How about a plea of innocence? | John L. Hill

By John L. Hill

Law360 Canada (October 3, 2022, 1:38 PM EDT) --
John Hill
John L. Hill
Do you remember when you were told about Santa Claus, the Tooth Fairy or the Easter Bunny? We all live with secrets and then discover answers later on in life. Sometimes these answers shock us. Sometimes they allow us to carry on better. Maybe it is better if we dispel the myths we have accepted as certain and learn to live in a society where truth prevails.

In a remarkable and convincing manner, author Tim Bakken holds that our justice systems have amassed flaws that do not fully protect the innocent. After finishing The Plea of Innocence: Restoring Truth to the American Justice System (New York University Press), one cannot help be left with a sense of disbelief that we have tricked ourselves into believing in a fantasy that our justice system has evolved into a system where the guilty will be punished, and the innocent will be exonerated.

Bakken holds a mirror up to our judicial practices and helps us realize that we are not seeing an accurate reflection. Rather what he portrays, and what we have accepted as a fair judicial system, is in fact a distortion of reality where the innocent can be and are convicted despite, and maybe because of, the procedures put in place to make the system operational.

The Plea of Innocence begins with the premise that our justice system pretends to be a search for truth. However, the adversarial legal system, and its investigative procedures and rules of evidence that have emerged over the past 300 years should be seen as a tumble-down house badly in need of renovation. Although it is our intention that only guilty people will be convicted, there is ample evidence that the system is not working.

Bakken lays the fault at the feet of a system where accused innocent people are responsible for finding the facts that can exonerate them. The overwhelming resources of the state are no match for a privatized defence system where virtually no one can match the investigative abilities of a force whose aim is to seek out guilt. It is the private person, not the state who bears the entire burden looking for exonerating facts in an attempt to proving one’s innocence.

Maybe there is a better way. Bakken argues that our current system with its plea of “not guilty,” is too vulnerable to human error to serve true justice. He lists a litany of pitfalls that can, and do, lead to wrongful convictions: mistaken eyewitnesses, police error, a bad defence or prosecution, or the implicit bias of a jury. Sometimes innocent people plead guilty “just to get it over with” or accept a shorter sentence in face of a more intolerable outcome. The book vividly illustrates that human error is pervasive and largely ignored by current judicial practices. Maybe the solution is to remould our practices where instead of a plea of “not guilty,” an accused could enter a plea of “innocent.”

The change sounds simple but would require an enormous overhaul of the system where every facet of the investigation would be a search for truth. This would involve not only the accused personally but the entire apparatus of the state. Resources that were once used to forcing confessions would now operate to enlighten a court with facts that are demonstrable. It would also require changes in defence ethics where there would be reliance on all parties not to bury the truth.

But there would be costs: people accused of crime would be required to waive their right to remain silent, speak to government agents and participate in a search for truth. The solution may not be perfect, but it would lead to fewer wrongful convictions than our system now permits.

The book focuses on the United States but the bulk of the examples and practices have their equivalent in Canada. 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.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

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