Post-Conviction Remedies for Innocence (LAWS90275)

Most countries allow some appellate or post-conviction review of criminal convictions and sentences. But these remedies vary widely in both form and effectiveness. Opportunities to challenge convictions on grounds of possible innocence, when new evidence arises, are even more disparate across countries. This intensive subject will allow students to engage in comparative study of several countries with the goal of identifying competing values at stake in the factual and legal reconsideration of past criminal convictions and sentences; considering possible distorting factors such as capital punishment, unusually long or short prison sentences, or relative judicial independence; and identifying possible best practices that may emerge from cross-cultural examination of legal systems.

The subject entails comparative study of several countries, with an opportunity for students to add one or two countries to their lists. Principal topics may include:

• The role of finality as a value in post-conviction proceedings, and competing values of accuracy and both procedural and substantive fairness,
• Procedural bars and practical obstacles to consideration of newly discovered evidence of innocence,
• Role of legal counsel and other legal officials in post-conviction proceedings,
• Relative results in post-conviction proceedings based on race, ethnicity, poverty, or other non-merits considerations,
• Consideration of the factual and legal integrity of convictions by prosecutorial government agencies,
• Emerging international reforms and safeguards for factual accuracy of convictions,
• Sources of institutional resistance to, or grassroots support, post-conviction review,
• Non-law strategies: media, public attention (e.g., Australia’s Kathleen Folbigg case),
• Confounding aspects of differing systems of administering criminal law, such as pretrial detention, use of capital punishment, public access to proceedings, comparatively harsh or lenient sentencing practises, public corruption, social instability, etc.,
• Possible identification of best practices for post-conviction review and adjustment to new evidence of innocence.