Virginia law provides for petitions to vacate felony convictions based upon two
different categories of new evidence of "actual innocence." See Virginia Code
Sections 19.2-327.1 through 19.2-327.14.
Since 2001, Virginia law has provided a limited procedure for incarcerated
persons to prove "actual innocence" by newly discovered or previously untested
scientific evidence. The ordering of the new scientific testing must be requested
at the circuit court level. Then, if the new "human biological evidence" test
results adequately support the claim of actual innocence, a petition must be filed
with the Supreme Court of Virginia to rule on whether the conviction(s) will be
vacated.
Since 2004, Virginia law has provided a limited procedure for convicted persons
to prove "actual innocence" by previously unknown or previously unavailable
"nonbiological evidence." The Petition For Writ of Actual Innocence must be
filed with the Court of Appeals of Virginia. That Court will first decide whether
all statutory criteria have been met, if the new evidence were to be believed. If
that Court so finds, an evidentiary hearing will conducted back in the circuit
court. If the Petitioner proves to the circuit court judge, by clear and convincing
evidence, that the new evidence is true, that judge will so certify, and the Court
of Appeals shall vacate the conviction. If the final decision of the Court of
Appeals is not the vacating of the conviction, the Petitioner may appeal the
matter to the Supreme Court of Virginia.
As of this time, no petition for new nonbiological evidence actual innocence has
resulted in a vacating of the conviction. Of the hundreds of petitions which
have been filed, only a handful have satisfied the Court's initial screening
phase. Those few cases were all "recantation" cases, in which the prosecution's
key witness later swore that their sworn trial testimony was a false claim of the
defendant's guilt. However, the current status of the Virginia Supreme Court's
interpretation of the statute is that it is not enough for the circuit court judge to
state that the circuit court is now unsure which version is true or untrue. The
petitioner must prove, by clear and convincing evidence, that the new sworn
claim of actual innocence is the true version. This standard is not impossible,
but it is formidable.
The hope for success in a new evidence case is like when a certain football team
is said to be "beatable" but not yet beaten.
For discussion of whether your case may satisfy the particular statutory criteria,
please contact Andrew Wiggin.
different categories of new evidence of "actual innocence." See Virginia Code
Sections 19.2-327.1 through 19.2-327.14.
Since 2001, Virginia law has provided a limited procedure for incarcerated
persons to prove "actual innocence" by newly discovered or previously untested
scientific evidence. The ordering of the new scientific testing must be requested
at the circuit court level. Then, if the new "human biological evidence" test
results adequately support the claim of actual innocence, a petition must be filed
with the Supreme Court of Virginia to rule on whether the conviction(s) will be
vacated.
Since 2004, Virginia law has provided a limited procedure for convicted persons
to prove "actual innocence" by previously unknown or previously unavailable
"nonbiological evidence." The Petition For Writ of Actual Innocence must be
filed with the Court of Appeals of Virginia. That Court will first decide whether
all statutory criteria have been met, if the new evidence were to be believed. If
that Court so finds, an evidentiary hearing will conducted back in the circuit
court. If the Petitioner proves to the circuit court judge, by clear and convincing
evidence, that the new evidence is true, that judge will so certify, and the Court
of Appeals shall vacate the conviction. If the final decision of the Court of
Appeals is not the vacating of the conviction, the Petitioner may appeal the
matter to the Supreme Court of Virginia.
As of this time, no petition for new nonbiological evidence actual innocence has
resulted in a vacating of the conviction. Of the hundreds of petitions which
have been filed, only a handful have satisfied the Court's initial screening
phase. Those few cases were all "recantation" cases, in which the prosecution's
key witness later swore that their sworn trial testimony was a false claim of the
defendant's guilt. However, the current status of the Virginia Supreme Court's
interpretation of the statute is that it is not enough for the circuit court judge to
state that the circuit court is now unsure which version is true or untrue. The
petitioner must prove, by clear and convincing evidence, that the new sworn
claim of actual innocence is the true version. This standard is not impossible,
but it is formidable.
The hope for success in a new evidence case is like when a certain football team
is said to be "beatable" but not yet beaten.
For discussion of whether your case may satisfy the particular statutory criteria,
please contact Andrew Wiggin.
Andrew G. Wiggin, P.C.
www.post-trial-litigation.com
(757) 333-7539
(757) 333-7539
Actual Innocence
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
"Serving clients in all litigation after state criminal trials, all across Virginia."
Disclaimer: The information provided on this website is not legal advice. Accessing the information on
this website does not establish an attorney/client relationship. No attorney may ethically promise a
certain litigation outcome based on a future decision by a court. Persons interested in retaining the legal
services of Andrew G. Wiggin, P.C. should contact the Firm. Potential clients or interested persons
may contact the Firm to discuss retaining Andrew G. Wiggin for post-trial litigation. Andrew G.
Wiggin does not serve as counsel of record in federal courts, nor give legal advice on representation in
federal litigation, although referrals can be provided.
All pictures used with applicable copyright permission.
Copyright 2007 by Andrew G. Wiggin, P.C. All rights reserved.
this website does not establish an attorney/client relationship. No attorney may ethically promise a
certain litigation outcome based on a future decision by a court. Persons interested in retaining the legal
services of Andrew G. Wiggin, P.C. should contact the Firm. Potential clients or interested persons
may contact the Firm to discuss retaining Andrew G. Wiggin for post-trial litigation. Andrew G.
Wiggin does not serve as counsel of record in federal courts, nor give legal advice on representation in
federal litigation, although referrals can be provided.
All pictures used with applicable copyright permission.
Copyright 2007 by Andrew G. Wiggin, P.C. All rights reserved.