Actual Innocence and Freestanding Claims for Relief

False confessions, bad eyewitness identifications, and faulty forensics, among other problems, have shown that seemingly iron clad adjudications can reach the wrong result.1 “[A] ‘guilty’ verdict only indicates that the government has proven beyond a reasonable doubt that the defendant committed each and every element of the crime, and not that the defendant actually committed the crime.”2 A freestanding claim of actual innocence3 is a potentially powerful tool to assail a verdict that points to the wrong person. Still, courts4 and legislatures5 have made only small gains in recognizing actual innocence generally6 as a basis for contesting a wrongful conviction.

The right to overturn a verdict based on proof of actual innocence has not been openly embraced by the U.S. Supreme Court, and only assumed for the sake of argument.7 In 2009, a capital defendant in Georgia, Troy Anthony Davis, filed an original writ of habeas corpus in the U.S. Supreme Court in which he raised an actual innocence claim.8 The majority of the Justices decided to transfer the matter to a federal court in Georgia for an evidentiary hearing.9 After reviewing the matter and ultimately rejecting petitioner’s claim,10 the District Court judge nonetheless declared: “[E]xecuting an innocent person would violate the Eighth Amendment of the United States Constitution.”11 Whether this position will be adopted by the U.S. Supreme Court remains to be seen.12

This article collects selected scholarship on “actual innocence” and litigating post-conviction claims that go beyond the procedural metrics of the trial process.


  • Actual Innocence and Manifest Injustice, 49 St. Louis L.J. 481 (2005)
    “Part II of this article considers the case of Joseph Amrine, recently decided by the Missouri Supreme Court, to set the stage for the normative debate. We then turn to four arguments advanced against having appellate courts seriously consider claims of actual innocence. In Part III, we consider an argument from federalism that is mainly focused on denying federal courts appellate review of actual innocence claims. In Part IV, we consider an argument based on finality and efficiency. In Part V, we consider an argument based on procedural due process. And in Part VI, we consider an argument grounded in considerations of deterrence. In all four cases, the arguments are found wanting. Part VII considers the core idea of substantive due process and argues that such an idea is indeed incompatible with executing the innocent. We conclude by briefly presenting the beginnings of an argument about how to fix the system, perhaps by the creation of a special appellate court or permanent special master empowered to consider evidence of ‘actual innocence.'”
  • Actual Innocence as a Gateway Through the Statute-of-Limitations Bar on the Filing of Federal Habeas Corpus Petitions, 90 Calif. L. Rev. 2101 (2002)
    “The writ of habeas corpus has for centuries served as an indispensable safeguard of an individual’s constitutional rights. This Comment argues that, for the writ to continue to do so, courts should construe the AEDPA’s statute of limitations to allow an actual-innocence exception. The Comment focuses on the rights of state, rather than federal, prisoners to bring their constitutional claims because the issues raised by state prisoners’ federal habeas petitions best illustrate the relevant doctrinal tensions.”
  • Actual-Innocence Policy, Non-DNA Innocence Claims, N.Y. L.J., April 4, 2008, at 4
    “The increasing numbers of DNA exonerations in recent years continue to demonstrate that criminal trials do not adequately protect the innocent from wrongful convictions. But the DNA exoneration cases only present the tip of the iceberg. Exponentially greater numbers of people, whose cases lack DNA evidence, are currently in prison for crimes they did not commit. Common sense dictates that the judiciary should start to take claims of actual innocence more seriously in non-DNA cases, especially when the convictions are predicated on evidence we now know is susceptible to producing wrongful convictions. The actual innocence doctrine provides the courts with the vehicle to reevaluate these cases, including those cases previously rejected before studies of DNA exonerations addressing the causes of wrongful convictions have come to light.”
  • Executing the Factually Innocent: The U.S. Constitution, Habeas Corpus, and the Death Penalty: Facing the Embarrassing Question at Last, 1 Stan. J.C.R. & C.L. 473 (2005)
    “This Article advances the proposition that the mere conviction of a factually innocent person is a constitutional violation. Convicting the wrong person goes well beyond an error in fact as to the identity of the perpetrator. Substantive due process of law goes well beyond fair process and requires that no factually innocent person be convicted and punished for a crime he or she did not commit. If the Constitution means anything at all, it stands for truth and justice. If this means a case must be reopened to free the innocent, so be it. If this means the state must continue to bear the burden of proof beyond a reasonable doubt to sustain a conviction in habeas corpus proceedings before a judge, so be it. Sacrificing the innocent is anathema to the Constitution and the natural-law roots of this nation. Fundamental fairness and substantive due process will never tolerate putting law ahead of justice. Executing the factually innocent is incompatible with justice. This is a fundamental principle of a society governed by the rule of law. It is time the Court directly confront the question of whether the execution of an innocent person is a constitutional violation, and, if so, whether the conviction and detention of a factually innocent person is too.”
  • Facing the Unfaceable: Dealing with Prosecutorial Denial in Postconviction Cases of Actual Innocence, San Diego Law Review (Forthcoming)
    “This article argues that the psychological concept of denial goes a long way in explaining prosecutors’ conduct. Rather than portraying these prosecutors as megalomaniacal abusers of the adversary system who will protect their win-loss ratios at any cost, a theory of denial posits that prosecutors simply cannot face the fact of a wrongful conviction or its implications for the entire system of justice. Ironically, a prosecutor’s desire to do justice and her self-image as a champion of justice renders the fact of wrongful conviction particularly painful. As a result, some prosecutors go to incredible lengths to deny the obvious rather than facing the fact that the system failed and they may have contributed to the injustice.”
  • Facing up to Wrongful Convictions: Broadly Defining “New” Evidence at the Actual Innocence Gateway, 59 Hastings L.J. 711 (2008)
    “This Note argues that the federal courts should adopt the newly-presented rule rather than the newly-discovered rule. The newly-presented rule strikes an evenhanded balance between petitioners’ rights and notions such as federal-state comity, judicial economy, and the finality of judgments. The newly-presented rule permits habeas courts to meaningfully review petitioners’ actual innocence claims while also protecting the federal courts from abusive litigation. Accordingly, the newly-presented rule is in harmony with the values underpinning our criminal justice system and should be uniformly adopted.”
  • Gateway to Justice: Constitutional Claims to Actual Innocence, 64 U. Miami L. Rev. 1279 (2010)
    “This article examines the extent of wrongful convictions and the procedural paradox that complicates any actual innocence claim. Specifically, statutes attempting to insulate petitioners from constitutional errors or the misappropriation of law fail to provide adequate safeguards against wrongful convictions. DNA evidence and new technologies are exposing more and more wrongful convictions every day, revealing innocent individuals who have had fair and impartial trials. The article then reviews Troy Davis’s case. Davis is a compelling example of a case in which all constitutional errors (other than his actual innocence) have been resolved and what is left is the glaring conclusion that he very well might be innocent and on his way to execution. This article considers how the state and appellate courts may have resolved Davis’s motions as well as Davis’s second or successive writs under AEDPA, and explains why AEDPA presents obstacles to petitioners asserting actual innocence. This article also recommends to the federal district court mechanisms under AEDPA that will provide Davis with relief.”
  • Innocence Commissions and the Future of Post-Conviction Review, Arizona Law Review (Forthcoming)
    “The article explains why existing court-based procedures are inadequate to address collateral claims of actual innocence and why innocence commissions, due to their independent investigatory powers, are better suited to reviewing such claims. While critics on the Right claim that additional review mechanisms are unnecessary or too costly, and critics on the Left continue to push for a court-based right to innocence review, the commission model offers a compromise that fairly balances the values of both finality and accuracy in the criminal justice system. At the same time, I argue, the North Carolina commission suffers from the tension – inherent in all expert agencies – between efficiency and discretion, on the one hand, and procedural fairness and accountability, on the other. I offer several suggestions for reform of commission procedures to help insure that none of these values is overwhelmed by the others. Overall, the record of the North Carolina commission demonstrates that the commission approach can provide justice where the traditional court system has failed, and, with the reforms I suggest here, it ought to be a model for states across the country.”


  • Actual Innocence Exception to Procedural Bars in Federal Habeas Cases—Supreme Court Cases, 23 A.L.R. Fed. 2d 93
    “A state petitioner seeking federal habeas review of his or her conviction or sentence must satisfy certain procedural requirements before obtaining such review. To obtain federal habeas review of a procedurally defaulted constitutional claim, the petitioner must establish either cause for the default and actual prejudice resulting from the alleged constitutional error, or that a fundamental miscarriage of justice will result if the claim is not reviewed. The fundamental miscarriage of justice exception requires a showing of ‘actual innocence.’ In House v. Bell, 126 S. Ct. 2064, 165 L. Ed. 2d 1, 23 A.L.R. Fed. 2d 633 (U.S. 2006), the United States Supreme Court addressed the standard for demonstrating actual innocence to obtain habeas review of a defaulted challenge to a conviction and, for the first time, held that a petitioner satisfied the actual innocence standard. This annotation will collect and analyze the decisions of the United States Supreme Court discussing the purpose, elements, and application of the actual innocence exception as applied to applications for federal habeas review of a procedurally defaulted challenge to a conviction or a death sentence, or as a freestanding claim of actual innocence without an underlying constitutional claim.”

1 See 250 Exonerated, Too Many Wrongfully Convicted (Innocence Project 2010). See generally Ken Strutin, Wrongful Conviction and Innocence Resources on the Internet, LLRX, June 10, 2006.

2 People v. Cole, 1 Misc. 3d 531, 532 (Sup. Ct. N.Y. Kings Co. 2003)(citation omitted)(“The issue in this case is what is a court’s role when a claim is made in a motion to vacate a judgment that the defendant did not commit the crime, although the defendant’s conviction was constitutionally and properly obtained (free-standing claim of innocence).”). See generally, Aileen R. Kavanagh, People v. Cole: Is the Incarceration of an “Actually Innocent” Person Constitutional?, 19 Touro L. Rev. 475 (2003).

3 See Glenn A. Garber & Angharad Vaughan, Actual-Innocence Policy, Non-DNA Innocence Claims, N.Y. L.J., April 4, 2008, at 4 (“A claim of actual innocence is premised on the notion that the imprisonment of an innocent person violates due process of law and the protection against cruel and unusual punishment embodied in the federal and state constitutions. Unlike most post-conviction claims, which must be based either on constitutional error or on newly discovered evidence advanced with due diligence, an actual innocence claim can stand alone irrespective of antecedent constitutional error; this type of claim is referred to as a ‘freestanding actual innocence claim.’ Moreover, unlike a newly discovered evidence claim, a claim of actual innocence can be raised at any time, and can be founded on ‘any reliable evidence,’ including hearsay and other evidence that may be inadmissible at trial.” (footnotes omitted))

4 See, e.g., Montoya v. Ulibarri, 142 N.M. 89, 91 (2007)(“[T]he continued incarceration of an innocent person is contrary to both due process protections and the constitutional prohibition against cruel and unusual punishment within the New Mexico Constitution. Therefore, we hold that a habeas petitioner may obtain relief if he can establish by clear and convincing evidence that no reasonable juror would have convicted him in light of new evidence.”). See generally James R. Acker and Catherine L. Bonventre, Protecting the Innocent in New York: Moving Beyond Changing Only Their Names, 73 Alb. L. Rev. 1245, 1349 (2010)(“Notably, some trial courts in New York have recognized actual innocence as a ground for post-conviction relief under the state’s criminal procedure law. This is so notwithstanding the fact that no appellate court in New York has expressly decided that such a ground for relief exists.”)(footnote omitted).

5 See, e.g., N.Y.A. 9736B, 233rd Sess. (2010); N.Y.S. 6234C 233rd Sess. (2010)(“Establishes the actual innocence justice act of 2010; clarifies that convicted persons who can demonstrate a reasonable probability that they are innocent will have the right to challenge their convictions under the law, notwithstanding any other procedural or technical provisions of law that would have prevented them from doing so. Establishes the actual innocence justice act of 2010; clarifies that convicted persons who can demonstrate a reasonable probability that they are innocent will have the right to challenge their convictions under the law, notwithstanding any other procedural or technical provisions of law that would have prevented them from doing so.”)

6 But see, e.g., Justice for All Act of 2004 (18 U.S.C. S 3600) (provides an opportunity for “post-conviction testing of DNA evidence to exonerate the innocent”).

7 See DA’s Office v. Osborne, 129 S. Ct. 2308, 2321-2322 (2009)(“As a fallback, Osborne also obliquely relies on an asserted federal constitutional right to be released upon proof of ‘actual innocence.’ Whether such a federal right exists is an open question. We have struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would pose and the high standard any claimant would have to meet. House, 547 U.S., at 554-555, 126 S. Ct. 2064, 165 L. Ed. 2d 1; Herrera, 506 U.S., at 398-417, 113 S. Ct. 853, 122 L. Ed. 2d 203; see also id., at 419-421, 113 S. Ct. 853, 122 L. Ed. 2d 203 (O’Connor, J., concurring); see also id., at 427-428, 113 S. Ct. 853, 122 L. Ed. 2d 203 (Scalia, J., concurring); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 159, n. 87 (1970). In this case too we can assume without deciding that such a claim exists, because even if so there is no due process problem. Osborne does not dispute that a federal actual innocence claim (as opposed to a DNA access claim) would be brought in habeas.”)

8 See In re Davis, 565 F.3d 810, 827 (11th Cir. 2009)(“Since Davis has failed to meet either of the statutory requirements found in AEDPA, 28 U.S.C. S 2244(b)(2)(B), we are constrained to deny him leave to file a second or successive petition. But because Davis still may file a habeas corpus petition in the Supreme Court, pursuant to its original jurisdiction, we shall continue the stay of execution for 30 days from the date of the filing of this opinion.”)

9 See In re Davis, 130 S. Ct. 1 (2009)(“The petition for a writ of habeas corpus is transferred to the United States District Court for the Southern District of Georgia for hearing and determination. The District Court should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.”)

10 See Davis v. Terry, No. 10-14534 (11th Cir. Nov. 5, 2010) (Only avenue of appeal open to Davis is directly to the U.S. Supreme Court). See also Lyle Denniston, Troy Davis Appeal Right Clarified, SCOTUSblog, Nov. 6, 2010.

11 In re Davis, 2010 U.S. Dist. LEXIS 87340, at 217 (S.D. Ga. Aug. 24, 2010) (Slip op. pp 1-62; pp 63-174).

12 See House v. Bell, 547 U.S. 518, 554 (2006) (“In addition to his gateway claim under Schlup, House argues that he has shown freestanding innocence and that as a result his imprisonment and planned execution are unconstitutional. In Herrera, decided three years before Schlup, the Court assumed without deciding that ‘in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.’ 506 U.S., at 417, 113 S. Ct. 853, 122 L. Ed. 2d 203; see also id., at 419, 113 S. Ct. 853, 122 L. Ed. 2d 203 (O’Connor, J., concurring) (‘I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution’).”)

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