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Unpublished Paper
Innocent Until Presumed Guilty: Verdicts, Habeas Corpus Law, and Newly Discovered Evidence
ExpressO (2011)
  • Richard A Burton, Jr, University of Michigan Law School
It may seem uncontroversial that our law should prevent the execution of an innocent person. There are ‘constitutional safeguards’ in place that maintain this principle, but these safeguards apply to pre-convicted persons – those presumed innocent – through the avoidance of wrongful conviction. Once the conviction is handed down, the safeguards fundamentally change. This is equally true for the most troubling cases in which newly discovered evidence demonstrably proves the factual innocence of a defendant but is discovered post-conviction. Despite the available evidence, such persons do not enjoy constitutional safeguards that prohibit their execution based on their factual innocence. In 2009 the Supreme Court took a step towards establishing federal habeas law as a “capital safety valve” for the demonstrably wrongly convicted. The Court allowed a defendant to appeal his state conviction based on factual evidence and a claim of ‘actual innocence.’ I argue that despite attempts, post-conviction habeas relief for factual claims will necessarily remain limited. Speech act theory and the Toulmin model of arguments show how factual evidence and claims of actual innocence are conceptually incompatible with most post-conviction discourse and procedure. This incompatibility results from 1) an inherent tension between the performative and descriptive functions of verdicts as well as 2) the ambiguity of proof standards which creates uncertainty of established truth values.
Publication Date
September 18, 2011
Citation Information
Richard A Burton. "Innocent Until Presumed Guilty: Verdicts, Habeas Corpus Law, and Newly Discovered Evidence" ExpressO (2011)
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