Washington Law Review


The Immortal Accusation

December 21, 2015 | 90 Wash. L. Rev. 1853

Abstract: In the American criminal justice system, accusations have eternal life. Prosecutors, judges, and prison officials regularly consider dismissed charges and even prior acquittals in the defendant’s criminal history when making decisions ranging from the filing of charges to the imposition of punishment. This Article argues that the criminal justice system’s reliance on “accusation evidence” should be understood as furthering that system’s larger allegiance to attaining and preserving findings of guilt.

Once the government obtains a guilty plea or verdict, appellate courts rarely overturn convictions based on concerns about the accuracy of the conviction; indeed, post-conviction review procedures often are structured to prevent meaningful consideration of innocence claims. Appellate courts will eventually cease reconsideration of the conviction altogether, even, in many cases, where legitimate questions about the defendant’s guilt remain. But while convictions are eventually laid to rest, accusations that do not result in convictions can be reconsidered forever, in a variety of contexts, by a variety of government actors, applying low or non-existent standards of proof. Once guilt is obtained, the system aims to preserve it; if guilt is eluded, the system will pursue it.

This Article begins by reviewing the ways in which the criminal justice system seeks to obtain and maintain convictions. It then discusses the criminal justice system’s reliance on accusation evidence, identifying how uncertainty about the defendant’s culpability in the absence of a conviction drives decision makers to reconsider that outcome and replace it with their own determinations of guilt. It goes on to contrast the systemic reconsideration of convictions with the reconsideration of charges for which no conviction was obtained, using the doctrine of finality as a comparison point. Based on this analysis, it argues that the criminal justice system is structured to obtain and preserve findings of guilt, even if doing so does not advance the pursuit of truth or the conviction of the culpable. This Article then examines the implications of the systemic dedication to the pursuit and preservation of guilt, and suggests ways in which it might, and should, be dismantled.

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