Lara A. Bazelon


Inspired by the Innocence Movement, the American Bar Association has placed an unprecedented new obligation on defense counsel in the form of an “Innocence Standard.” This new rule imposes an affirmative “duty to act” upon criminal defense attorneys who learn of newly discovered evidence that a former client may be innocent.

The new Standard, while well-intentioned, reconceives the traditional defense attorney function, creating an ethical parity between prosecutors and defense attorneys in wrongful conviction cases while overlooking the fact that the two sides play distinct and incompatible roles in our adversarial system. While prosecutors must to seek the truth and administer justice, defense counsel’s obligation is to zealously defend her current client. The Innocence Standard has the unintended effect of potentially destabilizing that primary and paramount relationship. It may require counsel to place the interests of a former client above those of a current client. It may expose counsel to allegations of ineffective assistance in the representation of the former client. And, perhaps most importantly, it may require labor-intensive, complex work that will draw scarce resources away from current clients because most defense attorneys are already under-resourced and staggering under excessive caseloads.

In an ideal world, every defense attorney would embrace the work of freeing a wrongfully convicted former client, but in the real world, is it practicable to demand that they do so and fair to suggest that they are unethical if they do not?

This Article—the first scholarship to discuss the Innocence Standard— examines how the innocence movement’s influential emphasis on accuracy may be eroding other important values and aims served by the adversarial process. The Innocence Standard asks defense counsel to serve two masters, her client and the truth. The creation of this dual obligation conflicts with centuries of defense tradition and decades of well-established doctrine. The truth-seeking function has traditionally rested with prosecutors, judges, and juries; defense counsel’s primary obligation has always been to zealously represent her present-day client. Shifting the truth-seeking burden onto defense counsel after her representation of a client has ended threatens to erode the adversarial system, the historical loyalties of defense counsel, and the meaning of zealous advocacy.