10.4 Writ of Actual Innocence

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

10.4 WRIT OF ACTUAL INNOCENCE

10.401 In General. The actual innocence statutes were created as an exception to the 21-day rule. ¹³² Unlike a "motion to vacate" or a habeas corpus petition, which are collateral attacks and civil proceedings, writs of actual innocence are criminal proceedings. ¹³³ The petitioner must prove

by clear and convincing evidence, that no rational trier of fact would have found proof of guilt beyond a reasonable doubt. In other words, a petitioner's evidence must do more than establish the theoretical possibility that a rational fact finder would choose to acquit; it must establish such a high probability of acquittal, that this Court is reasonably certain that no rational fact finder would have found him guilty. ¹³⁴

10.402 Preservation and Retention of...