Actual innocence

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Actual innocence is a state of affairs in which a defendant in a criminal case is innocent of the charges against them because they did not in fact commit the crime of which they have been accused.

A claim of actual innocence is the most widely used[1][2]—yet often the least studied—defense to crime. Most law school criminal law courses focus on the wide variety of defenses that may apply where the accused in fact committed a criminal act, but presents an excuse that eliminates their liability for that act. In such cases, the defendant may be acquitted despite the concession that the defendant committed a criminal act. In the vast majority of cases, however, the defense put forth for crime is that the evidence supports the claim that the defendant committed no criminal act at all.

The Tarlton Law Library at the University of Texas at Austin maintains an "Actual Innocence awareness database" containing "resources pertaining to wrongful convictions, selected from the popular media (such as newspaper articles and segments which aired on television news magazines), journal articles, books, reports, legislation and websites".

The only difference between a finding of innocence and a finding of actual innocence is where the burden of proof lies. Actual Guilt is not required in the United States for person to be found culpable. Only "proof beyond a reasonable doubt". After the trial the burden of proof shifts from the state to the convicted person. If they obtain post-conviction relief from the conviction it is a finding of 'Actual Innocence'. At the initial trial, when the burden of proof is on the state, an acquittal or not-guilty finding is considered a finding of 'innocence' because the proof was on the state.

The phrase is most often found in the debate that has taken place in the Courts of the United States over when a convicted person, that has exhausted all reviews of the conviction permitted by statutory law of a State, may have an additional review. The law is now well established by the United States Supreme Court, and in the State of Texas. A convicted person may file an otherwise barred petition for habeas corpus review if they can make a showing of 'actual innocence'. The Court that receives the petition then reviews the new evidence, or constitutional error that for some reason was not previously raised (usually due to ineffective assistance of counsel) to determine if the 'showing' of actual innocence is sufficiently clear and convincing to justify granting relief from the conviction. See Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Cr. App. 1996). The prior precedent, Herrera v. Collins, 506 U.S. 390 (1993), created a public outcry when a slim majority, under Chief Justice Rehnquist, held that the 8th Amendment ban on cruel and unusual punishment would not be violated by executing a person who could show actual innocence but was procedurally barred from another review of their conviction.

The typical innocence defense[edit]

Because the prosecution must prove guilt beyond a reasonable doubt, a defendant asserting actual innocence need only raise a reasonable doubt as to whether they were the person who committed a particular crime, or whether the acts that they committed amount to the commission of a crime. In point of fact, the defendant is not obliged to present a defense at all.

Examples of an actual innocence defense include:

Many celebrated criminal cases have rested solely on the defense that the defendant did not commit the crime - for example, O.J. Simpson, Robert Blake, and Michael Jackson all claimed that they simply had not committed the acts charged. By contrast, defendants such as Jeffrey Dahmer, Susan Smith, and Lorena Bobbitt conceded that they committed the criminal act, but raised defenses such as insanity or diminished capacity.

"Actual innocence" pleas in post-conviction collateral proceedings[edit]

Because most forms of post-conviction collateral relief are limited to procedural or Constitutional flaws in the trial itself, claims of "actual innocence" generally are recognized only in those states which have adopted specific "actual innocence" statutes. Otherwise, in order to obtain post-conviction collateral relief, a defendant must often plead a specific statutory grounds for relief, i.e., that the conviction was obtained in violation of the Constitution of the United States. In jurisdictions that restrict a court's power to hear a post-conviction petition to a time period defined by statute, the court cannot grant post-conviction relief upon expiration of the time period regardless of the discovery of proof of "actual innocence" of the crime for which he was convicted. The jurisdictional bar is often rationalized by citing the requirement of finality of the judicial process in order to maintain the integrity of the system.

As DNA testing grew more sophisticated, many states adopted statutes allowing newly discovered DNA results to form the basis of a challenge to a conviction on grounds of "actual innocence." The Supreme Court has ruled, however, that 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).

However, 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 post-conviction 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, 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[edit]

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.

An English perspective[edit]

Much of US criminal law is derived from the English common law, whose standard analysis is that (with the exception of strict liability offences) a crime is made up of two parts: (i) the guilty act (actus reus) (ii) and 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"; rather 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 UK, like all 47 Member States of the Council of Europe, is a signatory to the European Convention of Human Rights,[3] 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 USA.


  1. ^ Paul Bergman, Sara J. Berman-Barrett, The Criminal Law Handbook: Know Your Rights, Survive the System (2007), p. 285 (stating "Undoubtedly, the most common defense argument is that the prosecution has failed to prove the defendant guilty").
  2. ^ Thomas J. Gardner, Victor Manian, Criminal Law: Principles, Cases, and Readings (1975), p. 123 (stating "The most common defense to a criminal charge is that of denying that the defendant committed the offense").
  3. ^

Further reading[edit]