconviction cases. DNA
exonerations, Prof. Michael Saks argues, provide a "unique view" of what goes wrong in the
criminal justice system, but, because of the likely waning of DNA exonerations, "[t]he
window will soon close." Michael J. Saks et al., The Adversary System and DNA Evidence, 35
NEW ENG. L. REV. 669 (2001).
29
See Steve Chapman, 74 Problems With the Death Penalty, CHICAGO TRIBUNE, Nov. 8,
1998, at 23 (attributing to Prof. Lawrence Marshall the view that jurors in a case involving a
serious crime often vote "to convict unless the defendant's innocence is absolutely certain.").
 CLEVELAND STATE LA W REVIEW [Vol. 49:449

innocent. The citizen may naturally expect, then, that exonerating facts will be
found in any case in which they possibly could.
Now, how will such citizens react when placed on a jury in a criminal case?
While one hopes that jurors' exposure to wrongful convictions might generate some
appropriate skepticism about the prosecution's case, another effect is also possible.
Notwithstanding what the court tells them about the burden of proof, they may
believe that innocent people can muster convincing proof of their innocence if it
actually exists. In short, the public focus on overturning wrongful convictions may
prove to have a burden-shifting effect even at the initial phase of criminal trials,
creating jury expectations that defendants will prove their innocence, or suffer the
consequences.3" It is unlikely that the public will understand the difference between
trial, where the defendant bears no burden of proof and the state must prove guilt
beyond a reasonable doubt, and the postconviction process, where the burden
definitively shifts to the convicted defendant to prove the wrongfulness of his
conviction.
The "burden-shifting" effect also has the potential to drive a wedge, at the trial
stage, between defendants who are "innocent" and defendants who are "not guilty."
At a criminal trial, jurors are instructed that if the government fails to meet its burden
of proving guilt beyond a reasonable doubt, the jury should return a verdict of "not
guilty."
A "not guilty" verdict can mean one of several things.31 I t can mean that the
jurors believed the defendant committed all the necessary elements of the crime, but
did not believe it with the requisite degree of certainty. Call this "burden of proof
innocence." A "not guilty" verdict can also mean that the jury found some, but not
all, o f t he elements o f t he offense, typically because the defendant c omnitted t he
actus reus of the offense, but lacked the necessary mens rea. Call this "legal
innocence." A "not guilty" verdict can also mean that the jurors believed the
defendant did not commit the actus reus of the crime in question. Such a conclusion
could arise from the failure of the government's proof, perhaps because the jury does
not believe that the crime happened at all, or that the defendant had anything to do
with it; perhaps the government's witnesses were not credible, or the physical
evidence was equivocal, or the identification was weak. Such a conclusion could
also arise from a defense-advanced theory: that another person committed the crime
and had access, opportunity and motive to do so; or that the identification of the
defendant is mistaken and police simply got the wrong guy. Call this "factual
innocence."
By virtue of the posture in which they arise, wrongful conviction cases seek to
prove factual innocence. At the trial phase, however, we do not distinguish between
these categories of innocence. We claim, instead, to be indifferent to them. We ask

30
1t may also create the belief that if the jury is wrong and the defendant is actually
innocent, that its error will be redressed by someone else later on. Such confidence may cause
jurors to shrink from the responsibility of acquittal, secure in the false knowledge that "if he
didn't really do it, someone else will fix it."
31
The following discussion assumes that the jurors obey their instructions. A verdict can
also be the product of jury nullification: the jury might believe that the government has proven
guilt beyond a reasonable doubt, but that the defendant should be acquitted for other reasons,
creating another category of "not guilty" verdict.
2001] THE PROBLEM WITH INNOCENCE

juries to determine whether an actor is guilty or not guilty without specifying

whether we are talking about burden of proof innocence, legal innocence, or factual
innocence.32 We treat these categories as equivalent, and the determination of which
type of innocence the jury has found is simply irrelevant to the conclusion that the
defendant is not guilty. We are not entirely indifferent to the distinctions between
these categories; we may want to condemn someone who has committed the actus
reus of a crime but lacks the necessary mens rea more than someone who had
nothing to do with the crime at all. Yet our system insists that, from the perspective
of criminal liability, they are both not guilty.
Focusing as it does on factual. innocence, the wrongful convictions movement
places a premium on it. It creates, in effect, a supercategory of innocence,33
elevating factual innocence over the other categories. My concern is that our jurors,
thoroughly schooled in the importance of factual innocence, may conclude that
anything short of factual innocence is simply not good enough to justify an acquittal.
The focus on wrongful convictions, and its emphasis on factual innocence,
affects o ther p layers in t he sy stem, a s well. C onsider criminal defendants. W hat
effect is the intense focus on factual innocence that we see in the wrongful
conviction cases likely to have on them? To determine this, we need to consider not
just criminal defendants, but criminal defense lawyers, for it is the relationship
between those lawyers and their clients that creates the concern.
Remember our wrongly convicted client, his lawyer a heroic member of the inner
circle. Contrast the role of this lawyer for a wrongfully convicted defendant with the
role of the ordinary criminal defense lawyer. Those lawyers are not viewed as
heroic. Far from it. The media portrays them as sleazy and unethical,34 one step
away from the clients they represent. 5 The polarization of the criminal bar results in
a steady flow of disparagement and critique from prosecutors.36 Disliked,

32
Indeed, jurors have no opportunity to return a verdict of "innocent"; given the question
they are asked to decide, a "not guilty" verdict, almost by definition, carries a strong flavor of
ambiguity.
33
See SCHECK, supra note 2, at 222 (distinguishing "legal innocence, in which a person
who participated in a crime was charged incorrectly with the murder," from "actual
innocence.").
34
See, e.g., M.S. Mason, Why the Law Rules, CHRISTIAN SCIENCE MONITOR, Jan. 26, 2001,
at 13 ("most defense attorneys on ' Law & Order' will d o a nything necessary t o s ave their
guilty clients").
35
Abbe Smith, in Defending Defending: The Case for Unmitigated Zeal on Behalf of
People Who Do Terrible Things, 28 HOFSTRA L. REV. 925 (2000), notes that "criminal defense
lawyers have always been an easy bogeyman" and that "To many, defenders are
indistinguishable from those they represent." Id. at 950. A recent example is the press
coverage of attorney Stanley Cohen, who stated after September 11, 2001 that he would be
willing to represent Osama bin Laden if he were asked. In response, one organization deemed
Cohen "a traitor to the Jews,... a traitor to America and all the victims of the World Trade
Center bombing." N.Y. DAILY NEWS, Sept. 26, 2001, at 20; see also William Glaberson, The
Lawyer; Defending Muslims in Court and DrawingDeath Threats as Well as a High Profile,
N.Y. TIMES, Sept. 28, 2001, at B8.
36
See, e.g., letter of Joshua Marquis, President of the Oregon District Attorney's
Association, to the ABA Journal (March 2001) ("Our [prosecutors'] job is to prosecute only
people who did it, i.e., guilty defendants, and a defense lawyer's j ob is to extricate almost
 CLEVELAND STATE LAW REVIEW [Vol. 49:449

mistrusted, and disrespected, defense lawyers make a necessary contribution,37 but it

is not a contribution we seem to like very much.
Why such a different view of these two sets of lawyers? The reason, of course, is
the different ethical positions in which they find themselves. A criminal defense
lawyer is obliged to offer an equally zealous defense on behalf of every client. Other
than those constraints imposed by the ethics rules on the lawyer's conduct (such as
constraints on the use of falsified or known perjured testimony), a criminal defense
lawyer may not provide a less energetic or impassioned defense of a client simply
because he is guilty.
Needless to say, the ethical challenges posed by such a rule are endless. May you
challenge the credibility of a witness whom you know is truthful, in an attempt to
appear to have caught him in a lie? May you offer mistaken alibi testimony, which is
truthful but erroneous, to create reasonable doubt? As a matter of criminal defense
ethics, the answer to these questions may be "yes." There are two reasons for this.
First, since the issue in a criminal case is whether the government can meet its
burden of proof, the lawyer may pursue that issue with equal zeal for all clients,
guilty or innocent.38 Second, to fail to provide the same zealous advocacy for guilty
clients that defense lawyers do for innocent clients would telegraph, to
knowledgeable players in the system that the client was, in the eyes of the defense
lawyer, guilty. That information-coming from the client's own lawyer, a person

always factually guilty clients from any responsibility for their acts."). In the recent case
involving Colorado prosecutor Mark Pautler, accused of lying to a serial murder suspect and
telling the suspect that Pautler was a public defender, Pautler justified his lying by arguing that
"[g]iving ...access to a public defender was out of the question because a defense attorney
would be obligated to advise [the suspect] to stop talking to investigators," Sarah H untley,
ProsecutorAdmits He Lied, ROCKY MOUNTAIN NEWS, March 8, 2001, at 4A, and by claiming
that the district attorney's office had an "'adversarial relationship' with the public defender's
office and that 'trust' between prosecutors and defenders 'had disintegrated in Jefferson
County some years prior."' Kieran Nicholson, Prosecutor:Ruse Justified in Arrest, DENVER
POST, March 8, 2001, at B-02.
37
See, e.g., Justice White's opinion in United States v. Wade, 388 U.S 218 (1967) (White,
J., dissenting in part) ("[D]efense counsel has no comparable obligation to ascertain or present
the truth. Our system assigns him a different mission. He must be and is interested in
preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist
that he defend his client whether he is innocent or guilty.").
38
Even some members of the Supreme Court seem confused about this issue. See James v.
Illinois, 493 U.S. 307 (1990). James, unlawfully arrested at the beauty parlor, told police that
before he went to the beauty parlor, his hair had been red and straight, where it was now black
and curly, and that he had intentionally changed his appearance. Those statements were
ordered suppressed as the fruit of the unlawful arrest. At trial, witnesses at the scene of the
crime James was alleged to have committed testified that the perpetrator had red straight hair.
Defense counsel offered as a witness a family friend who testified that, on the day of the
crime, James's hair had been black. The government then offered the suppressed statements
to impeach the testimony of the family friend. While the majority ruled that this was
improper, a four-judge dissent argued that because the defense lawyer knew the facts, he
should not have elicited testimony that was inconsistent with the suppressed statements
because he knew the testimony to be false. Id. at 326. This view disregards the possibility
that the testimony, while factually incorrect, was nonetheless truthful, perhaps the product of
mistaken recollection. As long as the testimony was not known by the lawyer to be untruthful,
counsel was not only entitled to test the government's proof, he was obliged to.
 2001] THE PROBLEM WITH INNOCENCE

with unparalleled access to the client's confidences-would be highly credible and

would shape those players' reactions to the client. The ethical obligation to be
equally zealous on behalf of innocent and guilty clients thus requires that the lawyer
not telegraph in any particular case, which kind of client he is dealing with.
Consistent with this obligation, a criminal defense lawyer should not announce
the innocence of a particular client, or even announce more generally that he "only
represents innocent clients."39 A lawyer who publicly declares his client's innocence
creates the expectation that lawyers in general-or that lawyer in particular-will
declare the innocence of all innocent clients. This suggests the disclosure of
confidential information, and creates a negative inference in any case where the
lawyer does not declare his client's innocence. It is these constraints on the lawyer's
representation of the next client that compel circumspection in the representation of
this client.4" It is the critical nature of keeping the secret that requires the defense
lawyer to put forth an equally vigorous defense on behalf of all clients.
But lawyers for the wrongfully convicted operate under no such constraints.
They pursue only those cases where they can make out a strong case of factual
innocence on behalf o ftheir clients. U nlike the criminal defense lawyer, there is
nothing morally ambiguous about the role of the lawyer for the wrongfully convicted
person, in the eyes of the law or of society as a whole.4" While criminal defense
lawyers are ethically obliged to pursue an outcome which many view as socially
undesirable, making them a necessary but somewhat untrustworthy part of the
criminal justice system, there is nothing ethically ambiguous about being a lawyer

39
Note the prohibitions in the Model Rules of Professional Conduct on "stat[ing] a
personal opinion as to the ... guilt or innocence of an accused" in trial, MODEL RULES OF
PROF'LCONDUCT § 3.4(e), and the prohibitions on extrajudicial statements that "will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."
MODEL RULES OF PROF'L CONDUCT § 3.6(a).
40
See Kevin Cole & Fred C. Zacharias, The Agony of Victory and the Ethics of Lawyer
Speech, 69 S. CAL. L. REv. 1627, 1665-66 (1996).
4'By contrast, even the ethical rules reflect some uncertainty about the legitimacy
of the
criminal defense lawyer. Consider, for example, the ethical prohibition on contingent fees in
criminal cases, memorialized in MODEL RULE 1.5(d)(2) and MODEL CODE 2-106 (C) 1983. EC
2-20 provides that "Public policy properly condemns contingent fee arrangements in criminal
cases, largely on the ground that legal services in criminal cases do not produce a res with
which to pay the fee," while the Comment to MODEL RULE 1.5 provides no explanation. The
argument that criminal cases do not produce a lump sum with which to pay the fee is
somewhat unconvincing in light of the fact that contingent fee arrangements need not be based
on the matter's producing a lump sum from which the fee can be paid. One possibility is that
the concern for creating counsel for indigent litigants is unnecessary in the criminal law
context, since counsel is a constitutional right. But another possible explanation is that
criminal defense lawyers simply cannot be trusted to conduct criminal litigation for a
contingent fee. The concern is that they will abandon their ethical obligations and manipulate
the system to assure a not guilty verdict and the consequent payment of their contingent fees.
Such improper manipulation is, of course, equally possible in the civil arena, where contingent
fees are routinely permitted. Is the assumption that the consequences to society are more
drastic in the criminal area, or is it that only criminal defense lawyers will behave so
inappropriately?
 CLEVELAND STATE LA WREVIEW [Vol. 49:449

for the wrongfully convicted.42 Your obligation as counsel to do everything lawful

to advance your client's interest is consistent with doing what is right-as long as the
client is innocent. 43 Nor are lawyers for wrongfully convicted defendants likely to
suffer the same community censure the criminal defense lawyer does." On the
contrary, the lawyer for a person who can offer strong evidence of innocence wears
the white hat. The client has been wronged; the system is broken; and the heroic
efforts of this lawyer can restore justice. The lack of ethical ambiguity may
compensate to some extent for the fact that the cases are controlled by standards and
procedures that make them extremely difficult to win.
What is the significance of this for the criminal defendants left behind? The
public focus on lawyers proudly asserting the factual innocence of their clients, and
the public approbation of those lawyers, suggests that clients, to secure devoted
lawyers, must be factually innocent; that lawyers do their best for innocent clients;
and that continued assertions of factual innocence are the best way to secure the
committed assistance of the criminal defense lawyer.
It is at least my anecdotal experience that clients try very hard to convince their
lawyers they are innocent. For some clients, this may be a calculated decision;
because they are aware of the ethical constraints on their lawyers offering perjured
testimony, they want to preserve their options.45 But at least in some cases the desire
to convince your lawyer you are innocent is not about calculated risks: it is about
getting the lawyer to commit wholeheartedly to your defense. It is not just
competent advocacy that clients want, but impassioned advocacy. It is the
commitment of a lawyer's fire to their cause.

42
One might think that the innocence movement would blur this distinction between right-
thinking lawyers for the wrongfully convicted and evildoing criminal defense lawyers; these
two categories of lawyers by definition share some of the same clients. Because at least
sometimes it is the failures of the criminal defense lawyer which are blamed for producing the
wrongful conviction in the first place, however, the two categories of lawyers remain distinct.
Scheck, et al. assert that of sixty-two DNA exonerations they have analyzed, seventeen, or
27%, involved bad lawyering. SCHECK, supra note 2, at Appendix 2.
41One can imagine that an important aspect of pursuing a wrongful convictions practice is
determining how to determine likely guilt; presumably, such evidence will get the client
removed from the list expeditiously, if only to preserve resources for those truly innocent
clients in need of the lawyer's services. Notes a member of Britain's Criminal Cases Review
Commission, " We are continually discovering significant evidence of guilt." Makin, supra
note 8, at A15. One can imagine, by contrast, that the self-doubts experienced by those
lawyers relate to the degree of commitment they demonstrate. Having satisfied yourself that
there is compelling evidence of a convicted client's innocence, one must feel an overwhelming
obligation to pursue every possible pathway that might overturn the conviction.
"While criminal defense lawyers who succeed in securing acquittals for their clients
might attain the same heroic status, they ordinarily do not. The reason for this is the burden of
proof-and the meaning of the resulting verdict-at a criminal trial. Because the verdict means
only that the state failed to meet its burden beyond a reasonable doubt, a trial verdict says
nothing about "factual innocence," and it is the factual innocence of their clients that elevates
the legitimacy of lawyers for the wrongfully convicted.
45This may be the case particularly with a highly knowledgeable client. See Margaret
Raymond, Foolfor a Client: Some Reflections on Representing the President,68 FoRDHAM L.
REv. 851, 861-62 (1999).
 2001] THE PROBLEM WITH INNOCENCE

My concern with the focus on innocence is that it will convince clients, even
more than they are already convinced, that being factually innocent-or, at least,
acting factually innocent-is an essential element of securing the attention and
sympathy of a lawyer, not just post-conviction, but at any stage of a criminal
proceeding.
All clients are not factually innocent. And those convinced that only a claim of
factual innocence will earn them a truly committed lawyer run the risk of denying
themselves the full benefit of counsel. A client who feels compelled to tell his
lawyer a story of factual innocence that is not true misses the opportunity to disclose
facts that might be partially mitigating, to explain circumstances that might support a
defense of legal innocence, or to secure optimal advice about testifying or pleading
guilty. Most significantly, such clients lose the belief that they can be guilty and still
be worthy of committed advocates.
Pursuing justice for the wrongfully convicted is a profoundly meaningful goal.
Yet the innocence movement may have unintended consequences for the criminal
justice system. This paper explores some of these, and argues that the focus on
factual innocence may create certain distortions in the way that actors in the criminal
justice system---the "ones left behind"--perceive their obligations and allegiances.
It may convince the public, including policymakers, that the system works
effectively to reveal and redress wrongful convictions. It may convince prospective
jurors that it is-or should be-the defendant's burden to prove innocence. It may
convince potential criminal defense clients that only the innocent secure the 1oyal
and skilled assistance of a committed attorney.
To say this is not to suggest that the innocence movement should cease its efforts
to secure exonerations of wrongfully convicted individuals. It is, however, to
suggest that this strategy should be viewed not only as an opportunity to do justice in
a few cases, but as an opportunity to identify and address those systemic flaws that
produce wrongful convictions.46 Such reforms should do more than enhance
opportunities-through access to DNA evidence or testing-to prove factual
innocence. Y et to date, most 1egislative activity has focused o nly o n that n arrow
goal.47 Righting these individual injustices should convince u s not that t he job i s
done, but that the job that remains is equally critical.

46
See Saks, supra note 28, at 670: "The most important thing that can be done with the
rare and time-limited view afforded by DNA exonerations is to identify the systemic flaws in
the criminal justice system that produce errors and work to cure those flaws."
47
Numerous states have enacted statutes designed to structure, facilitate and control
postconviction forensic testing. See, e.g., 2001 Arkansas Laws Act 1780 (S.B. 4) (2001)
(providing for a proceeding to establish actual innocence based on "[s]cientific evidence not
available at trial," creating procedures to secure forensic testing to prove actual innocence, and
providing for preservation of physical evidence after trials resulting in convictions); 2000 Cal.
Stats 821 (providing procedures for convicted defendants to secure forensic DNA testing and
requiring the preservation of biological evidence after a conviction); 2001 Cal. Stats 943
(amending prior statute to provide counsel to assist in making motion for DNA testing, and
providing that right to seek testing is not waivable); 72 Del. Laws 320 (2000) (providing a
procedure for convicted defendants to seek "forensic DNA testing to demonstrate the person's
actual innocence,"); 2001 Fla. Laws ch. 97 (providing procedure for convicted persons to
petition for examination of evidence "which may contain DNA ...and which would
exonerate that person or mitigate the sentence that person received," and requiring
preservation of "any physical evidence collected at the time of the crime for which
 CLEVELAND STATE LAW REVIEW [Vol. 49:449

postsentencing testing of DNA may be requested"); 2001 Idaho Sess. Laws 317 (establishing
procedure for convicted person to petition "for the performance of fingerprint or forensic
deoxyribonucleic acid (DNA) testing" when "[t]he result of the testing has the scientific
potential to produce new, noncumulative evidence that would show that it is more probable
than not that the petitioner is innocent"); 1997 I11. Laws 141 (providing a procedure for a
convicted defendant to secure "fingerprint or forensic DNA testing" that "has the scientific
potential to produce new, noncumulative evidence materially relevant to the defendant's
assertion of actual innocence"); 2001 Kan. Sess. Laws 208 (providing a procedure for a person
convicted o f murder o r r ape to seek "forensic D NAt esting. . of any b iological material"
related to the crime, which shall be ordered upon a determination that testing may produce
"exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully
convicted or sentenced"); 2001 La. Act. 1020 (providing procedure for person convicted of a
felony to request DNA testing where he can allege that "there is an articulable doubt ... as to
the guilt of the petitioner in that DNA testing will resolve the doubt and establish the
innocence of the petitioner"; the petitioner must swear, under penalty of perjury, that he is
"factually innocent of the crime for which he was convicted"; statute also provides for limited
preservation of biological evidence); 2001 Md. Laws 418 (providing procedure for securing
"DNA or other forensic testing" where the testing "could show that the defendant was
wrongfully convicted or sentenced", and requiring preservation of scientific identification
evidence); 2001 Neb. Laws 659 (providing procedure to secure "forensic DNA testing" when
testing "may produce noncumulative, exculpatory evidence relevant to the claim that the
person was wrongfully convicted or sentenced," and providing for preservation of biological
material); 2001 N.M. Laws 29 (providing procedure for securing DNA testing if the test has
potential to "produce new noncumulative evidence material to the petitioner's assertion of
innocence"); 2001 N.C. Sess. Laws 282 (providing procedure to obtain DNA testing of
biological evidence if, had it been conducted before trial, "there exists a reasonable probability
that the verdict would have been more favorable to the defendant", and requiring preservation
of biological evidence); 1999 Okla. Sess. Laws 276 (providing for a "DNA Forensic Testing
Program" within the Oklahoma Indigent Defense System to "investigate, screen, and present
...claims that scientific evidence will demonstrate indigent persons convicted of, and
presently incarcerated on, any felony offense upon which the testing is sought are factually
innocent"); 2001 Ore. Laws 667 (providing procedure for person convicted of murder, a
person felony, or a sex crime to seek DNA testing; person must state that he or she "is
innocent of the offense for which the person was convicted"; testing shall be ordered if "there
is a reasonable possibility that the testing will produce exculpatory evidence that would
establish the innocence of the person" of the offense or conduct exoneration which would
result in sentence reduction); 2000 Tenn. Pub. Acts 731 (providing procedure for person
convicted of first degree murder and sentenced to death to secure "fingerprint or forensic DNA
analysis" if "the testing has the scientific potential to produce new, noncumulative evidence
materially relevant to the defendant's assertion of actual innocence"); 2001 Tenn. Pub. Acts
444 (providing procedure for persons convicted of a specific group of offenses to seek
"forensic DNA analysis of any evidence", which shall be granted if "[a] reasonable probability
exists that the petitioner would not have been prosecuted or convicted if exculpatory results
had been obtained through DNA analysis"); 2001 Tex. Gen. Laws 2 (providing for
preservation of biological evidence and creating procedure to seek "forensic DNA testing of
evidence containing biological material," which shall be granted if "a reasonable probability
exists that the person would not have been prosecuted or convicted if exculpatory results had
been obtained through DNA testing"); Utah Code Ann. § 78-35a-301 (2002) (providing
procedure for person convicted of any felony to seek postconviction DNA testing "if the
person asserts his actual innocence under oath"; filing a request constitutes a waiver of any
statute of limitations as to any felony offense discovered through DNA database comparison);
2000 Wash. Laws 92 (providing procedure for person sentenced to death or life imprisonment
to request postconviction DNA testing from prosecutor); 2001 Wash. Laws 301 (revising prior
statute to apply to any person convicted of a felony and currently serving a term of
2001] THE PROBLEM WITH INNOCENCE

Advocates for the wrongfully convicted have offered proposals for such systemic
reforms,48 believing, perhaps, that proof that the current system produces wrongful
conviction will lead inexorably to reform of that system. The legislative response
suggests that mere exposure to the phenomenon of wrongful conviction does not
invariably produce equal attention to the causes of that phenomenon. History might
also suggest some skepticism about the power of such information, standing alone, to
bring about far-reaching systemic change. In 1932, Prof. Edwin Borchard published
Convicting the Innocent, a book in which he set out 65 cases of wrongful conviction
and offered proposals for reform. The causes he identified for the wrongful
convictions-mistaken identifications, inadequate lawyering, police or prosecutorial
misconduct, false or coerced confessions, and perjury-are strikingly similar to those
offered today by advocates for the wrongfully convicted. He also advocated the
same kinds of relief as today's advocates. Yet we find ourselves, seventy years later,
addressing the same problems and the same causes. The lesson is clear: we do not
solve this problem merely by identifying it.

imprisonment, and providing for limited p reservation of biological evidence). T he statutes

differ extensively in their limitations periods, in the character of the persons who may avail
themselves of them, and in the showing that must be made to justify testing. I offer no critique
of these statutes; the point is simply to demonstrate that legislatures have responded
overwhelmingly to the wrongful convictions problem with solutions that will address not the
sources of wrongful conviction, but the bringing of further claims of postconviction DNA
exoneration.
I have been unable to locate statutes addressing, for example, the issue of mistaken
eyewitness identification. The proposed federal Innocence Protection Act, see Innocence
Protection Act, S.B. 486, 107th Cong., (2001) attempts to address competency of counsel, but
limits its focus to capital cases and has not been reported out of committee.
A few states have, in addition, passed private bills to redress individual situations of
wrongful conviction and imprisonment. See, e.g., 1999 Cal. Stat 619 (statute ordering
payment of $620,000 to Kevin Lee Green to compensate him for his wrongful conviction in
the murder of his wife); 1996 Va. Acts ch. 754 (statute ordering payment of $150,000 to
Edward William Honaker and establishing an annuity for him in the cumulative amount of
$350,000 to compensate him for his wrongful conviction of rape).
48
Proposals for the kinds of reform that they believe will diminish the phenomenon
include better management of eyewitnesses, better compensation and higher requirements for
appointed defense counsel, taping of all confessions, screening of informants' testimony, and
constraints on the use of junk science. These are among the recommendations outlined in
SCHFCK, supra note 2, at 255-60. Ironically, Prof. Edwin Borchard's 1932 book, Convicting
the Innocent, contained strikingly similar recommendations. S ee s upra note 1 4. B orchard
noted that wrongful convictions were frequently found where the public opinion was aroused
by high-profile crimes, id. at xviii, and argued for reform in the criminal justice system, as
well as for a scheme of compensation for those wrongly convicted. Seventy years later,
advocates on behalf of the wrongfully convicted assert the same message. SCHECK, supra note
2, at 250.