What is a petition for 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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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 15, 2021

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A petition for factual innocence is a document filed by a person who has been falsely accused of a crime asking a court to affirmatively find they are factually innocent. Because of the impact of criminal arrests on a person’s employment opportunities, many states have enacted statutes allowing for petitions of factual innocence.

States with Statutes Allowing for Petitions of Factual Innocence

Among the states having such laws are Illinois, Arizona, California, New Jersey, Maryland and Colorado. These laws most often involve identity theft cases, but some states, such as California, offer broader relief for people falsely arrested or prosecuted for any crime. Most states will make forms for filing a petition for factual innocence available online or at a clerk’s office.

Petition for Factual Innocence and State Laws

The relief that is available to you will depend on the state where you were convicted. For example, you cannot petition for factual innocence in California for a New Jersey arrest. In whatever state you are seeking relief, keep in mind that the petition for factual innocence is just the beginning of the process. It is the document that opens or starts the lawsuit. Just because you file the petition does not mean that your record will be cleared. You still have to request a hearing and present evidence.

All of the states with factual innocence petitions place the burden of proof on you as the movant to prove your factual innocence. If you obtain an order finding you factually innocent, most states will require you to send copies of the order to the appropriate agencies for the order to be enforced.

Petition for Factual Innocence Exceptions

A minority of states do allow petitions for factual innocence to be filed after conviction. However, a petition for factual innocence should not be confused with an appeal. If you file a petition for factual innocence instead of filing a notice of appeal after you are convicted, you could end up waiving some very important appellate rights. A petition for factual innocence is not the same as a petition to expunge. Depending on your state’s laws, you may have to file a petition to expunge after or in connection with your petition for factual innocence.

Getting Help

Because filing the wrong type of petition for factual innocence in some states can result in a waiver of other valuable rights, you should contact a criminal defense lawyer or petition for factual innocence lawyer before filing a petition for factual innocence. They can help you decide whether you qualify to file a petition for factual innocence and whether it is the best option for your situation. A criminal defense lawyer can also assist you with the procedural requirements for filing a petition for factual innocence so that you have a better chance of obtaining a factual innocence finding or final order.



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