The Immortal Accusation

• Publication year: 2021

THE IMMORTAL ACCUSATION

Lindsey Webb(fn*)

Abstract: In the American criminal justice system, accusations have eternal life. Prosecutors, judges, and prison officials regularly consider dismissed charges and even prior acquittals in the defendant's criminal history when making decisions ranging from the filing of charges to the imposition of punishment. This Article argues that the criminal justice system's reliance on "accusation evidence" should be understood as furthering that system's larger allegiance to attaining and preserving findings of guilt.

Once the government obtains a guilty plea or verdict, appellate courts rarely overturn convictions based on concerns about the accuracy of the conviction; indeed, post-conviction review procedures often are structured to prevent meaningful consideration of innocence claims. Appellate courts will eventually cease reconsideration of the conviction altogether, even, in many cases, where legitimate questions about the defendant's guilt remain. But while convictions are eventually laid to rest, accusations that do not result in convictions can be reconsidered forever, in a variety of contexts, by a variety of government actors, applying low or non-existent standards of proof. Once guilt is obtained, the system aims to preserve it; if guilt is eluded, the system will pursue it.

This Article begins by reviewing the ways in which the criminal justice system seeks to obtain and maintain convictions. It then discusses the criminal justice system's reliance on accusation evidence, identifying how uncertainty about the defendant's culpability in the absence of a conviction drives decision makers to reconsider that outcome and replace it with their own determinations of guilt. It goes on to contrast the systemic reconsideration of convictions with the reconsideration of charges for which no conviction was obtained, using the doctrine of finality as a comparison point. Based on this analysis, it argues that the criminal justice system is structured to obtain and preserve findings of guilt, even if doing so does not advance the pursuit of truth or the conviction of the culpable. This Article then examines the implications of the systemic dedication to the pursuit and preservation of guilt, and suggests ways in which it might, and should, be dismantled.

INTRODUCTION .............................................................................. 1854

I. THE AMBIGUITY OF CONVICTIONS .................................... 1857

A. Barriers to Raising Claims of Factual Innocence in Appellate Review of Guilty Pleas ...................................... 1860

B. Barriers to Raising Claims of Factual Innocence in Appellate Review of Jury Verdicts .................................... 1863

II. THE IMMORTALITY OF ACCUSATIONS ............................ 1870

A. Accusation Evidence in Trial ............................................. 1873

1. Accusation Evidence as "Other Act" Evidence Under Federal Rule of Evidence 404(b)(2) .............. 1873

2. Accusation Evidence in Sex Assault and Child Molestation Trials ..................................................... 1876

3. Accusation Evidence and Credibility ....................... 1877

B. Accusation Evidence in Juvenile Transfer Hearings .......... 1878

1. Accusation Evidence and Prosecutorial Discretion in Juvenile Transfer Decisions ................................. 1879

2. Accusation Evidence and Judicial Discretion in Juvenile Transfer Decisions ..................................... 1880

C. Accusation Evidence in Sentencing ................................... 1882

D. Accusation Evidence Outside of the Courtroom ................ 1884

1. Accusation Evidence in Prosecutorial Charging Decisions .................................................................. 1884

2. Accusation Evidence in Probation and Parole Revocation Proceedings ........................................... 1885

3. Accusation Evidence in Prison Classification Procedures ................................................................ 1886

III. THE INCONSISTENCY OF UNCERTAINTY ......................... 1887

A. Examining the Role of Uncertainty Through the Lens of Finality ............................................................................... 1888

IV. THE PRESERVATION OF GUILT ............................................ 1893

A. The Ramifications of a Systemic Allegiance to Guilt ........ 1894

B. Dismantling the Allegiance to Guilt ................................... 1896

CONCLUSION .................................................................................. 1900

INTRODUCTION

The criminal justice system frequently relies on what this Article will call "accusation evidence," that is, evidence of criminal conduct for which a person was once formally accused and subjected to criminal prosecution, but for which the defendant was not convicted. Prosecutors, judges, and prison officials regularly consider dismissed charges and even prior acquittals in the defendant's criminal history when making decisions ranging from what new charges should be filed against him(fn1) to what punishment is merited if a conviction is obtained. The reliance on unproven accusations is generally justified by reference to lingering questions regarding the defendant's actual culpability when a case results in a dismissal or acquittal, and thus by the search for truth. This Article argues that the reliance on accusation evidence is more accurately understood as part of the criminal justice system's larger allegiance to obtaining and preserving findings of guilt.

The criminal justice system's widespread reliance on accusation evidence highlights the sharp contrast between the ways in which the system handles the reconsideration of cases that resulted in a conviction and those that did not. Once the state obtains a guilty plea or verdict, appellate courts rarely overturn convictions based on concerns about the accuracy of the conviction; indeed, post-conviction review procedures often are structured to prevent meaningful consideration of innocence claims. Appellate courts will eventually cease reconsideration of the conviction altogether, even, in many cases, where legitimate questions about the defendant's guilt remain. When a criminal accusation does not result in a conviction, however, it can be reconsidered forever, in a variety of contexts, by a variety of government actors, applying low or no standards of proof, in search of the guilt for which the accused person may have escaped justice in the past.

Further, there are few procedural bars to the use of accusation evidence. While the prohibition against double jeopardy prevents the government from prosecuting a person for a crime for which he was previously acquitted, it does not prevent reconsideration of prior charges that did not result in a conviction for other purposes, particularly if the defendant is charged with new crimes. Appellate courts have widely condoned the reconsideration of unproven accusations in a criminal defendant's past, generally by reasoning that the prosecution's failure to convict a defendant of a crime beyond a reasonable doubt does not preclude a conclusion that the defendant is factually guilty of that crime. Thus, parole officers may revoke a person's parole and send him back to prison based on crimes for which he was acquitted, prison officials may classify inmates as sexual offenders based on charges that the government dismissed, and judges may impose a more severe sentence on a defendant based on charges for which the jury found him not guilty.

If an accused person admits his guilt or the government proves him guilty beyond a reasonable doubt, it is easy to understand why decision makers in the system might have greater confidence in the accuracy of that outcome than in the notion that the State's failure to prove a case means that the defendant was factually innocent of the crime for which he was charged. There are certainly differences between an appellate review of a criminal conviction and the multiple ways that judges, prosecutors, and other state actors reconsider prior accusations for which no conviction was obtained. This Article will not argue otherwise. Instead, it will juxtapose the criminal justice system's reliance on accusation evidence with its intense focus on obtaining and preserving convictions. It will note that doubt about the accuracy of the outcome of a criminal case plays a much larger and more dispositive role when decision makers review cases for which a conviction was not obtained than it does in the appellate review of criminal convictions. It will then conclude that this concern shifts in relation to an overarching systemic goal: Not the search for truth, but rather obtaining and preserving findings of guilt.

Part I of this Article reviews the ways in which the criminal justice system seeks to obtain and maintain convictions. This Part will address the enormous pressures placed on defendants to plead guilty, the very small numbers of cases that actually make it to trial, an appellate process structured to discourage investigating claims of innocence and disturbing the verdict of guilt, and the adoption of the principle of finality, which holds that once a person has been convicted of a crime there should come a time when the appeals process is exhausted and the conviction can no longer be challenged in court. This...