Brandon L. Garrett

Towards an International Right to Claim Innocence

In the past, wrongful convictions were seen as a local problem largely undeserving of national or international attention. Very different legal systems have shared a common approach of emphasizing the finality of criminal convictions, thereby making it very difficult to claim innocence by relying on new evidence uncovered post-trial. While international law guarantees a right to a fair trial, a presumption of innocence, and a right to appeal, no international human rights norms clearly obligate countries to allow defendants to meaningfully assert post-trial claims of innocence. Today, the procedures and attitudes toward claims of innocence that rely on newly discovered evidence are in flux as more countries have adopted broader remedies for convicts to claim innocence.

In this Essay, I describe the remarkable changes that have taken place in the past few decades, driven by a mounting number of exonerations, the development of DNA technology, the work of innocence projects, and a new international dialogue on research and legal methods to address wrongful convictions. Large and small countries, civil and common law countries, and countries with very different attitudes towards criminal justice have increasingly developed mechanisms to permit convicted individuals to assert factual innocence. Countries draw from each other’s legal standards, strategies, and responses to wrongful convictions. Countries now permit innocence-based challenges under various procedural labels, ranging from the writ of habeas corpus, amparo de libertad, revision, or other statutory or administrative remedies. In turn, international bodies have relaxed concerns with finality and opened the door to the broader use of innocence claims, if not recognizing a freestanding right to make use of them.

In a time of growing convergence and comparison of criminal procedure approaches between countries, the movement towards permitting claims of innocence may lead to recognition of an international right to claim innocence or, more plausibly, a customary international law right to claim innocence in domestic courts. This could further incentivize the international development of claims of innocence and the adoption of remedies for wrongful convictions around the world.

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