Professor Of Criminal Justice, Wayne State University
- The standard list of wrongful conviction causes does not capture all the ways that justice can miscarry; trial processes may have generated or allowed wrongful convictions.
- Contrary to common stereotype, criminal procedure strictly enforces defendants’ rights.
- The new generation of trial reform thinking diverges from past efforts because of a new awareness that convicting the innocent is an everyday reality in our courts.
In the article, “Reinventing the Trial: The Innocence Revolution and Proposals to Modify the American Criminal Trial,” Zalman and Gruenwald posit that the standard list of wrongful conviction causes does not capture all the ways that justice can miscarry and that trial processes may have generated or allowed for wrongful convictions. In an effort to identify ways that justice may be miscarried and improvements that may be made to the trial process, the authors examine five law review articles that propose modifications to pretrial and trial procedures designed to reduce wrongful convictions. The articles, written by legal scholars D. Michael Risinger, Tim Bakken, Samuel Gross, Keith Findley and Christopher Slobogin, are compared and evaluated by Zalman and Gruenwald for their novelty, feasibility, complexity, likely impact and possible negative and positive side effects. The authors examined the differences and similarities in each article, and particularly looked at trial procedure, the role of the jury, control of the judge, the role of lawyers, police investigations, innocence pleas, defendants’ rights, evidence and trial practice rules, control of expert witnesses, discovery, plea bargaining, sentencing and appeals. Zalman and Gruenwald note that the new generation of trial reform thinking diverges from past efforts because of a new awareness that convicting the innocent is an everyday reality in our courts. To that end, the authors recommend reforms in plea bargaining by urging consideration of proposals that require open discovery; modify the prosecutor’s role; give judges more authority to probe the facts of the case; require judges to produce a fact summary; and reverse rules that bar judges from discussing cases with the attorneys. Additionally, Zalman and Gruenwald suggest allowing defendants to request further criminal investigation, as permitted in France and Germany, where re-investigation may divulge evidence of factual innocence.