Judicial Mistakes

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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. Page 48 of 166
An English Perspective Much of U.S. criminal law is derived from the English common law, whose standard analysis is that (with the exception of strict liability offenses) a crime is made up of two parts: (i) the guilty act (actus reus); and (ii) the guilty intention (mens rea). A court examines the issues in sequence since there is little point in establishing intent if the accused did not commit the act. The court will convict only if the actus and the mens are shown beyond reasonable doubt. If convicted, the accused may contest either or both of the findings of actus or mens. England does not have the specific concept of "actual innocence" but the courts are concerned to ensure that an innocent person is not subject to a criminal penalty. The appeal process will not impose an onus of proof of "beyond reasonable doubt" to show innocence, but (even if the process takes years) a court will allow new evidence to be adduced if it tends to show that the accused did not (or could not) commit the crime. The United Kingdom, like all 47 Member States of the Council of Europe, is a signatory to the European Convention of Human Rights, [6] and is prohibited by Article 3 from using the death penalty so there is no longer the fear that an innocent man may be executed. The case of prisoner Troy Davis, executed 21 September 2011, illustrates the difficulties that a person has, once convicted, to prove his "actual innocence" in the U.S. Page 49 of 166
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About The Author John C (Jack) John
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Judicial Mistakes

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