This essay argues that—while the notion of “innocence” does indeed mean factual innocence, in the sense that the defendant committed no crime—to demand certainty is to demand the impossible, and that, in the end, the best we can or should do is rely on the legal standards that define guilt and, absent proof of guilt, presume innocence. Anything less than that invites endless controversy about subjective assessments of guilt and innocence, unwarranted insult and injury to the innocent who are forced to live under a continuing cloud of suspicion, and erosion of some of our most fundamental constitutional principles. The standard definition of “exoneration” in the scholarly literature usually includes all cases in which a conviction was vacated based, in part, on evidence of innocence, by a court or executive, followed by no new trial or an acquittal at retrial. Because that definition does not perfectly define who is factually innocent, (it can be both under-inclusive and over-inclusive), that definition is often considered different than the definition of “innocence.” This essay argues, however, that because our access to truth is imperfect, that definition is the only workable one we have for both “exoneration” and “innocence.” And because of variability between differing contexts and jurisdictions, this essay observes that there are multiple standards governing how much proof of innocence is required for exoneration, and hence for determining who is factually innocent.
This is not to say that innocent individuals in prison who have not been exonerated cannot be permitted to continue to claim innocence. Rather, this is an argument that, while objective truth is always important, it is ultimately always ambiguous in a world with imperfect knowledge. Thus, when we “officially” label people as “innocent” we have to use the legal definition; that legal definition is both necessary and sufficient. Convicted but factually innocent people can continue to claim to be innocent, and they should do so if they are in fact innocent. Their advocates can assert innocence on their behalf, in an effort to overturn their convictions. But until a court or executive makes a determination, that assertion is largely meaningless and unverifiable. By the same token, once a court or executive does vacate a conviction based on evidence of innocence, unless and until the person is convicted again, claims that the person is actually guilty are also meaningless, and indeed inappropriate from prosecutors who, having failed to prove guilt, have a duty to respect the constitutional presumption of innocence.