Legal Commentary

Should a Criminal Conviction Be Automatically Vacated if the Defendant Dies While the Case is on Appeal?

By Eugene Volokh

The old answer seemed to be ?yes,? but in recent years the states have split on the subject. State v. Carlin, decided by the Alaska Supreme Court last Friday, switches Alaska from the ?yes? column to the ?no? column, partly because of growing concerns about victims? rights:

While abatement [i.e., erasure of the conviction ?EV] is contrary to the victims? rights under the Alaska Constitution, relying on the presumption of guilt after conviction to leave the conviction intact is contrary to the defendant?s right to appeal. Therefore, we choose the middle path, electing to follow those courts that allow the appeal to continue upon substitution. These courts have provided that either the State or the defendant?s estate may request substitution, allowing another party to be substituted for the defendant. Specifically, we agree with the high courts of Washington and Maryland that the defendant?s estate may substitute in for the deceased appellant.

Full post as published by The Volokh Conspiracy on March 31, 2011 (boomark / email).