PUBLISHED:June 16, 2023

Duke Law Podcast | 'Closing international law's innocence gap'


Amid rising numbers of post-conviction claims of factual innocence, three Duke Law professors argue for a new international human right.

On this episode of the Duke Law Podcast, Laurence Helfer, the Harry R. Chadwick, Sr. Professor of Law; Brandon Garrett, the L. Neil Williams, Jr. Professor of Law and faculty director of the Wilson Center for Science and Justice; and Clinical Professor Jayne Huckerby, director of the Duke International Human Right Clinic, discuss important differences in the ways national criminal legal systems address post-conviction claims of factual innocence. In their new paper Closing International Law's Innocence Gap, they build a substantive case for recognizing a new international human right and detail the advantages of doing such, offering derivative and freestanding approaches, as well as a framework for adapting the right to national models.


On some of the tangible outcomes of recognizing a new human right to post-conviction claims of factual innocence:

Prof. Laurence Helfer: "The right to innocence would entail an obligation of governments to establish some kind of domestic mechanism that would enable individuals who have been convicted and sentenced to introduce fresh evidence of their factual or legal innocence, either on direct appeal or after a conviction and sentence has become final and it's a post-conviction process. That exists in many countries, but it is not clarified at all in international law. And I think international law can provide quite a bit of guidance here, in terms of what such a mechanism would look like. And in our paper, we talk about a number of the existing national models, and it was important to think through what an international standard might look like that it would incorporate those national models that we think are working well, but would also hopefully build on their successes so that there would be some convergence among national legal systems over the question of what this relief mechanism might look like. But not so much that we would constrain states in ways that go against the different ways that they've entirely structured their domestic criminal legal processes."

On the core components making up this new international human right:

Prof. Brandon Garrett: "There's a part of our article ... titled 'Draft text of a new right to claim innocence.' And maybe that was a little forward of us to actually draft a new international human right as a proposal, but we did that. We said it could be drafted concisely as follows, and it's pretty concise. After a person has, by a final decision, been convicted of a criminal offense, the person shall have the right to seek relief from that conviction, including on the ground that newly discovered evidence of innocence shows that the conviction lacks factual support. So basically, right, if you've been convicted, you can bring up new evidence of innocence and factual innocence, specifically. And so our focus is on a factual innocence. There may be other concepts of innocence that relate to other types of legal errors and the like with convictions. There's more of an understanding that those types of legal errors, for example, can be asserted during traditional appeals. It's the new facts which have created so many problems around the world because the idea that you could have new facts really shook systems like we were describing earlier."

A closer look at key objections to this new international human right:

Prof. Jayne Huckerby: "We looked at the ways in which concerns about devaluing human rights, or complicating compliance, or creating new conflicts between rights, may or may not eventuate with regard to a new right to claim innocence. And what was really interesting and getting into that analysis of the core generic objections to so-called rights inflation or hypertrophy, is that when you apply it to the particular circumstance of the right to claim innocence, many of those concerns didn't have a lot of purchase. So for example, with the right to claim innocence being a right that has been widely recognized in domestic jurisdictions, all range of the concerns around creating partisan positions or new conflicts between human rights, or overburdening machinery at the global level, didn't really play out with regard to this particular right. ... Many of the questions around obstacles and benefits also turn, to some degree, on what pathway is utilized to recognize a new human right to claim innocence. And as Professor Helfer foreshadowed, there are essentially two pathways under international law for recognition, the first of which is the derivative pathway, which as the name would imply, enables us to read protections from existing rights guarantees. And the other approach to a pathway is a pathway toward standalone or freestanding recognition, which is a bit more complicated. It requires applying quality control criteria, that in essence require that a new right be consistent with existing rights, fundamental, precise, enforceable, and that it also enjoy broad international support."


  • The Duke Law Podcast is a monthly podcast produced during the fall and spring semesters at Duke University School of Law. Click here to view other podcasts produced at Duke Law.