Overturn My Conviction Based Upon Newly Discovered Evidence!
0October 30, 2024 by Tom Roberts, Esq.
Newly Discovered Evidence To Set Aside My Conviction
After you have been sentenced and you have exhausted your appeals and your habeas corpus proceedings, it is VERY difficult to have your conviction overturned.
Overturning a conviction in Virginia based on newly discovered evidence involves a few specific legal steps. Generally, you’ll need to file a motion with the court and meet particular criteria to demonstrate that the new evidence justifies reconsidering the original conviction. Here’s a breakdown of the typical steps:
Identify Qualifying New Evidence.
New – Not something you should have discovered with reasonable diligence!
The new evidence must be truly new and not something that could have been discovered with reasonable diligence at the time of the trial or before the conviction became final.
If discovered before the sentencing or the conviction is final – file a motion ASAP!
The motion must be filed with the court immediately. If the court has not yet sentenced you, then the court has the chance to set the conviction aside. After sentencing in Virginia, the court has 21 days in which it can do something — after that you have more limited opportunities to correct a wrongful conviction.
Writ of Actual Innocence. Post-Conviction Relief
- In Virginia, a person convicted of a crime can seek a “writ of actual innocence” if the new evidence (often DNA or other exculpatory evidence) establishes innocence. This petition is filed in the Virginia Court of Appeals or Supreme Court, depending on the type of conviction.
- The petition must be filed within 21 days of discovering the new evidence or as otherwise allowed by the court, with the assistance of legal counsel.
RECANTED WITNESS TESTIMONY
- Courts view recantations with ‘great suspicion’, particularly if by an accomplice. See “DEEP IN THE WEEDS” below for more in depth look.
Affidavits & Sworn Statements
Provide with your petition affidavits from witnesses or experts, or other proof supporting the claim of new evidence. This helps the court evaluate the legitimacy and impact of the evidence.
CLEAR AND CONVINCING
Virginia law requires that the new evidence must be “clear and convincing.” The petitioner needs to show that the new evidence is material to the conviction and would likely result in a different outcome if a new trial were held.
HEARING IF MOTION OR PETITION GRANTED
After reviewing the motion or petition, the court may schedule a hearing. During this hearing, you or your legal representative will present the evidence, argue its merits, and possibly cross-examine witnesses or experts related to the new findings.
APPEAL
If the petition is denied, it may be possible to appeal the decision to a higher court, particularly if procedural errors occurred or new arguments arise.
GET AN ATTORNEY TO HELP!
Working with an attorney familiar with post-conviction relief is crucial, as they can guide you through the process, gather the required documentation, and build a compelling case.
INTO THE WEEDS!
To prove materiality, a defendant must show that the new evidence “should produce opposite results on the merits at another trial.” Odum, 225 Va. at 130. Although after-discovered evidence merely impeaching a witness is generally not grounds for a new trial, the motion may be granted if the witness to be impeached is the “key prosecution witness.” See Whittington v. Commonwealth, 5 Va. App. 212, 216, 361 S.E.2d 449, 4 Va. Law Rep. 917 (1987) (granting new trial where defendant’s rape conviction was based solely on the complaining witness’ testimony who, he discovered after trial, made statements prior to trial denying that the crime occurred). However, a defendant must still establish that the evidence is “material to the extent that the outcome of the trial would have been affected.” Lamm, 55 Va. App. at 645 (finding evidence that victim recovered sense of taste and smell following conviction for aggravated malicious wounding immaterial because other evidence showed the injury was permanent and significant).
Bondi v. Commonwealth, 70 Va. App. 79, 93
PETITIONS FOR ACTUAL INNOCENCE IN VIRGINIA-MORE…
Petitions for actual innocence require “new” evidence. To constitute “new” evidence that will support a petition for actual innocence, the substance of Rogdrick’s affidavit must satisfy two distinct requirements. First, it must have been “unknown or unavailable to [Tyler] or his trial attorney . . . at the time the conviction . . . became final in the [trial] court[,]” Code § 19.2-327.11(A)(iv)(a). Additionally, it also must constitute evidence that “could not, by the exercise of diligence, have been discovered or obtained before” his conviction became final in the trial court. Code § 19.2-327.11(A)(vi)(a).
Recanting Witness
“Traditionally, courts view recantations with ‘great suspicion.'” Haas, 283 Va. at 292 (quoting Dobbert v. Wainwright, 468 U.S. 1231, 1233-34, 105 S. Ct. 34, 82 L. Ed. 2d 925 (1984)). The Fourth Circuit similarly has admonished “that a recantation, particularly by an accomplice, should be received skeptically.” Thompson v. Garrison, 516 F.2d 986, 988 (4th Cir. 1975); see also United States v. Lighty, 616 F.3d 321, 375 (4th Cir. 2010) (quoting United States v. Johnson, 487 F.2d 1278, 1279 (4th Cir. 1973)); United States v. Wilson, 624 F.3d 640, 664 (4th Cir. 2010) (same). Our skepticism of recantations “increases with the passage of time.” Haas, 283 Va. at 292. “Recantation evidence appearing long after the trial has ended places the opposing party at a disadvantage similar to that which justifies statutes of limitations.” Id. “Memories may have faded, witnesses may have disappeared or become incapable of testifying, physical evidence may be unrecoverable and the recanting witness may have had ample time to acquire an extraneous motive to falsify his original testimony.” Id. (emphasis added) (footnote omitted). “Courts are justifiably leery of post-trial statements by codefendants purporting to exonerate a cohort.” United States v. Bynum, 3 F.3d 769, 773 (4th Cir. 1993).
We assess the evidence and proffers individually under Code § 19.2-327.11(A), and then consider the totality of the evidence [defendant] has presented in support of his claim of innocence. Code § 19.2-327.13.
…
To be entitled to a non-biological writ of actual innocence, the petitioner must present evidence that was previously unknown or unavailable to him, and that could not have been discovered in the exercise of diligence before his conviction became final under Rule 1:1(a). Code § 19.2-327.11(A)(iv) and (vi); Bush, 68 Va. App. at 804; In re Neal, 44 Va. App. 89, 90, 603 S.E.2d 170 (2004). In addition, the evidence upon which the petitioner relies must be “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.” Code § 19.2-327.11(A)(vii); Bush, 68 Va. App. at 805-06. Newly-discovered evidence that is “merely cumulative, corroborative or collateral” is insufficient. Code § 19.2-327.11(A)(viii); Bush, 68 Va. App. at 809.
A petitioner can only obtain a writ of actual innocence if we find by “clear and convincing evidence” that he has proven all of the allegations required under Code § 19.2-327.11(A)(iv) through (viii). Code § 19.2-327.13; In re Brown, 295 Va. 202, 221, 810 S.E.2d 444 (2018) (evaluating claim for a biological writ of actual innocence). “‘[C]lear and convincing evidence’ must be convincing enough to render the assertion to be proved ‘highly probable or reasonably certain.'” Id. at 228 (quoting Black’s Law Dictionary 674 (10th ed. 2014)). The clear and convincing standard “cannot be met with evidence that leaves ‘competing inferences “equally probable.”‘” Id. at 227 (quoting Edmonds v. Edmonds, 290 Va. 10, 22, 772 S.E.2d 898 (2015)). In evaluating a claim of actual innocence, this Court considers all of the factual information in its totality and tests it under the clear-and-convincing standard. Phillips, 69 Va. App. at 563-64; In re Brown, 295 Va. at 229. Thus, this Court must “make a probabilistic determination about what reasonable, properly instructed jurors would do.” In re Watford, 295 Va. 114, 123, 809 S.E.2d 651 (2018) (quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)). Having considered the entire record, we hold that Knight has not met this high burden, notwithstanding his reliance on Dennis.
The Supreme Court held in Dennis that “[d]etermining whether evidence is true requires factual findings,” an endeavor that lies within the expertise of the trial courts, not the appellate courts. 297 Va. at 124, 130. Thus, “[i]n heavily fact-dependent cases . . . that turn on the materiality of new evidence offered by new witnesses whose credibility is not apparent from the record, the Court of Appeals should err on the side of ordering a circuit court evidentiary hearing.” Id. at 130 (emphasis added). The Supreme Court instructed:
Where a new witness has been found, who has not previously testified and who could not with due diligence have been discovered before the conviction became final, reference to the circuit court for an evidentiary hearing might be appropriate because of a trial judge’s unique ability to see and hear the witness first hand and to evaluate his credibility from his appearance and demeanor while testifying. Witnesses who testified at the original trial, but later decide to recant their testimony, stand on a different footing.
Id. at 129 (quoting Haas v. Commonwealth, 283 Va. 284, 291-92, 721 S.E.2d 479 (2012)).
[CONCLUSION – OFTEN THE OUTCOME:] This case involves no new, previously unknown witnesses. The witnesses [defendant] presents previously testified, albeit McAllister testified only at Knight’s preliminary hearing. Accordingly, Knight’s witnesses “stand on a different footing” from the witnesses presented in Dennis; thus, Haas v. Commonwealth, 283 Va. 284, 721 S.E.2d 479 (2012), and Carpitcher v. Commonwealth, 273 Va. 335, 641 S.E.2d 486 (2007), control our review.
“[T]o be ‘material,’ within the meaning of Code § 19.2-327.11(A)(vii), evidence supporting a petition for a writ of actual innocence based on non-biological evidence must be true.” Dennis, 297 Va. at 124 (quoting Carpitcher, 273 Va. at 345). “Manifestly, evidence that is false cannot be ‘material’ under the terms of the statute.” Carpitcher, 273 Va. at 345. “The materiality inquiry is particularly important when a petition for a writ of actual innocence is based largely on a recantation because, ‘[u]nless proven true, recantation evidence merely amounts to an attack on a witness’ credibility by the witness [himself].’” Id. at 128 (quoting Carpitcher, 273 Va. at 346). Although assessing whether evidence is true requires fact finding, this Court is vested with the statutory authority to “engag[e] in factual evaluation” if, in the exercise of our discretion, we determine that further factual development is unnecessary. Id. at 127. We find that further factual development is unnecessary in this case.
Knight v. Commonwealth, 71 Va. App. 492, 506-508
Dennis v. Commonwealth, 297 Va. 104 (2019)
Summary: It is an abuse of discretion for the Court of Appeals to decline to order an evidentiary hearing on a writ of actual innocence based on nonbiological evidence, under Va. Code Ann. § 19.2-327.12, when the petitioner offered previously unknown and untested affidavits tending to exonerate the defendant and implicate another.
From the Court: When considering the Court of Appeals’ dismissal of a petition for a writ of actual innocence based on nonbiological evidence, this Court ordinarily applies a de novo standard of review to both its conclusions of law and conclusions based on mixed questions of law and fact. Johnson v. Commonwealth, 273 Va. 315, 321, 641 S.E.2d 480 (2007). Similarly, when the Court of Appeals refers issues to a circuit court for an evidentiary hearing and subsequently approves the circuit court’s findings, those findings bind this Court unless they are plainly wrong or without evidence to support them. Id. Whether to refer an issue to a circuit court in the first instance, however, is a decision that lies within the Court of Appeals’ “broad discretion.” Haas v. Commonwealth, 283 Va. 284, 291, 721 S.E.2d 479 (2012). Accordingly, we review the Court of Appeals’ decision not to order an evidentiary hearing for abuse of that discretion.
The General Assembly conferred original jurisdiction on the Court of Appeals to entertain petitions for writs of actual innocence based on nonbiological evidence when it enacted Code §§ 19.2-327.10 through -327.14. The Court of Appeals may grant such a writ “only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of § 19.2-327.11, and upon a finding that no rational trier of fact would have found proof of guilt . . . beyond a reasonable doubt.” Code § 19.2-327.13. Thus, to obtain relief under the statutory scheme, the petitioner must allege and prove that the newly discovered evidence:
(1) “was previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction . . . became final in the circuit court;” Code § 19.2-327.11(A)(iv);
(2) “is such as could not, by the exercise of diligence, have been discovered or obtained before the expiration of 21 days following entry of the final order of conviction . . . by the circuit court;” Code § 19.2-327.11(A)(vi); credibility of witnesses depends on a variety of circumstances, which may be seen and known by those who are present at their viva voce examination, but which cannot be transmitted through their written testimony, to an appellate court. On a mere question of credibility, therefore, when there is nothing in the record to throw light on the subject, this court will always presume, that the inferiour court, that saw and heard the witnesses examined, has decided correctly.
(3) “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 . . . beyond a reasonable doubt;” Code § 19.2-327.11(A)(vii); and
(4) “is not merely cumulative, corroborative or collateral.” Code § 19.2-327.11(A)(viii).
Dennis v. Commonwealth, 297 Va. 104, 122-124
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