The Plea of Innocence: Restoring Truth to the American Justice System

by Tim Bakken

Overview

Proposes groundbreaking, fundamental reform for the adversarial legal system to keep innocent people from going to prison

We rely on the adversarial legal system to hold offenders accountable, ensure everyone is playing by the same rules, and keep our streets safe. Unfortunately, a grave condition lingers under the surface: at all times the imprisonment of possibly tens of thousands of innocent people.

The Plea of Innocence offers a fundamental reform of the adversarial system: plausibly innocent people may now plead innocent and require the government to search for exonerating facts; in return, they will be required to waive their right to remain silent, speak to government agents, and participate in a search for truth.

While almost all the participants within the system hope that only guilty people will be convicted, the unfortunate reality is that innocent people are convicted and imprisoned at an alarming rate. With the privatization of defense institutions, accused innocent people are themselves responsible for finding the facts that could exonerate them. Though the poor are represented by public defenders—in fact, almost no one who is charged with a crime has enough money to pay for a complete defense—it is still accused people, not public officials, who bear the entire burden of proving their innocence.

Tim Bakken believes that reform of the three-hundred-year-old adversarial system is long overdue, and that the government should be responsible for searching for truth—exonerating facts for innocent people—rather than being satisfied with due process. While it is improbable that all the facts in any case will ever be known, the essential point is that the acquisition of facts will almost always benefit an innocent person who has been accused of a crime. Featuring compelling evidence and concrete steps for reform, The Plea of Innocence is at once sensible and revolutionary, a must-read for anyone invested in restoring truth to the justice system.

Product Details

ISBN-13:	9781479817139
Publisher:	New York University Press
Publication date:	10/04/2022
Sold by:	Barnes & Noble
Format:	eBook
File size:	581 KB

About the Author

Tim Bakken is the first civilian promoted to Professor of Law at West Point, the United States Military Academy. He practiced law in New York City, including as a prosecutor in Brooklyn (Kings County District Attorney’s office). His most recent book is The Cost of Loyalty: Dishonesty, Hubris, and Failure in the U.S. Military.

Table of Contents

Introduction: The Importance of Facts 1

Part I Why Innocent People Are Convicted

1 Human Error 13

2 Devaluation of Freedom 26

3 Defense of Falsity 37

4 Emergence and Glory of Adversarial Combat 53

5 Alone with No Evidence 67

Part II A Deficient Adversarial System

6 Convictions without Truth 81

7 The Lost Dialectic 95

8 Trials without Facts 102

9 Procedures over Evidence 109

Part III Obtaining Correct Verdicts

10 Neutral Investigations 125

11 A New Procedure: The Search for Truth 132

Conclusion: The Plea of Innocence 153

Acknowledgments 197

Notes 199

Index 227

About the Author 239

Editorial Reviews

"Worthy of full consideration by legal scholars and anyone with an interest in justice for those who are innocent."

Ros Burnett

"A timely and important contribution. As calls for reforming the justice system increasingly enter into the public sphere, Bakken offers a compelling path forward, one that is both possible and revolutionary."

Marvin Zalman

"Featuring compelling analysis and exceptional scholarship, The Plea of Innocence illustrates how the justice system can be revised to protect innocent people from conviction. Few books could be more important or timely."

Brian Levin

"Remarkable and convincing. The book is well-written, thoroughly researched and enjoyable to read. It is a rethinking of the criminal law that everyone involved in the criminal justice system should read and contemplate."

The Lawyer's Daily - John Hill

"We can learn much by seeing our familiar world anew, from the outside. This book uses the outsider’s vantage point to good effect, mixing familiar criticisms of common law adversarial process with original ideas for procedures to address those problems. Bakken’s proposals would promote accurate factfinding above competing values, such as respect for privacy and defendant autonomy, favored by current doctrine."

Criminal Law and Criminal Justice Books

"Bakken proposes an innovative device to move our courts in that direction: a “plea of innocence” from the defendant . . . . Bakken begins his advocacy for this creative device by describing the various ways that criminal procedure doctrine in the U.S. tolerates lies and secrecy . . . . [His] proposals would promote accurate factfinding above competing values, such as respect for privacy and defendant autonomy, favored by current doctrine."

Criminal Law and Justice Books

"The proposal is an interesting one . . . . provocative . . . . a number of strong claims . . . . valuable observations."

The Wrongful Conviction Law Review

07/01/2022

Would a search for the truth fix the criminal justice system? That is the view of legal scholar Bakken (law, West Point; The Cost of Loyalty: Dishonesty, Hubris, and Failure in the U.S. Military). The author decries the adversarial system of American justice because it is rife with errors and tilts toward those with resources. DNA evidence, which is relatively scarce, isn't the answer. Instead, he favors a plea of innocence, after which the prosecution and defense would cooperate to find exonerating evidence. This would include a requirement that the defendant openly discuss the case. A defendant would have to make a plausible claim to such a plea. The book cites the approach of continental Europe, in which a magistrate makes an impartial review of whether a case should proceed. Some of the same points are made in Judge Jed Rakoff's Why the Innocent Plead Guilty and the Guilty Go Free, a more accessible introduction to this topic. Left unsaid in the book is whether better training for police or more levels of review of proposed prosecutions would reduce false convictions. VERDICT The slim book is well written, but academic in tone. Professional audiences will appreciate this deep dive into the theory of criminal prosecutions.—Harry Charles

Library Journal