Defining innocence.

• Author: Findley, Keith A.

1. INTRODUCTION

   The discovery of hundreds of wrongful convictions in the past twenty years has reshaped the debate about criminal justice in this country, spawning what has become known as the "Innocence Movement," (1) an "Innocence Revolution," (2) or even the new "civil rights movement." (3) The innocence cases have exposed as self-deception our longstanding belief that the criminal justice system does all it can to guard against convicting the innocent, and that mistakes, rarely if ever made, are anomalous rather than systemic. The exonerations have moved us beyond an abstract understanding that there must, of course, be an occasional unknown innocent in prison, to "knowing their names and faces and learning how their lives were destroyed." (4) In fits and starts, the Innocence Movement has generated a measure of new receptiveness to the reality of error in the criminal justice system, and hence to the possibility of post-conviction relief. (5) And the Innocence Movement has generated a host of recommendations for reforms that promise to improve the reliability of the criminal justice system in its core function: sorting the guilty from the innocent. (6)

   As with any "movement," though, the Innocence Movement has evolved through phases, including the inevitable push back from defenders of the status quo. That push back comes in two forms: (1) resistance at the macro level to the notion that wrongful convictions really present much of a problem, that is, that there is any systemic problem that requires remedy; and (2) resistance to claims of innocence in individual cases by prosecutors and judges at the micro level. At both levels, the debate inevitably raises a fundamental definitional question: what counts as an "exoneration," or when is a convicted offender counted as an "innocent"? (7)

   The question is not trivial. It has serious real world implications. At the policy level, defining what we mean by "exoneration" and "innocence" is important for two reasons. First, it defines the scope of the problem; it tells us which and how many cases can be counted as wrongful convictions. (8) To determine whether the problem of wrongful convictions is episodic or systemic, and hence whether it occurs with sufficient regularity to warrant concern on a policy level, we have to know what instances count. Second, studying wrongful convictions to draw lessons about causes and remedies requires that we identify which cases we are going to examine. The data set has to be properly determined to include only (or as close as possible) cases of actual innocence.

   At the individual case level, defining "exoneration" and "innocence" has implications for both the procedures and the substance that will govern post-conviction litigation based in whole or in part on claims of innocence. And for those who are successful at challenging their convictions, the definitions can determine the degree to which a freed individual is entitled or permitted to make a moral claim to rehabilitate his or her name--a matter not insignificant to anyone whose life has been shattered by a wrongful conviction.

   The debate about the definition of "innocence" largely treats the question as identical for both policy and case litigation purposes, subsuming both under a general category of "wrongful conviction." Typically, the definition runs something like, "the innocence movement focuses on wrongful convictions in the factual sense, where the wrong person is convicted for a crime, or is convicted for a crime that did not occur." (9)

   While such a definition is appropriate and accepted, it is deceptively oversimplified. It masks the reality that deciding who counts as "the wrong person" can be difficult and unclear, and that there are multiple standards for determining innocence that are context dependent.

   Some scholars break "innocence" into several separately defined categories. Margaret Raymond, for example, identifies what she calls "burden of proof innocence," "legal innocence," and "factual innocence." (10) Cathleen Burnett also distinguishes three types of innocence, which she calls "actual innocence," "factual innocence," and "legal innocence." (11) In a slightly different way, William Laufer recognizes three categories of innocence--again, legal innocence, actual innocence, and factual innocence--which he distinguishes by varying requisite degrees of proof. (12) I argue that these distinctions are largely meaningless in our system of justice and that there is really only one functional category of "innocence," although how innocence is determined can vary depending on context. (13)

   In some ways, the DNA exonerations, while clarifying the extent and nature of the problem of wrongful convictions, have simultaneously muddled the picture by creating a category of cases in which there is little, if any, doubt that the accused was wrongly convicted and was in fact innocent in a system that generally has no corresponding legal category for clear innocence. The innocence movement got its initial momentum from using new evidence-primarily DNA evidence--to prove factual, as opposed to "legal," innocence. The concept of "innocence," however, has no real legal meaning in most jurisdictions. In a legal system that presumes innocence unless and until guilt is established beyond a reasonable doubt, and generally permits or requires no corresponding finding or judgment of "innocent," (14) it can be a vexing problem to determine when a person previously found "guilty" is entitled to relief from an unsound conviction as opposed to when a person may justifiably claim to be "innocent" and to have been "exonerated." The DNA cases raised the expectation, for some, that "exoneration" and "innocence" are findings that can--and must--be established to levels of virtual certainty. But it turns out that even DNA cases come in varying shades of gray. There is no such thing as absolute proof of innocence, just as there is no such thing as absolute proof of guilt.

   Claims of innocence in non-DNA cases can be even more tinged with gray tones, in part because of the inherent difficulty and ambiguity in trying to prove a negative. Claims of innocence based upon challenges to convictions resting upon recantations, or resting upon inherently unreliable forensic "science" evidence, are especially complicated and increasingly common examples of such gray-shaded innocence cases. For example, if a defendant was convicted of an arson offense or a child homicide based upon a theory of shaken baby syndrome, and new scientific evidence undermines or seriously challenges the scientific evidence underlying the state's case, can the defendant who successfully obtains a reversal and dismissal of the charges claim to be "innocent"? (15) After all, while the new evidence may provide new grounds for challenging the prosecution's proof of guilt, (16) it does not necessarily conclusively prove the opposite: that the defendant did not commit the crime charged. (17)

   This essay argues that--while the notion of "innocence" does indeed mean factual innocence, in the sense that the defendant committed no crime--to demand certainty is to demand the impossible, and that, in the end, the best we can or should do is rely on the legal standards that define guilt and, absent proof of guilt, presume innocence. Anything less than that invites endless controversy about subjective assessments of guilt and innocence, (18) unwarranted insult and injury to the innocent who are forced to live under a continuing cloud of suspicion, and erosion of some of our most fundamental constitutional principles. The standard definition of "exoneration" in the scholarly literature usually includes all cases in which a conviction was vacated based, in part, on evidence of innocence, by a court or executive, followed by no new trial or an acquittal at retrial. (19) Because that definition does not perfectly define who is factually innocent, (it can be both underinclusive and over-inclusive), that definition is often considered different than the definition of "innocence." This essay argues, however, that because our access to truth is imperfect, that definition is the only workable one we have for both "exoneration" and "innocence." And because of variability between differing contexts and jurisdictions, this essay observes that there are multiple standards governing how much proof of innocence is required for exoneration, and hence for determining who is factually innocent.

   This is not to say that innocent individuals in prison who have not been exonerated cannot be permitted to continue to claim innocence. Rather, this is an argument that, while objective truth is always important, it is ultimately always ambiguous in a world with imperfect knowledge. Thus, when we "officially" label people as "innocent" we have to use the legal definition; that legal definition is both necessary and sufficient. Convicted but factually innocent people can continue to claim to be innocent, and they should do so if they are in fact innocent. Their advocates can assert innocence on their behalf, in an effort to overturn their convictions.

   But until a court or executive makes a determination, that assertion is largely meaningless and unverifiable. By the same token, once a court or executive does vacate a conviction based on evidence of innocence, unless and until the person is convicted again, claims that the person is actually guilty are also meaningless, and indeed inappropriate from prosecutors who, having failed to prove guilt, have a duty to respect the constitutional presumption of innocence.

2. DEFINING INNOCENCE FOR POLICY ANALYSIS

   1. Counting Exonerations in the Era of DNA

      Defining "innocence" and "exoneration" is essential to an informed policy discussion. At its most basic level, coming to some understanding about what we mean by those terms is necessary to determine whether the criminal justice system does indeed produce such...