Reliable Justice: Advancing the Twofold Aim of Establishing Guilt and Protecting the Innocent

By Acker, James R. | Albany Law Review, Spring 2019 | Go to article overview

Reliable Justice: Advancing the Twofold Aim of Establishing Guilt and Protecting the Innocent


Acker, James R., Albany Law Review


I. INTRODUCTION

Justice Sutherland instructed several decades ago that "the twofold aim of [the law] is that guilt shall not escape or innocence suffer." (1) He condemned "improper methods calculated to produce a wrongful conviction," while lauding "every legitimate means to bring about a just one." (2) Few will find reason to quarrel with these sentiments. Justice can miscarry in different ways. Other than the actual perpetrator, "everyone benefits, and no one loses when innocent parties are spared conviction and...the [true offender is] brought to justice." (3) With these modest premises at its core, this article attempts to cast a somewhat different light on the traditional domain of wrongful conviction scholarship and policy. Examining three pre-trial practices that can be critical determinants of guilt or innocence--police investigative policies, eyewitness identification procedures, and the interrogation of crime suspects (4)--it encourages broadening the focus on wrongful convictions to encompass reliable justice, a perspective grounded in the dual objectives of fairly and accurately determining both guilt and innocence. It invokes the metaphorical veil of ignorance to sketch a process designed to facilitate agreement about policies that work an appropriate balance between the objectives of bringing the guilty to justice while sparing the innocent from injustices.

Criminal justice is rife with the vocabulary and imagery of institutionalized battle. The call to arms is not subtle. War has formally been declared on crime. (5) The criminal code delineates the encampments of allies and enemies, of law-abiding citizens and offenders. (6) The police represent "the foot soldiers of an ordered society" (7) and criminals are their "quarry." (8) The rules of engagement in the courts dictate that prosecutors "may strike hard blows," although not "foul ones." (9) For their part, defense lawyers are to "champion" (10) their clients' cause so that criminal trials do not devolve into "a sacrifice of unarmed prisoners to gladiators." (11) The advocates clash in the "heat-of-battle" conducted within the adversarial system. (12) In criminal cases, "the resources of government are pitted against those of the individual," with much at stake for both sides. (13)

The adversarial alignments familiar to case-specific prosecution and adjudication can be counterproductive at the level of policy formulation, producing stalemates, unsatisfactory compromises, and outcomes that favor power over reason. (14) Reforms designed to guard against wrongful convictions naturally focus on the objective of protecting the innocent. (15) As such, they risk being construed as serving the exclusive agenda of the defense community. (16) When evaluated through the lens of adversarial justice, strategies promoted by organizations and litigants that aim to minimize wrongful convictions can almost reflexively be resisted as threatening to undermine the objective of holding the guilty accountable. (17) Conversely, staunch defenders of the innocent fall into an analogous trap when they oppose measures designed to ferret out and punish the guilty on the assumption that such initiatives must necessarily weaken safeguards against wrongful convictions. (18)

The concept of reliable justice capitalizes on a mutuality of interests. (19) Embracing more than avoiding wrongful convictions, it contemplates the accurate determination of both guilt and innocence, consistent with other shared notions of justice. (20) In truth, the diverse stakeholders in criminal justice--law enforcement, prosecutors, the defense bar, crime victims, the accused, and the public at large--have far more in common than whatever differences otherwise separate them. They stand to benefit from a process that allows commonalities of interest to overcome adversarial barriers and facilitates the crafting of policies that reliably and fairly identify criminal offenders while guarding against the arrest, prosecution, conviction, and punishment of the innocent. …

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