What happens if I establish factual innocence?

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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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UPDATED: Jul 15, 2021

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If you establish factual innocence, the court and law enforcement agencies involved in your charge seal and destroy records relating to the offense. The act seems similar to, but is legally different from an expungement. There is a waiting period between the granting of your petition and the destruction of records. The waiting period varies according to the state, and can be up to several years. Usually, you are required to maintain a clean record during the waiting period. If you are charged with another offense in the meantime, your petition may be dismissed with or without prejudice. If it is dismissed without prejudice, you may petition again. If it is dismissed with prejudice, you have lost your opportunity to establish factual innocence with regard to this charge.

Filing a Factual Innocence Petition

State law and the facts of your case determine the institutions with which you will file a petition. You may only have to file with the court. Alternatively, you may have to file with all of the parties, which have kept records relating to your charge. These can include the court, the law enforcement agency, which arrested you, and the law enforcement agency, which booked you into custody at the jail. The last two agencies may be different, depending on your state’s laws regarding booking. If you establish factual innocence with only one institution, other institutions may still have records relating to your charge. Go over the statute regarding factual innocence carefully. Make sure you have filed all of the required paperwork with the necessary parties.

Documentation for Factual Innocence Finding

If a court holds a hearing on your motion and finds in your favor, there will be an official court determination that you are factually innocent. The determination will be in the form of a document. Examples include a declaration signed by a judge or a court record. Keep a copy of this document to counter inaccurate information. Employers sometimes purchase outdated criminal records from commercial “background check” databases.

Factual Innocence After Conviction

Some states allow you to establish factual innocence after you have been convicted. In certain situations, a finding of factual innocence may make you eligible to receive money from the state. The money is primarily meant to compensate you for time wrongfully spent incarcerated. Courts typically consider claims for financial recovery after finding a defendant factually innocent. An experienced criminal defense attorney can help you determine whether you have a valid claim for financial recovery.

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