NCJ Number
187500
Journal
American Criminal Law Review Volume: 37 Issue: 4 Dated: Fall 2000 Pages: 1363-1408
Editor(s)
Stacey E. Ostfeld
Date Published
2000
Length
46 pages
Annotation
The author explores the implications of a criminal process that punishes those who insist they have a right to an adversarial determination of guilt and/or a right to testify.
Abstract
The first two parts of the article describe current practice related to innocence versus criminal responsibility and efforts to rationalize such practice. The third part of the article considers the impact of the policy of punishing those who protest innocence on the exercise of sixth amendment rights in general and on the innocent specifically. The final part of the article discusses what kind of system may attain efficiency and accuracy in terms of dispositions if not constrained by the constitutional myth of an unimpeded right to an adversarial determination of guilt. Consideration is paid to what the response should be to those who insist on their innocence in the context of sentencing, criminal responsibility, the obstruction of justice, substantial assistance, plea bargaining, false testimony, and consequences of punishing protestations of innocence. The author concludes that the trial penalty needs to be modified since the criminal justice system cannot eliminate problems related to memory, perception, and bias, and that the testimonial penalty should be eliminated. 133 footnotes