There are two types of Writs of Actual Innocence:
The Writ of Actual Innocence Based on Non-Biological Evidence; and
The Writ of Actual Innocence Based on Biological Evidence.
It is important to understand the differences between the two so that you can fight your case most effectively.
Evidence of witness testimony in a criminal trial may be untruthful or mistaken, and it is usually up to the judge or jury to believe or disbelieve it. Biological (i.e., DNA) evidence, on the other hand, does not lie. DNA evidence can be used to exonerate the innocent and convict the guilty. But what happens when an innocent person is convicted of a crime based on false or mistaken witness testimony and there is DNA evidence that was not tested, or the test was outdated and unreliable?
Virginia has a very narrow avenue for wrongfully convicted persons to prove their innocence based on biological evidence. The process usually involves making sure that the evidence is preserved, requesting that the court order scientific testing, and using the results to prove actual innocence in court.
Va. Code § 19.2-270.4:1 allows a person convicted of a felony and not sentenced to death to obtain an order from the circuit court to preserve and store evidence. DNA evidence will be held for up to 15 years unless the court orders a longer period in its discretion. If the State collected DNA evidence in the case, this should be your first step because many localities destroy evidence in criminal cases after the trial, direct appeals, and post-conviction avenues have been exhausted.
The next step is to request the court to order scientific testing on the DNA evidence. Va. Code § 19.2-327.1 allows you to do this under the following circumstances:
The evidence was not previously known or available or the evidence was not previously subjected to testing;
The evidence is subject to a chain of custody sufficient to establish that the evidence has not been altered, tampered with, or substituted in any way;
The testing is materially relevant, noncumulative, and necessary and may prove actual innocence;
The testing requested involves a credible scientific method; and
There has not been an unreasonable delay in making the request to test the evidence after the evidence or the test for the evidence became available.
The request must also be accompanied by an explanation for why the evidence was not previously known or tested and how the newly discovered or untested evidence proves actual innocence. The court will then address whether each statutory requirement is met and issue a ruling.
If the results of scientific evidence ordered by the circuit court are favorable towards proving actual innocence, the last step is to petition the Supreme Court of Virginia for a Writ of Actual Innocence. Va. Code § 19.2-327.2 et seq. governs this process. The petition must be filed within 60 days of when the scientific test results were obtained, and all statutory requirements must be met for the court to move the case forward. A recent change in the law now allows the Attorney General of Virginia to join the Writ of Actual Innocence in urging the Court to grant it.
Not every case in which the results reveal a lack of DNA leads to exoneration. The prosecution’s evidence and theory of the case might provide for the possibility for the crime to have been committed without leaving any DNA. Other cases may reveal results excluding the person convicted but implicating another individual. In some cases, the results only confirmed the court’s judgment convicting the accused.
Proving your innocence based on biological evidence in Virginia under the Writ of Actual Innocence is rare. It is even possible for to be innocent and be denied because of inadequacies in getting the evidence preserved, tested, and using those results to argue 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.