4.3 Writs of Actual Innocence

• Library: Appellate Practice - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

4.3 WRITS OF ACTUAL INNOCENCE

4.301 Writs of Actual Innocence Based on Biological Evidence (Va. Code Title 19.2, Chapter 19.2). A 2002 constitutional amend-ment, ¹⁶ together with associated legislation (enacted in 2001) ¹⁷ and Virginia Supreme Court Rule 5:7B, ¹⁸ authorize petitions for writs of actual innocence based on previously unknown or untested human biological evidence. The petition may be filed by any incarcerated person who has been convicted of a felony upon a plea of not guilty; by any person who was adjudicated delinquent by a circuit court of an offense that would be a felony if committed by an adult, upon a plea of not guilty; or by any person, regardless of plea, who has been sentenced to death or convicted of a class 1 felony, a class 2 felony, or any felony for which the maximum penalty is imprisonment for life. ¹⁹

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Section 19.2-327.1 of the Virginia Code allows a person who was convicted of a felony or adjudicated delinquent by a circuit court of an offense that would be a felony if committed by an adult ²⁰ to apply to the circuit court that entered the original conviction or adjudication for a new scientific investigation of human biological evidence related to the case that resulted in the conviction or adjudication. If the circuit court finds by clear and convincing evidence, after a hearing, that all of the requirements of that statute have been satisfied, it must order the Department of Forensic Science to conduct appropriate tests. The requirements of that section are lengthy and detailed and must be reviewed carefully before proceeding.

Procedural elements of the petition for a writ of actual innocence under Chapter 19.2 procedure are set out in Virginia Supreme Court Rule 5:7B. Briefly, the petition must be filed within 60 days after exculpatory test results are obtained from the Department of Forensic Science, and the Attorney General must file a responsive pleading within 30 days after service of a petition. If requested by the Attorney General, the Supreme Court will issue a writ of certiorari for the production of all or part of the record below. ²¹

Further proceedings are to be conducted in accordance with the orders of the Supreme Court. If the Supreme Court determines that an evidentiary hearing is necessary, it may order the circuit court to conduct a hearing within 90 days and to certify findings of fact with respect to such issues as the court directs. The circuit court must file the record and its...