Truth and Innocence Procedures to Free Innocent Persons: Beyond the Adversarial System

Through innocent pleas and innocence procedures, this Article urges a fundamental change to the adversarial system to minimize the risk that factually innocent persons will be convicted of crimes. The current system, based on determining whether the prosecution can prove guilt beyond a reasonable doubt, results in acquittals of guilty persons when evidence is sparse and convictions of innocent persons when evidence is abundant. It might be easier philosophically to accept that guilty persons will go free than to know that some innocent persons will be convicted and imprisoned, especially in the American justice system where erroneous jury verdicts based on factual determinations are virtually never reversed. Thus, where defendants claim to be factually innocent, the adversarial system should provide for a plea of innocent, as opposed to only a not guilty plea, as well as innocence procedures through which to search for the truth of the prosecution’s allegations. Innocence procedures would require the defendant and the prosecution to engage in a truth-seeking function. The prosecution would have to investigate with a view toward finding exculpatory evidence, rather than expecting the defendant to produce it. The defendant would have to submit to interrogation, and his attorney would have to affirm that the defendant is innocent. Jury instructions at trial would ensure that the prosecution and defendant acted in good faith, and where a defendant pleaded innocent, submitted to interrogation, and then still faced trial the prosecution would be required to prove guilt to a standard higher than beyond a reasonable doubt. By introducing a truth-seeking function into the adversarial system prior to trial, innocent persons would have a more realistic opportunity to save themselves, when in the current system their fates are virtually irrevocably sealed when a jury returns a guilty verdict.