Certainty vs. Finality: Constitutional Rights to Postconviction DNA Testing

It is better that ten guilty persons escape, than that one innocent suffer. No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation. Introduction At least in theory, the American criminal justice system is designed to ensure that innocent men and women are not wrongfully convicted for crimes that they did not commit. Constitutional and procedural safeguards abound. American citizens enjoy the right to a jury trial, the right to remain silent upon questioning by the state, the right to legal counsel, the right to examine all of the state's evidence before trial, the right to cross-examine opposing witnesses, as well as an overarching right to due process. Convicted prisoners also have the right to challenge a conviction if any constitutional rights were denied during trial, and also to seek clemency from the executive authority of the jurisdiction in which they were convicted. Despite these safeguards, defense lawyers and civil liberties advocates have been arguing for years that the American legal system is in fact fundamentally unfair and unjust. Because of power and resource imbalances, federal and state prosecutors win convictions against individuals who did not commit the crimes for which they were on trial. As a result, thousands of actually innocent people may be languishing in prisons and death rows around the country 224 In the past, such claims were difficult to prove, primarily because of the degradation of evidence, both physical and eyewitness, and the fundamental belief in the correctness of legal decision making (Bedau and Radelet 1987; Berger 2004). However, forensic DNA analysis is increasingly being used in postconviction litigation to prove that innocent people have been wrongfully incarcerated (Scheck, Neufeld, and Dwyer 2000). More than a decade and more than 250 exonerations later, 1 the Innocence Project at the Cardozo School of Law in New York City and its sister organizations have created a moment in which long-held assumptions about the fairness and efficacy of our criminal justice system are being called into question (Aronson and Cole 2009; Berger 2004). Still, the decisions of our criminal courts are considered to be final unless a defendant's constitutional rights were violated at trial. In a landmark 1993 case, Herrera v. Collins, the Supreme Court ruled …