Given That We Know We Sometimes Convict Innocent People, What, If Anything, Does That Say About the Death Penalty?: The Death Penalty In A World Where the Innocent are Sometimes Convicted Skip over navigation
LexisNexis® Browse Law Reviews and Treatises
Skip over navigation
Sign in with your lexis.com® ID to access the full text of this article.
-OR-
Order the full text of this article if you do not have a lexis.com® ID.
 
Price: 
US $22.00 (+ tax)
 
 

Copyright (c) 2008 Texas Tech University School of Law
Texas Tech Law Review

Given That We Know We Sometimes Convict Innocent People, What, If Anything, Does That Say About the Death Penalty?: The Death Penalty In A World Where the Innocent are Sometimes Convicted

Fall, 2008

Texas Tech Law Review

41 Tex. Tech L. Rev. 187

Author

Arnold H. Loewy*

Excerpt



Four score and five years ago, 1 Judge Learned Hand, in a single paragraph, penned two of the most unlearned-or at least grievously incorrect- statements of his career:



Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve. . . . Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime. 2



Any belief that the defendant has the advantage in a criminal trial is belied by the fact that the State may conduct searches and seizures (albeit reasonable ones), obtain confessions by incessant questioning (albeit consistent with the privilege against self-incrimination and Miranda), and make deals with incarcerated or potentially incarcerated witnesses if, but only if, the witness tells the story the State wants to hear. 3 Furthermore, the State, and only the State, can grant immunity in exchange for testimony. 4



Hand also overstated the defendant's advantages. While it is formally true that the State must prove its case beyond a reasonable doubt, and that ...
 
 
If you are interested in obtaining a lexis.com® ID and Password, please contact us at 1-(800)-227-4908 or visit us at http://www.lexisnexis.com/.
Search Documents
 
eg., Environmental Insurance Coverage Under the Comprehensive General Liability Policy
 
 
 
 

Lexis® Web - The only search engine that delivers free web content specifically from legal sites validated by LexisNexis® attorney editors and includes tools for faster research and more relevant results.

 
LexisNexis Store
Research Now - Go to lexis.com
Connect the Dots - Free 1 hour webcast
Share. Network. Discover. - Go to LexisNexis Communities