RD52 - Writ of Actual Innocence Based on Non-Biological Evidence (21 Day Rule)

Executive Summary:
In November 2002, the Virginia Supreme Court distributed for public comment a proposed rule to provide procedures that would allow the introduction of newly discovered non-biological evidence more than 21 days after the conclusion of a criminal trial. The Court's proposal would have: allowed for a petition for a new trial in circuit court; mandated hearings if requirements of the petition were met; applied procedures to both those who plead guilty and those who plead not guilty; and, included a legal test where evidence is "such as should produce opposite results on the merits in another trial." In an effort to preempt the implementation of this proposed rule, the Crime Commission introduced legislation during the 2003 legislative session to formally extend through statute the timeframe for the introduction of newly discovered evidence from 21 to 90 days. (*1) This legislation passed with a delayed enactment clause allowing study of the issue by the Crime Commission. Consequently, the Virginia State Crime Commission formed a 22 person task force to examine this issue and prepare legislation in November 2003.

The Task Force made the following decisions on eleven issues and incorporated them into legislation that was presented to the Crime Commission for adoption: (*2)

1). Filing of Petitions

• Petitions should be filed in the Court of Appeals;
• The Court of Appeals is empowered to decide these cases by panel; and,
• If necessary, the Court of Appeals may remand the case to a trial court for evidence to be taken.

2). Eligibility for Writ Application

• Any person convicted of a felony may apply for a Writ;
• Even someone not incarcerated may file; and,
• If someone pleads guilty, he would not be able to make use of this Writ.

3). Remedies Available To Petitioner

• Having the conviction vacated; or,
• If guilty of a lesser included offense, a new sentencing.

4). Time Deadline for Filing

• There is no deadline for filing a Writ of Actual Innocence based on Non-biological evidence; however,
• Filing may not be used to delay or stay an execution.

5). Ability to Summarily Dismiss Petitions

• The Court of Appeals has the power to summarily dismiss the petition;
• The Court of Appeals may dismiss the petition before receiving a response from the Attorney General's office; and,
• If the Court of Appeals decides not to summarily dismiss, it will then notify the Attorney General that a response is required.

6). Court-Appointed Counsel

• Petitioner is entitled to court-appointed counsel if his/her petition is not summarily dismissed;
• The Court of Appeals may, in its discretion, appoint counsel prior to deciding summary dismissal; and,
• A Public Defender may be appointed, as well as a court-appointed attorney in private practice.

7). Contents of Petition and Elements the Petitioner Must Prove to Obtain Relief

• Crime for which he was convicted;
• Statement that petitioner is actually innocent;
• Exact description of the new evidence;
• Evidence was not known or available to the defendant or his attorney;
• The date and circumstances under which the evidence became known;
• The evidence could not have been discovered through due diligence prior to the conviction becoming final;
• The evidence is material, and will prove no rational trier of fact could have found proof of guilt beyond a reasonable doubt; and,
• The evidence is not merely cumulative, corroborative or collateral.

8). Components of the Petition Must Include

• All relevant allegations of fact;
• All relevant documents, affidavits, and test results; and,
• All previous records, applications and appeals.

9). Types of Evidence Eligible for Claim

• There are no limits on the types of evidence that may be used to support a claim, but human biological evidence may only be used in conjunction with other evidence; and,
• If the evidence consists solely of DNA results, Writ of Actual Innocence would be remedy.

10). Burden of Proof for the Defendant

• The burden of proof for the defendant is a clear and convincing standard; and,
• No rational trier of fact could have found proof of guilt beyond a reasonable doubt.

11). Requirements for Additional Hearings:

• Both the Commonwealth of Virginia and the defendant could petition for an appeal of the decision rendered by the Court of Appeals to the Supreme Court of Virginia;
• Any such appeal to the Supreme Court of Virginia would be discretionary; and,
• There would be no possibility for habeas suits, or other causes of action.

After reviewing Task Force decisions, fie Virginia State Crime Commission approved the proposed Task Force legislation with a few technical amendments:

These amendments to the original Task Force legislation were incorporated into Senate Bill 333 (Stolle) (*3), which subsequently passed the 2004 Virginia General Assembly with minor changes. (*4)
(*1) Senate Bill 1143 (2003) and 2003 Va. Acts ch. 1017.
(*2) 21-Day Rule Task Force, Proposed Legislation for the Writ of Actual Innocence based on Non-biological Evidence. See Attachment 1.
(*3) Senate Bill 333 (2004). See Attachment 1(a)
(*4) 2004 Va. Acts ch. 1024. See Attachment 2.