The Volokh Conspiracy

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Cato podcast on Nelson v. Colorado and the presumption of innocence


The Supreme Court building. (J. Scott Applewhite/Associated Press)
The Supreme Court building. (J. Scott Applewhite/Associated Press)

Just FYI, in yesterday's Cato Daily Podcast I talk with Caleb Brown about the upcoming Nelson v. Colorado case in the Supreme Court (oral argument is set for Jan. 9). It's a pretty fascinating case—and, for those of a libertarian turn of mind, a true outrage. Colorado requires people who have had their criminal convictions overturned and vacated to prove, by "clear and convincing evidence," that they were actually innocent of the crime with which they were charged before the state will refund money that they had been required to pay (fees, restitution, costs) as a result of their earlier conviction.

Nelson is challenging this procedure as an unconstitutional violation of due process. [For more background on the case see my earlier posting here]. I helped to draft an amicus brief, submitted jointly by the Institute for Justice and the Cato Institute, supporting Nelson's position, and my chat with Caleb Brown covers some of the reasons why Colorado's reversal of the "presumption of innocence" should (and, I predict, will) be struck down by the Supreme Court.