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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UPDATED: Feb 26, 2020

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Establishing your factual innocence usually involves convincing the clerk of court and a law enforcement agency to seal and destroy your criminal history related to criminal charges or arrests. However, having records related to one matter destroyed does not mean that your whole criminal history is erased. The phrase “proving factual innocence” is somewhat misleading as it does not require a trial, although it may require a hearing.

States have different rules about how to establish factual innocence. Start by asking the clerk of court and the law enforcement office involved in your arrest how to begin the process. Typically, there are three situations in which you would want to establish factual innocence. The first is if you were arrested, but no charges were filed against you. The second is if you were arrested, charges were filed, but later the charges were dismissed. The third is if your case went to trial but you were acquitted. There is, however, a fourth situation in which you would seek factual innocence. Say you were convicted, but new evidence was discovered after your trial or sentencing. In these cases, some states, such as Utah, will allow for a hearing. These post-conviction hearings are similar to a trial and can often be quite complex and require the assistance of an experienced criminal defense attorney.

In the case that you were arrested but no charges were filed, you would likely file a petition for factual innocence with the law enforcement agency involved in your arrest. If the agency denies the petition, you would present the petition to the court that would have heard your case. For example, if you were accused of a misdemeanor, you would present the petition to a judge who hears misdemeanor cases. If you were charged but the charges were dismissed, you would likely file a petition with the court that heard your case. If you were found not guilty at trial, immediately after the trial, you would likely make a motion to establish factual innocence to the judge who heard your case.

Courts have the power to deny your petition or motion to establish factual innocence, typically using the “reasonable cause” standard. This is to see whether an ordinary person, acting under normal circumstances, would have seen reasonable cause to arrest or file charges against you for involvement in an offense.

If you have further questions about proving factual innocence contact a criminal defense attorney for clarification.