Wrongful Convictions.pdf - Robson Hall Faculty of Law

Wrongful Convictions 29assertion detached from the Due Process Clause which contends that newevidence of factual innocence warrants relief, despite the fact that theconviction came as a result of a constitutionally secure trial. 85 Robert J.Smith, presently a Visiting Assistant Professor at DePaul UniversityCollege of Law in Chicago, quite fairly frames the issue in the UnitedStates in this fashion:[O]nce the trial is over and the prosecution has met its heavy burden, thepresumption of innocence disappears. The accused is now the convicted.Considerations other than the interests of the convicted person come into play.The need for society to obtain finality in criminal judgments, to preserve scarcejudicial resources, and to respect the judgment of other courts that decided thecase must be factored into how we treat challenges to a conviction. The questionat this stage is not whether the Constitution permits the incarceration orexecution of an innocent person. Instead, the issue is whether the Constitutionrequires a court to revise a jury determination of guilt if the prisonersubsequently demonstrates his factual innocence to some predefined degree ofcertainty. 86The US Supreme Court has been reluctant to provide post-convictionrelief on the basis of a claim to actual innocence. On three occasions overthe past 18 years, most recently in 2009, the Supreme Court has beenprepared to assume, arguendo, that there may be a constitutional right tochallenge a conviction based on “truly persuasive” evidence of “actualinnocence”. But in all three cases, the Court declined to affirm that such aright exists, effectively keeping it hypothetical in nature. 87 This state ofaffairs prompted a US judge to write an essay asking whether innocencewas even relevant any longer—rather than being, as he argued it should be,the main preoccupation of judges hearing criminal cases. 88In Canada, innocence is not just relevant; when established, it isdispositive. The approach in this country has been typically Canadian: lessdogma; more pragmatism. That takes us full circle back to the Manitoba“experiment”, and how that fits within the innocence protection85Robert J Smith, supra note 81 at 147.86Ibid at 152.87Herrera v Collins, 506 US 390 (1993); House v Bell, 547 US 518, (2006); Osborne vDistrict Attorney’s Office, 129 S Ct 2308, (2009). And see Skinner v Switzer, 562 US(2011) [slip op, p 2], 131 S Ct 1289, where the Court explained its refusal in Osborneto order post-conviction DNA testing that could establish innocence, or confirm guilt.88Henry J Friendly, “Is Innocence Irrelevant? Collateral Attack on Criminal Judgments”,38 U Chi L Rev 142 (1970).