Probable Innocence Revisited

International audienceOften we wish to ensure that the identity of the user performing a certain action is maintained secret. This property is called anonymity. Examples of situations in which we may wish to provide anonymity include: publishing on the web, retrieving information from the web, sending a message, etc. Many protocols have been designed for this purpose, for example, Crowds [15], Onion Routing [23], the Free Haven [7], Web MIX [1] and Freenet [4]

Trust in Crowds: probabilistic behaviour in anonymity protocols

The existing analysis of the Crowds anonymity protocol assumes that a participating member is either ‘honest’ or ‘corrupted’. This paper generalises this analysis so that each member is assumed to maliciously disclose the identity of other nodes with a probability determined by her vulnerability to corruption. Within this model, the trust in a principal is defined to be the probability that she behaves honestly. We investigate the effect of such a probabilistic behaviour on the anonymity of the principals participating in the protocol, and formulate the necessary conditions to achieve ‘probable innocence’. Using these conditions, we propose a generalised Crowds-Trust protocol which uses trust information to achieves ‘probable innocence’ for principals exhibiting probabilistic behaviour

Probable innocence in the presence of independent knowledge

We analyse the Crowds anonymity protocol under the novel assumption that the attacker has independent knowledge on behavioural patterns of individual users. Under such conditions we study, reformulate and extend Reiter and Rubin's notion of probable innocence, and provide a new formalisation for it based on the concept of protocol vulnerability. Accordingly, we establish new formal relationships between protocol parameters and attackers' knowledge expressing necessary and sufficient conditions to ensure probable innocence

The Innocence Effect

Nearly all felony convictions—about 95 percent—follow guilty pleas, suggesting that plea offers are very attractive to defendants compared to trials. Some scholars argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea bargains only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial. Hence, even while heatedly disputing their desirability, both camps in the debate believe that plea bargains commonly lead innocents to plead guilty. This Article shows, however, that the belief that innocents routinely plead guilty is overstated. We provide varied empirical evidence for the hitherto neglected innocence effect, revealing that innocents are significantly less likely to accept plea offers that appear attractive to similarly situated guilty defendants. The Article further explores the psychological causes of the innocence effect and examines its implications for plea bargaining. Positively, we identify the striking cost of innocence, wherein innocents suffer harsher average sanctions than similarly situated guilty defendants. Yet our findings also show that the innocence effect directly causes an overrepresentation of the guilty among plea bargainers and an overrepresentation of the innocent among those who choose trial. In this way, the innocence effect beneficially reduces the rate of wrongful convictions—including accepted plea bargains—even when compared to a system that does not allow plea bargaining. Normatively, our analysis finds that both detractors and supporters of plea bargaining should reevaluate, if not completely reverse, their long-held positions to account for the causes and consequences of the innocence effect. The Article concludes by outlining two proposals for minimizing false convictions, better protecting the innocent, and improving the plea bargaining process altogether by accounting for the innocence effect

Using the DNA Testing of Arrestees to Reevaluate Fourth Amendment Doctrine

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment. More recently governments have enacted laws permitting or directing the taking of DNA samples from those arrested, but not yet convicted, for certain serious crimes. Courts had been far more divided about the constitutionality of DNA testing for arrestees than they were for the comparable testing of those already convicted of crimes. Given the division in the holdings among both state and federal courts and the increasing importance of DNA evidence in criminal investigations, it was hardly surprising that the Supreme Court agreed to hear a case regarding the constitutionality of a Maryland statute allowing for such testing. Section II of this article will provide a brief description of the science of DNA testing as it is used in the criminal justice system. Section III will discuss the Supreme Court\u27s decision in Maryland v. King. Section IV will address the argument of the opponents of the DNA testing of arrestees - that it violates the presumption of innocence. The chief focus of the article will appear in Sections V and VI, which will respond to the arguments posed by those who claim such testing violates the Fourth Amendment. Section V will address the balancing test for such searches and seizures long employed by the Supreme Court. Section VI describes and critiques the use of the primary purpose test as an important factor in determining whether the Fourth Amendment has been violated. This test looks to whether the primary purpose of the government\u27s search or seizure was something other than to ferret out ordinary criminal wrongdoing, and only in such situations excuses the absence of individualized suspicion

Innocence, Harmless Error, and Federal Wrongful Conviction Law

This Article examines the body of law emerging in cases brought by former criminal defendants once exonerated, often through DNA testing, which may fundamentally reshape our criminal justice system. Federal wrongful conviction actions share a novel construction - they rely on criminal procedure rights incorporated as an element in a civil rights lawsuit. During a criminal trial, remedies for violations of procedural rights are often seen as truth defeating, because they exclude evidence possibly probative of guilt. In a civil wrongful conviction action, that remedial paradigm is reversed. The exonerated defendant instead seeks to remedy government misconduct that was truth defeating and concealed evidence of innocence. This Article contends that in a civil case, the harmless error rules that limit remedies for violations of criminal procedure rights do not apply. Further, though not generally recognized as such, the Supreme Court has created internal harmless error rules to accompany each of the relevant fair trial claims: the Brady v. Maryland right to have exculpatory evidence disclosed; the right to effective assistance of counsel; the right to be free from suggestive eyewitness identification procedures; and the right not to be subject to a coerced confession. Civil claims suggest the transformative result that for each right, harmless error insulation is stripped away. This Article concludes by reflecting on how wrongful conviction suits may spearhead wide-ranging reform of our criminal justice system and renew substantive development of the constitutional right to a fair trial

The Presumption of Innocence Imperiled: The New Federal Rules of Evidence 413-415 and the Use of Other Sexual-Offense Evidence in Washington

The U.S. Congress has provisionally enacted three new federal rules of evidence (FRE). In cases of sexual assault or child molestation, FRE 413-415 allow the use, for any relevant purpose, of sexual assault or child molestation evidence not charged in the indictment or information. The new rules would operate in contravention of the traditional prohibition against using evidence of other misconduct for the purpose of proving that the defendant acted in conformity with a particular character trait on the occasion in question. This Comment surveys the arguments for and against the proposed changes. It concludes that Washington should not elect to follow this latest addition to the Federal Rules of Evidence on grounds that the new rules are too broad to fairly govern the use of such potentially prejudicial evidence. The Comment discusses less drastic changes which would improve the way in which other sexual misconduct evidence is used in Washington state courts

Unstitching Scarlet Letters?: Prosecutorial Discretion and Expungement

This Article argues that scholarly discussions about prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pretrial or questions of factual and legal guilt. Given that the primary role of the prosecutoris to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of nonconviction andconviction information. It offers a framework for exercising such discretion and, in doing so, hopes to initiate additional conversation about the role of prosecutors during the phases that follow arrest and prosecution