Abstract

Since 1989, post-conviction DNA testing has exonerated 162 innocent defendants. Nevertheless, few criminal cases—10-20%—have any biological evidence suitable for DNA testing, suggesting that documented DNA exonerations are just the tip of the innocence iceberg. In cases that lack biological evidence, prisoners seeking to assert their innocence often must present non-scientific "newly discovered evidence," such as recantations by trial participants, statements by previously unknown witnesses or confessions by the actual perpetrator. Without a doubt, non-DNA cases are difficult for defendants to overturn given the subjectivity involved in assessing most forms of new evidence and the absence of a method to prove innocence to a scientific certainty. This inherent difficulty, however, is exacerbated by the fact that inmates typically must resort to burdensome state court procedures that remain little-changed from their ancient British roots and that ultimately fail to provide potentially innocent defendants with adequate access to the courts. To improve such access, this Article recommends that states revamp their procedures in this area by, among other reforms, abandoning statutes of limitations, directing each submission to a judge other than the original trial judge, and adopting a de novo standard of appellate review for summary denials of innocence claims.

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