Can I get a factual innocence order if the victim recants their testimony?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 15, 2021

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Getting a factual innocence order to clear an arrest record will depend on the evidence the arrested party presents and any contradictory evidence that the prosecutor presents in response to the petition.

In a criminal case, the state has the burden to prove that the defendant did something in violation of the law. The reverse is true when a party petitions for factual innocence. In this case, as the petitioner, or movant, for a factual innocence order, a party will have the burden to show that no reasonable person would think they were guilty of the crime that caused their arrest.

This standard is meant to prevent orders of factual innocence in cases dismissed because of difficulty proving guilt, because a witness was threatened away, or in the case that someone was acquitted at trial, but is likely guilty. As such, the circumstances of the case must show that the part was actually innocent. It’s not enough for the person to show that the victim or a witness now remembers things differently or has somewhat changed their story.

If the witness is going to testify, they should be willing to say very clearly that the accused did not do whatever they previously accused them of doing.

After presenting evidence for the factual innocence order, the prosecutor for the state will be given the chance to present evidence opposing the motion for factual innocence. They can present the testimony of officers that made the arrest. The officers may, for example, testify that the witness was very sure of the crime at the time of the accusation. They can also admit photographs taken at the time of the arrest, such as images of bruises to the victim’s face or other injuries that prove something did in fact happen. 

Whether a petition for factual innocence is granted or denied is up to the judge. This means the judge is free to disbelieve the witness or victim’s current testimony in favor of the old testimony.

This situation comes up sometimes in domestic violence cases, where a spouse later regrets making a report and contributing to evidence which caused their partner to be arrested for domestic violence. The judge may feel that the spouse or girlfriend changed her story in an attempt to help their partner clean up their arrest record. The judge can also choose to accept the prosecutor’s information and determine that a reasonable person would think the accused was guilty and deserved to be arrested.

A factual innocence order is reserved more for those who are falsely accused. If the victim did not make a false accusation, but rather has had a change of heart and wants to help the accused clean up their record, other avenues, like a petition to expunge, are probably more appropriate. 

Before filing a petition for factual innocence, it is wise to consult with a criminal defense lawyer for help with the intent and procedural requirements for factual innocence orders in your state.

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