Leonetti's Innocence Checklist Model
In 2021, Professor Carrie Leonetti published, “The Innocence Checklist” 1 as part of her
exploration of the complexities and obstacles to defining “innocence” in the criminal justice
context. (Leonetti, 2021). As part of her analysis, Leonetti suggested creating a 27-point checklist as a predictive model for identifying wrongful convictions. The factors are all based upon determined factors
that correlate strongly with wrongful conviction, including: (1) known causes of wrongful
conviction divined from official exonerations and based on innocence-project representation,
prosecutorial conviction-integrity unit reviews, and innocence-commission exonerations; and (2)
factors that courts have repeatedly recognized play a role in wrongful convictions because they
involve procedural injustices so severe that they call into question not only the fairness but the
accuracy of convictions secured as a result. The Commission finds the factors applicable and
helpful in understanding both the complexities of current wrongful conviction cases addressed as
part of the Commission’s mission, as well as wrongful convictions generally, as we as a society
move beyond DNA as a definitive factor in assessing “innocence.”
A. Factors
Cluster I: Government Misconduct
(1) Prosecutorial Disclosure: failure of prosecutors to divulge favorable evidence, regardless of
whether such failure meets the doctrinal test of Brady. If suppression is unintentional, it should
count as a factor in favor of wrongful conviction when the withheld information is reasonably
likely to relate to the accuracy of the trial. If suppression is intentional, it should count as a factor
in favor of wrongful conviction irrelevant of the likelihood that the withheld information relates
to the accuracy of the trial.
(2) False Evidence: prosecutorial presentation of materially false evidence, regardless of the state
of mind of the prosecutor who examined the witness.
(3) Coaching: inappropriate preparation of prosecutorial witnesses.
(4) Witness Hiding: intentionally securing the unavailability of defense witnesses.
(5) Deficient Defense: failure of defense counsel to investigate or develop potentially viable
defenses, especially alibi claims, including failure to retain scientific experts to test, retest, or
challenge questionable prosecution forensic-science evidence, regardless of whether such failure
meets the doctrinal test of Strickland.
(6) Forensic Misconduct: intentional misconduct or gross negligence by forensic analysts or the
crime laboratory that processed evidence during the time period that evidence relating to the
defendant’s case was processed (e.g., “dry labbing” or undetected contamination), regardless of
whether there is evidence that items specifically relating to the defendant’s case were
contaminated or misprocessed, particularly if the misconduct was not discovered promptly
through laboratory audit procedures.
(7) Police Misconduct: police misconduct or gross negligence either during investigation of the
defendant’s case or a pattern of misconduct across cases that could include the defendant’s, such
as lost or destroyed evidence; material record-keeping omissions; coercing or inducing
confessions, even if inducements do not rise to the level of a constitutional violation (e.g., lying
to a suspect about evidence); inducing false testimony; or intentionally withholding information
from prosecutors.
Cluster II: Material New Evidence
(8) Reasonable Doubt: discovery of evidence unknown at the time of trial (regardless of whether
it could have been discovered through due diligence), the presence of which now creates a
plausible theory under which the defendant could be innocent or is reasonably likely to cause a
reasonable, disinterested person to harbor a reasonable doubt about guilt.
(9) Alternate Suspect: evidence tending to inculpate a suspect other than the defendant, including
a DNA match from crucial biological evidence to any individual other than the defendant from
an item of material crime-scene evidence (even if such a match is not conclusively exculpatory);
confessions or incriminating admissions by alternate suspects; video footage or other electronic
surveillance records documenting the presence of an alternate suspect at the time of the crime; or
identification by a witness of someone other than the defendant as the perpetrator.
(10) New Science: the existence of scientific evidence that either was not available or was
available but not performed prior to trial, the favorable results of which are likely to exculpate
the defendant.
(11) Presence: evidence casting doubt on the defendant’s presence or ability to be present at the
scene of the crime.
(12) Diminished Mental Capacity: the presence of a serious mental illness or intellectual
disability in the defendant prior to and/or during trial, including one that derived from youth,
immaturity, and lack of formal education, regardless of whether such illness or disability was
known to the court or defense counsel at trial or whether such illness or disability rendered the
defendant incompetent to stand trial under Dusky v. United States.
(13) Recantations: recantation or subsequent statement(s) that is (are) materially inconsistent
with trial testimony by significant prosecution witnesses.
(14) Impeachment: new information discrediting a key prosecution witness’s ability to observe,
recall, or recount the subject matter of their testimony accurately or truthfully, including physical
or mental health issues.
(15) Incentives: benefits given or promises or threats made to significant prosecution witnesses,
including leniency in their own criminal cases.
(16) Changing Science: a significant change in the state of prosecutorial expert evidence,
including a change in the consensus of experts in a field about the significance or interpretation
of results. This factor should apply to any case in which the evidence, now known to be unreliable, was presented, including expert testimony that a fire was arson based on burn
patterns, testimony that a hair taken from the defendant matched a hair taken from the crime
scene based on microscopic comparison, testimony that bitemarks found on a victim or at a
crime scene matched the defendant’s bite, hypnotically induced testimony, or testimony that a
baby’s death was caused by violent shaking based on shaken-baby syndrome.
(17) Biased or Unvalidated Scientific Evidence: forensic analyses that were obtained in the
context of unnecessary biasing information and forensic-science testimony that was inaccurate,
misleading, or oversold, regardless of the good/bad faith of the analyst.
(18) Corroboration: material evidence significantly corroborating the defendant’s contested
testimony or theory of the case.
(19) Maintenance of Innocence: the defendant’s consistent, explicit, personal maintenance of
innocence.
Cluster III: Government Negligence and Other Forms of Misconduct
(20) Missing or Inadequate Corroboration: absence of physical evidence to corroborate crucial
witness testimony or a defendant’s confession under circumstances in which such corroborating
evidence would reasonably be expected to exist and be obtainable.
(21) Unreliable Eyewitness Identification: introduction at trial of a stranger eye-witness
identification of the defendant when that identification either (a) was obtained from procedures
proven to be suggestive by social science evidence, regardless of whether such procedure has
been deemed unnecessarily suggestive as a matter of constitutional or common law and
regardless of whether evidence relating to the lack of reliability of the procedure was introduced
at trial (defense expert testimony, cross-examination, or closing argument) or (b) was not
significantly corroborated by other evidence, under circumstances in which such corroborating
evidence would reasonably be expected to exist.
(22) Questionable Confessions: introduction at trial of the defendant’s confession or substantial
inculpatory admissions that were obtained through coercive interrogation techniques like the
Reid method of interrogation; confessions obtained from highly vulnerable suspects; confessions
obtained after prolonged detention, isolation, when the suspect was sleep deprived, or in
response to evidence ploys and other misrepresentations; and confessions obtained without
video-taping or other recording.
(23) Inconsistent Theories: use by prosecutors of a theory of the defendant’s case inconsistent
with the prosecution theory in another closely related case.
(24) Police Corruption: compelling evidence that law-enforcement agents who investigated the
defendant’s case engaged in corrupt conduct during the course of another investigation (e.g.,
stealing or intentionally “misplacing” evidence, planting evidence, giving or accepting bribes,
providing “protection” to criminal syndicates, frequenting sex workers, using illicit drugs,
knowingly violating the constitutional rights of suspects, or “testilying”).
(25) Snitch Testimony: material testimony of an incentivized informant or wit-ness cooperating
in exchange for a material benefit, regardless of whether any incentive for cooperation was
disclosed to the defense prior to trial or introduced in evidence.
(26) Inconsistent Witnesses: prosecutorial introduction of testimony from two or more witnesses
whose testimony is materially inconsistent with one another.
(27) Pretrial Publicity: sensationalized media coverage of the case prior to trial, particularly if it
involved commentary by prosecutors or police officers about the defendant’s prior criminal
record, character, credibility, reputation, or inculpatory statements; physical evidence; the
testimony, criminal record, character, reputation, or credibility of witnesses, including the victim;
or evidence that was ruled inadmissible at trial.
References:
Carrie Leonetti, “The Innocence Checklist,” 58 American Criminal Law Review 97 (2021).
