Proving Your Innocence with New Evidence: Tyler v. Commonwealth

by Bryan Jones

Proving actual innocence under Virginia law following a criminal conviction is not an easy feat. Suppose you are convicted of assaulting and strangling another based on the testimony of the complainant, but you are claiming that you did not strangle the person, and a witness who did not testify at your trial comes forward corroborating your claim. Suppose also that the person you were accused of doing this to was later charged with harming someone else. Are these things enough to prove that you are innocent of strangulation in Virginia? Note exactly, according to the Court of Appeals in Tyler v. Commonwealth (Va. App. 2021).

What is required to prove innocence?

Petitions for actual innocence are governed by Chapter 19.3 of Title 19.2 of the Code of Virginia. These petitions require "new" evidence that meets the following criteria:

• The evidence must have been unknown or unavailable to you or your trial attorney at the time the conviction became final in the trial court

• The evidence could not have been discovered or obtained by the exercise of diligence before the conviction became final in the trial court.

In addition, you have the burden of proving innocence based on the new evidence. This is done under preponderance of the evidence standard, meaning that the quality of the evidence proving innocence outweighs the quantity of any evidence pointing to guilt. The new evidence must be such that no rational trier of fact would have found proof of guilt beyond a reasonable doubt if presented with it along with the evidence at trial. Moreover, the new evidence cannot be cumulative, corroborative, or collateral to other evidence presented at trial.

Why Did Tyler Not Prove Actual Innocence?

In Tyler v. Commonwealth, the accused was charged with assault and battery, and strangulation as a result of an altercation with the complainant. Tyler denied strangling the complainant. The incident was witnessed by several people who provide differing testimony at trial on the issue of whether the complainant was strangled. Based on the testimony, the trial court found Tyler guilty.

After trial, Tyler obtained the affidavit of a witness who stated that Tyler did not strangle the victim. Tyler also obtained a newspaper report in which the victim was later charged with violence on another person in an unrelated matter. Tyler sought to prove his innocence based on this evidence, but the Court of Appeals found this evidence insufficient as a matter of law. This is why.

1. The evidence was not new. The Court of Appeals found that the affidavit of the eyewitness who did not testify, which Tyler based his innocence claim on, was not new evidence. The court noted that Tyler knew who the witness was at the time of trial. Since Tyler was present at the time and location of the alleged strangulation, and so was the witness, the witness’s version of events in the affidavit was knowable to Tyler and his attorney at the time of trial.

2. The evidence could have been discovered with due diligence. The court found that even if the witness’s version of events were unknown and unavailable to Tyler or his attorney, Tyler still failed to carry his burden of demonstrating that the witness’s testimony could not have been discovered by the exercise of due diligence. Tyler did not articulate any effort made by him or his attorney to locate and call the witness at trial to satisfy the due diligence requirement. The court noted that the witnesses was discoverable based on information on the record but that Tyler’s lack of effort to have the witness subpoenaed at trial demonstrates “a complete lack of diligence.”

3. The evidence was cumulative and corroborative of evidence presented at trial. First, the court found that there were neutral witnesses who had already testified at trial consistent with what Tyler’s new witness could have testified to. The court noted that “[t]here is no indication in the record that [the new witness] was in a better position than [the ones who testified at trial] to witness or describe the events." Second, the court found that Tyler’s new witness would only have testified consistent with what Tyler himself testified to, which would make the new witness’s testimony corroborative to Tyler’s.

4. The trial court would still have found proof of guilt. The court found that the testimony of one of the witnesses who testified against Tyler alone would have been sufficient for a rational trier of fact to convict him.

5. The newspaper report does not prove innocence. The court found that the fact that the victim later assaulted another person does not make it more likely than not that Tyler did not commit the offense he was convicted of. The court reasoned that “[v]ictims of crime, at different times and different places, also can be perpetrators of crimes.”

Virginia Post-Conviction Lawyer

Proving your innocence based on nonbiological under Virginia law is rare. It is even possible to be innocent and still be denied because of the nature of the evidence purportedly proving innocence. You need an attorney who has experience with Writs of Actual Innocence in Virginia who would properly follow the process and put up a fight to prove your innocence. Such an attorney can make sure you get the best outcome in your case. Bryan J. Jones is committed to his clients and will develop a defense strategy tailored just for you. Contact Bryan J. Jones, LLC today.