Factual Innocence

A person arrested for a domestic dispute but never charged, a prisoner convicted of rape but released thanks to exonerating DNA evidence, and a robbery defendant acquitted after trial may all have one thing in common: factual innocence. Factual innocence may prevent a criminal charge in the first instance and may, at times, exonerate a person previously found guilty. And, it is the driving force behind a recent groundswell of writs on behalf of inmates who claim wrongful convictions.

This article discusses factual innocence in general. For information about affirmative defenses, see Affirmative Defenses in a Criminal Case.

What is Factual Innocence?

The term factual innocence is used with slightly different shadings in each of the legal procedures in which it is invoked, but it means essentially that the defendant did not commit the crime even if he was found guilty at trial. A person may, in fact, be innocent but found guilty at trial due to a range of factors, from prosecutorial misconduct to just bad luck in jury selection.

Factual innocence may come up at any stage in a criminal proceeding, but its role in exonerating wrongfully convicted prisoners has received much attention since the advent of DNA evidence.

The Innocence Project

Through the use of DNA evidence, which allows a defendant to challenge a conviction based on the lack of a match between his DNA and that found at a crime scene, many prisoners have successfully challenged their convictions. Defense attorneys, including those associated with the "Innocence Project" (which represents prisoners challenging convictions), believe that the DNA exonerations, as they are called, are the tip of an iceberg of wrongful convictions. The reasoning is that not every prisoner can turn to DNA evidence (often because none was present at the crime scene or admitted at trial) to seek an exoneration. Indeed, even some defendants who plead guilty were not actually guilty. A telling statistic supports this position: of the first 265 defendants whose convictions were overturned based on DNA evidence, 22 had pleaded guilty.

Habeas Corpus Writs

Frequently, prisoners who believe that they were wrongfully convicted will file writs of habeas corpus. This writ is a demand filed with an appeals court (or the U.S. Supreme Court) that the imprisoning authority show the legal grounds justifying detention.

A writ isn't the same as an appeal, which is limited to the evidence produced at trial. Because a claim of factual innocence is, almost by definition, premised on new information not presented at trial, it typically cannot be made in an appeal. (But an "insufficiency of evidence" argument, which, if accepted, results in an acquittal, can be made on appeal.) Prisoners often file concurrent appeals, challenging their conviction, and writs, challenging the conviction based on new matter.

Petition for Finding of Factual Innocence and Sealing of Records

Innocent former defendants can petition for a finding of factual innocence and sealing or destruction of records relating to the case. In California, for example, someone who was arrested or charged—but not convicted—can petition for the sealing and eventual destruction of any records of arrest. (Cal. Penal Code § 851.8.) Likewise, a person whose conviction is set aside based on a factual innocence finding is entitled to the sealing of all case records. (Cal. Penal Code § 851.86.) This kind of relief allows the defendant to act as if the arrest, prosecution, or conviction never occurred, and makes it less likely that anyone (such as an employer) could inadvertently find out about it.

For information on related topics, see Expunging or Sealing a Juvenile Court Record and Expungement or Sealing of Adult Criminal Records.

And for information about the effect of arrest and convictions on employment, see Pending Criminal Charges and a Criminal Record: Effect on Employment.

See a Lawyer

Seeking to overturn a conviction, petitioning a court to make a finding of factual innocence, and similar applications for relief involve sophisticated legal procedures and are best handled by an attorney experienced in criminal defense law. Importantly, a knowledgeable lawyer will be aware of any deadline that you must meet (for instance, filing for relief within two years of arrest). Sealing a criminal or juvenile record can also be challenging, particularly if your eligibility for the procedure is not clear. See a criminal defense lawyer in your area to discuss your rights and options if you have questions about an arrest, prosecution, or conviction.

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