Pleading "Innocent"? Implications for Adversarial Criminal Procedure

Wrongful convictions are difficult to overturn due to the pressure for finality in criminal trials. They appear to be more common in the United States than in Scotland. They have a variety of causes, but much of the dissatisfaction in the United States has focused on the adversarial nature of the criminal process. This has led to proposals for alternative procedures for those who do not simply rely upon the presumption of innocence and the standard of proof, and plead “not guilty”, but positively assert that they are in fact “innocent”. The reform proposals include enhanced pre-trial processes, more active judicial involvement in the trial, and removal of the right of silence, much of which reflects a more inquisitorial approach, similar to that employed in many continental European jurisdictions. This article briefly considers the nature of “innocence” in a criminal context. It then reviews a number of the “actual innocence” reform proposals, and compares key features of criminal procedure in the United States with those which operate in Scotland – a jurisdiction which has not, to date, experienced an “innocence crisis”. The article concludes that various features of Scottish criminal procedure render “actual innocence” devices unnecessary and tend to explain why wrongful convictions appear to be rarer in Scotland than in the United States.