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Overturn My Conviction Based Upon Newly Discovered Evidence!

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October 30, 2024 by Tom Roberts, Esq.

Get Out of Jail!
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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:

Get Out of Jail!

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.

Newly Discovered Evidence

Relevant-The evidence must make a difference!

The evidence must be relevant to the case and strong enough that it could potentially change the outcome of the conviction.

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.

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.

Thomas H Roberts & Associates, PC
105 S 1st Street
Richmond, VA 23219
804-783-2000

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).


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