Judicial Mistakes

convicted persons do not have a constitutional due process right to bring DNA-based
post-conviction "actual innocence" claims. District Attorney's Office v. Osborne, 557
U.S. 52 (2009). Thus, the way such claims are handled may vary greatly from one
jurisdiction to the next.
Following reports of a sizable number of DNA-based exonerations, some states also
have adopted broader "actual innocence" statutes allowing post-conviction challenges
on the basis of newly discovered evidence in general. The Commonwealth of Virginia
adopted such a law in 2004, subjecting petitioners to a very high standard of proof to
overturn a conviction: that "the previously unknown or unavailable evidence is material
and, when considered with all of the other evidence in the current record, will prove that
no rational trier of fact would have found proof of guilt or delinquency beyond a
reasonable doubt." Va. Code Ann. § 19.2-327.11.
Upon the presentation of such evidence, the Virginia Court of Appeals (its intermediate
appellate court) may reverse the conviction. In 2009 the State of Maryland adopted a
law with a significantly lower standard: the new evidence must "create[] a substantial or
significant possibility that the result may have been different[.]" Md. Code Ann., Crim.
Pro. Art. §8-301. However, the Maryland law allows for a retrial rather than a summary
reversal. The State of Utah has adopted an actual innocence statute. The legislatures of
Wyoming and Missouri were considering similar laws in 2013.
Even in those jurisdictions without formal "actual innocence" provisions in their postconviction
statutes, actual innocence can have a procedural effect, in that it will excuse
procedural default and permit the filing of a successor collateral relief petition. This is
based on the U.S. Supreme Court's decision in Schlup v. Delo, 513 U.S. 298 (1995), in
which a death row inmate filed a second federal habeas corpus petition, asserting as
substantive claims the claims that his trial lawyer had ineffectively failed to present alibi
witnesses and that the Government had wrongly concealed exculpatory evidence.
Schlup also argued that he was actually innocent—not because that was a substantive
ground for relief, but because his actual innocence excused his failure to raise his
ineffective-counsel and prosecutorial-nondisclosure claims in his state court pleadings
and in his first federal habeas petition. Whether or not relief was to be granted,
the Schlup Court held, depended on the merits of his ineffective counsel and
prosecutorial nondisclosure claims.
Pleading In The Alternative
Because pleading in the alternative is generally permitted in criminal cases, a defendant
may claim to have not committed the crime itself, but at the same time may claim
that if the defendant had committed the crime, the act was excused for a reason such
as insanity or intoxication, or was justified due to provocation or self-defense. Such
claims are, for obvious reasons, difficult to present to juries, because they entail arguing
both that the defendant did and did not commit the crime alleged.
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