Towards an International Right to Claim Innocence
In the past, wrongful convictions were traditionally seen as a local problem largely not deserving national or international attention. Very different legal systems shared a common approach emphasizing the finality of criminal convictions, making it very difficult to claim innocence 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 claims of innocence. Today, the procedures and underlying attitudes towards claims relying on newly discovered evidence of innocence are in flux. In this Article, I describe remarkable changes in the past few decades, driven by mounting numbers of exonerations, the development of DNA technology, the work of innocence projects initially pioneered in the United States, and a new international dialogue on research and legal methods to address wrongful convictions. Large and small countries, civil law and common law countries, and countries with very different attitudes towards criminal justice, increasingly converge in developing mechanisms to permit convicts to assert factual innocence. 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 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, the movement towards permitting claims of innocence may lead in time to an outright recognition of an international right to claim innocence, or more plausibly, a customary international law right to claim innocence in domestic courts. Whether or not an international human right to claim innocence is formally recognized, the decades to come will bring far greater international prominence to claims of innocence.