“How do you know?” and “Can you prove it?” are natural reactions to strong claims and far-fetched conjectures, especially when they are passed as universally acknowledged facts. If I were sure that journalists always followed the same principles guiding fact-gathering and interviewing, I would have more trust in media reports but even so, I would never rule out an honest error or a malicious misinterpretation of indisputable facts. A fair trial can likewise end in a wrongful conviction. Suggesting that trial courts always know better is like suggesting that journalists are always more reliable than other members of the public.
This sums up, as far as I’m concerned, the weakness of Antonin Scalia’s position on “actual” or “factual” innocence.
Prof. Kovarsky finds Scalia’s views “post-modern” because they look suspiciously relativist and don’t allow for observer-independent truth. I disagree. As a conservative Catholic, Scalia probably agreed that truth, by itself, does not depend on our mode of investigation. Not all cognitive routes, however, take us closer to the truth – some lead us away, into illusion. In addition, one needs to be on alert for signs that some of the time-tested routes are no longer reliable, and might never have been. As Kovarsky notes:
DNA evidence introduced after a trial might not satisfy demands for pure metaphysical truth, but it can be a far more reliable approximation than a criminal conviction based on other types of information.
This statement is not without its vulnerabilities but it’s a workable hypothesis.