The Attorneys Are Bound and the Witnesses Are Gagged: State Limits on Post-conviction Investigation in Criminal Cases

Abstract

This Article is the first to take a comprehensive look at the ways in which State actors restrict post-conviction investigations in criminal cases, especially capital cases. By examining these restrictions in the context of interviews with jurors, victims, and State witnesses, this Article reveals that they harm criminal defendants and fail to achieve stated policy goals. The Article then examines why traditional legal arguments against these restrictions have failed, and ultimately makes the case for a constitutional right to investigate state post-conviction proceedings, grounded in the fundamental fairness prong of the Due Process Clause.

Keywords: post-conviction, habeas, collateral appeal, due process, jury, jurors, victims, death penalty, capital punishment, investigation, mitigation, interview, state interference, limitations, barriers