Prosecutors Want Changes to Innocence Inquiry Commission

in Criminal Defense, on

The North Carolina General Assembly will once again grapple with issues surrounding the Innocence Inquiry Commission when the session starts in May. Prosecutors told a House judiciary subcommittee last week that they wanted concessions beyond what they agreed to in 2011. Proponents of the commission and criminal defense attorneys were surprised to hear that prosecutors did not believe the 2011 compromise bill put some issues to rest.

As we have discussed in past posts, the commission is the first of its kind in the country. Any felon may submit a claim of factual innocence to the commission. The commission then reviews the claim and determines if the claim should move forward to a panel of judges. The review process may include a fact-finding session at which the claimant and witnesses may testify.

That hearing is the target of one proposal prosecutors plan to pursue. District attorneys would like to be able to cross-examine witnesses and offer rebuttal testimony at these hearings. Advocates and members of the defense bar maintain that the commission hearing is a fact-finding session, not a trial. The prosecution may cross-examine and offer its own testimony if the case goes to the three-judge panel.

Witnesses at commission hearings may be recanting testimony they offered at the claimant’s original trial. The current law does not automatically shield these witnesses from perjury charges. If the commission believes the witness will only testify if charges are off the table, the commission is allowed to ask a judge to grant limited immunity. The commission has done so just once so far, and that request was denied. If a witness lies to the commission, perjury charges may be filed.

Prosecutors want the right to charge witnesses with perjury if they recant their original testimony. This provision was part of the original bill backed by the prosecutors’ conference last year.

Another proposal, also from the original bill, is to change the burden of proof for defendants’ claims in front of the judicial panel from “clear and convincing” to “beyond a reasonable doubt.” Defense counsel argue that the latter standard, the toughest of all burdens of proof, is appropriate in front of a jury but not a panel of judges. A jury does not know the law, but judges do.

Source: News & Observer, “N.C. prosecutors want more bill concessions,” Craig Jarvis, Feb. 17, 2012