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Abstract

This article confirms the existence of these legal process-centric themes and considers some potential implications of these approaches. Part I briefly sets out key tenets of the legal process vision and provides some back- ground to the American Innocence Movement. Using examples from relevant case law, Part II examines the courts’ approaches thematically, demonstrating how the courts exhibit loyalty to the legal process vision. It also considers the implications of this loyalty, including that it can result in both the extraction of science from its social context and an awkward approach towards discerning between credible and incredible forensic science evidence of individualization, as well as represent a failure, by the courts, to acknowledge the corrective justice function afforded to clemency by the common law. Part III concludes that these approaches to judicial decision-making ultimately fail to accept the way in which new and credible evidence – particularly forensic science evidence – can cast legitimate doubt on the verdict of a trial or, indeed, impact the proceedings of a clemency board, “quite apart from any procedural defect.” In light of the American Innocence Movement, the courts’ largely unreserved fidelity to the legal process vision, in the context explored, is troublesome, and warrants new approaches that are more sensitive to substantive accuracy.

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