Safety in Post-Conviction Proceedings, 51 J. Marshall L. Rev. 773 (2018)

It is extremely difficult to correct an error after conviction.Given the Hidden Accidents Principle in criminal law, it is very hard to uncover mistakes and even harder to prove them. Time is one of the greatest enemies of reconstructing the truth. Evidence gets lost, potential witnesses forget, move away, or die. The legal rules, including the finality of verdicts rule, hinder the rectification of miscarriages of justice.

Another factor is that once the indictment has been made, the police usually close their investigation. Even when the appellate court finds a defect in the original trial proceedings, it will most likely be deemed “harmless error.” Thus, the finality of proceedings rule in fact already applies with the handing down of the verdict at trial, even before appeal. The main procedural mechanism intended for correcting miscarriages of justice is a motion for a new trial. But this mechanism is not effective.

Since safety theory and safety measures are not yet developed in the criminal justice system, we have to learn it from other areas, such as aviation, transportation and engineering. In order to bring SAFETY to post-conviction proceedings, this essay offers some safety measures.