13.7 Writ of Actual Innocence

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

13.7 WRIT OF ACTUAL INNOCENCE

13.701 Motion to Circuit Court for Investigation of New Biological Evidence. A person convicted of a felony or adjudicated delinquent for an offense that would be a felony if committed by an adult may seek a new scientific investigation of certain human biological evidence that resulted in the felony conviction. ²⁷⁵ Under section 19.2-327.1 of the Virginia Code, a person convicted of a felony may move the circuit court that entered the original conviction for a new investigation of any biological evidence related to his or her case if (i) the evidence or the testing method was not known or available at the time of conviction, (ii) a proper chain of custody is established, (iii) the testing is relevant and may prove the person's actual innocence, (iv) the testing involves a method employed by the Department of Forensic Science, and (v) the petition has not been unreasonably delayed. The court must hear the motion no sooner than 30 and no later than 90 days after it is filed. If the court finds that the requirements of the statute have been met, it will order the Department of Forensic Science to perform the tests.

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Section 19.2-270.4:1 of the Virginia Code provides that, upon motion of any defendant convicted of a felony, the court must order the storage and preservation, for up to 15 years or longer, of specifically identified human biological evidence or representative samples collected or obtained in the case.

13.702 Petition to Supreme Court for Writ of Actual Innocence (Biological Evidence). Under sections 19.2-327.2 through 19.2-327.6 of the Virginia Code, a person convicted of a felony upon a plea of not guilty or who was adjudicated delinquent upon a plea of not guilty of an offense that would be a felony if committed by an adult and, regardless of the plea, a person sentenced to death or convicted or adjudicated delinquent of a class 1 or 2 felony or a felony punishable by life imprisonment may petition the Supreme Court for a writ of actual innocence based on the results of testing of human biological evidence that was unknown or untested before the conviction. ²⁷⁶ The Supreme Court may order the circuit court to conduct hearings on the petition within 90 days of the order and require it to certify, within 30 days after the hearing, findings of fact on such issues as the Supreme Court directs. ²⁷⁷ The Supreme Court may grant the writ and vacate the conviction upon a finding of clear and convincing evidence that all procedural requirements have been met and that, considering all of the evidence in the case, including the new test results, no rational trier of fact would have found proof of guilt beyond a reasonable doubt. If the court finds that the evidence in the original trial record supports a finding of guilt beyond a reasonable doubt of a lesser included offense, the court will modify the conviction...