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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There are two general categories of circumstances where a factual innocence finding can be obtained. The first category is when you have been falsely arrested, charged, accused, or convicted of a crime. The second type of circumstance in which you can obtain a factual innocence finding is when you are the victim of identity theft.

Relief in cases where you have been falsely arrested, charged, accused, or convicted of a crime is available in states with broader rules for factual innocence petitions. California, for example, allows anyone arrested for a crime they did not commit to petition the police and/or the court for an order finding him or her factually innocent. As the petitioner for a factual innocence order, you have the burden of proof to show that no reasonable person would think you were guilty. This standard is meant to exclude those who obtained dismissals because of difficulty in proving guilt, where a witness was threatened away, or even in the case that someone is acquitted at trial, but may very well be guilty. As such, the circumstance of your case must show that you were actually innocent.

The second type of circumstance in which you can obtain a factual innocence finding is if you are the victim of identity theft. Some states have enacted statutes permitting the victim of identity theft to petition the courts for findings of actual innocence to prevent re-victimization of those people who were never involved in the commission of a crime. Two of these states are Illinois and New Jersey. 

If your circumstances involved your girlfriend accusing you of domestic battery after you both had an argument, you would not be able to obtain a factual innocence finding in Illinois, because the fact that you and your girlfriend had an argument is not in dispute, just whether you assaulted her at some time during the argument. If someone stole your checkbook and then proceeded to write a series of hot checks on your account, and that person was later convicted under your name, then you would be able to petition for a finding of factual innocence because your circumstances show that you are the continuing victim of identity theft.

Even if the factual innocence laws in your state do not help your circumstances, you should still consult with a criminal defense attorney or petition for factual innocence attorney in your state. Many states provide other means for clearing your record when you have been falsely accused. An experienced criminal defense attorney can review the circumstances of your case and help you decide which route is the best option for your situation.