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Writ of Actual Innocence Based on Non-Biological Evidence

There are two types of Writs of Actual Innocence:

  1. The Writ of Actual Innocence Based on Non-Biological Evidence; and

  2. 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.

The Writ of Actual Innocence Based on Non-Biological Evidence

The Writ of Actual Innocence Based on Non-biological Evidence is the only writ available for the wrongfully convicted to prove their innocence based on new non-biological evidence. The laws governing this writ have specific requirements that must be met in order to qualify for the writ. Previously, the criteria were high. However, recent changes in the law now make it easy to meet the burden of proof, file more than one writ, and apply for the writ even if you pleaded guilty to the crime.

What is required to file for a Writ of Actual Innocence Based on Non-Biological Evidence?

Va. Code § 19.2-327.10 through § 19.2-327.14 governs writs based on non-biological evidence. Section 19.2-327.11(A) contains a detailed list of requirements that you must meet. Among the most important ones are:

  • The new evidence of innocence must have been previously “unknown or unavailable” to you or your lawyer;

  • The new evidence could not have been discovered, through the exercise of due diligence, prior to 21-days after the final order of conviction (i.e., the sentencing order);

  • The date and circumstances under which you discovered the new evidence;

  • The evidence must be “material,” meaning it is credible and true;

  • The new evidence, “when considered with all of the other evidence” in the record, will prove that “no rational trier of fact would have found proof of guilt” beyond a reasonable doubt; and

  • The new evidence cannot be cumulative, corroborative, or collateral to the evidence at trial.

What is Non-Biological Evidence?

Non-biological evidence can be many different things. Here are some examples:

  • It could be a witness recanting their trial testimony. Sometimes witnesses don't tell the truth at trial because they feel pressured by the police or other witnesses. Oftentimes once the trial has concluded and the accused has received a lengthy prison sentence, the witness will recant because they feel guilty.

  • It can also be a new witness coming forward. For example, a new witness could come forward and testify that you were someplace other than the place where the crime was committed. The new witness could say that they actually saw someone else commit the crime. The new witness could even admit that they are the one who actually committed the crime.

  • Some new document or record could come forward. If you're case was partially based on documents or records, if a new document or record comes forward proving your innocence, you can use that in filing a writ.

Is a change in law “new evidence”?

No. The writ cannot be used to challenge conviction based on a change in the law. In Re: Rhodes, 44 Va. App. 14, 15, 602 S.E.2d 408 (2004) (The writ of actual innocence laws “solely allows review of previously unknown or unavailable non-biological evidence”).

Can I file more than one Writ of Actual Innocence?

Yes. The Virginia legislature changed the law in 2020 to allow people to file more than one writ of actual innocence if the first one is denied. However, you must present significant new evidence when you file a second writ of actual innocence.

Can I file a Writ of Actual Innocence if I pleaded guilty?

Yes. This is part of the recent changes that the legislature made to the law. The vast majority of criminal cases are resolved by guilty pleas. Even innocent people plead guilty to avoid imprisonment or a harsher lengthy prison sentence. Now they have a means to argue their innocence based on new evidence.

Is it easy prove your innocence?

No. Undoing a criminal conviction based on a claim of innocence is very rare under any circumstance. However, perhaps the most significant change made to the law in 2020 does make is easier to win your case. Previously, you had the burden of proving your innocence by “clear and convincing evidence,” which is a high bar. Now, the standard requires relief based on a “preponderance of the evidence,” a lower bar.

Virginia Post-Conviction Lawyer

Proving your innocence based on non-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.