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The Supreme Court has never resolved whether innocence is a freestanding constitutional claim. Many critics have mistakenly contended that the Court held in 1993 that innocence is not a federal constitutional claim. As a result, much of the literature has failed to recognize that the door for such claims remains open, or that relevant circumstances have changed and thus the constitutional analysis has changed as well.

In the past two decades, a consensus has emerged among states recognizing the right to judicial review of compelling claims of innocence. In the wake of DNA exonerations, the states reacted uniformly in providing petitioners with mechanisms to develop and present compelling innocence claims. Modern consensus, widely shared practice, and the doctrine of fundamental fairness now demonstrate that innocence claims fall squarely within the protections of the Eighth and Fourteenth Amendments.

The states have recognized the need to change their approach to innocence claims, but federal courts have not yet done so. In light of vast discrepancies in burdens of proof and procedural restrictions imposed by states, federal courts should establish a constitutional floor to ensure that no innocent people fall through the gaps left open by state laws. The burden for proving innocence must be informed by the understanding upon which our criminal justice system was built: innocence can rarely be proven and thus must be presumed absent proof of guilt. When new evidence eviscerates the proof of guilt, innocence must be presumed anew.

This article makes four principal contributions. First, it proposes a new analysis of innocence as a freestanding constitutional claim that has not been advanced elsewhere. Second, it corrects misconceptions regarding the Court’s holding in Herrera. Third, it catalogues the state laws and decisions that demonstrate the modern consensus among states that compelling claims of innocence require judicial review. Finally, it proposes a workable system of federal judicial review of innocence claims supported by model legislation.

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