An Offer You Can't Refuse: Pleading Guilty When Innocent
![handle is hein.journals/clwqrty56 and id is 118 raw text is: An Offer You Can't Refuse:
Pleading Guilty When Innocent
Joan Brockman
1. Introduction
As an increasing number of advocates and academics focus
on wrongful convictions, a new light is being shone on pretrial
procedures. Andrew Siegel refers to the examination of pretrial
procedures for the sources of wrongful convictions as moving
down the wedge of injustice . . . [to] a third generation of
wrongful convictions scholarship and advocacy.' Siegel
provides the example of how elected prosecutors in South
Carolina have total control over the trial schedule, including
when cases are called and which judges will hear the cases. The
abuses are endless. One unintended side effect of giving
prosecutors the power to decide which trials go ahead and
which ones are adjourned is that defence counsel do not bother
preparing until the last minute. Siegel refers to these pretrial
procedures as deep structural feature[s] that operate -
outside the ken of legal, let alone public observers - to warp
the administration of criminal justice and produce wrongful
convictions.2 More recently in Canada, experts have referred
* B.A., M.A., LL.B., LL.M., professor, School of Criminology, Simon Fraser
University, Burnaby, B.C.; member of the Law Societies of Alberta and
British Columbia. An earlier version of this paper was presented to the
National Judicial Institute's Preventing Wrongful Convictions Conference,
Victoria, B.C., March 6, 2009. 1 would like to thank Gregory Simmons for
his helpful comments on this article.
1. Andrew M. Siegel, Moving Down the Wedge of Injustice: A Proposal for a
Third Generation of Wrongful Conviction and Scholarship Advocacy
(2005), 42 Am. Crim. L. Rev. 1219 at p. 1223. According to Siegel, the first
wave involved exonerations by modern science such as DNA evidence; the
second wave was the realization that factors such as false confessions,
eyewitness errors and faulty police identification procedures do result in
wrongful convictions and that they can be fixed to some extent by the
introduction of better procedures.
2. Ibid.
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An Offer You Can't Refuse: Pleading Guilty When Innocent
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