How do you prove your innocence after being convicted? Ask the lawyer

Q: There are people who have spent time in prison, some for many years, who later are released because they were innocent. How do you prove you were innocent after you were convicted of a crime?

D.T., Mission Viejo

A: The integrity of our criminal justice system depends on its accuracy — a fair trial that results in convicting the guilty and clearing the innocent.  Unfortunately, and very sadly, wrongful convictions occur. This means an individual was factually innocent, but convicted of the charges, and/or that there were procedural errors that violated the rights of the convicted defendant.

First, there is a direct appeal process after conviction, which may run its course. Once the individual has reached his or her final appeal stage, a “writ of habeas corpus” may be pursued. This involves setting forth the basis or bases to show the individual is entitled to relief from the conviction, such as because of prosecutorial misconduct, ineffective assistance of counsel or due process violations.

The “actual innocence” claims we read or learn about often arise from fresh evidence. This is in addition to the grounds for habeas corpus referenced above. One of the important ways of establishing innocence today is post-conviction DNA testing.  Biological evidence retained in cases from the pre-DNA period may be retested.  Samples that did not provide conclusive results then are now subject to more advanced analysis.

Thus, a new trial may be in order; or the prosecutor and/or the court declares that the charges should be dismissed. In some instances, a state governor may take steps to free the wrongfully convicted. To be certain, considerable effort typically goes into overturning a conviction. Thankfully, there are some groups and lawyers who dedicate themselves to this heavy, but very important and challenging task.

Q: People are going to trial, some after a lot of publicity. They are deemed guilty in the eyes of the public. So, where does this notion “presumed innocence” come from? What does it even mean?

P.C., Van Nuys

A: The presumption of innocence is real, yet unfortunately there is often a cynicism now in cases based on pretrial publicity or folks simply jumping to a conclusion. Have you heard someone say, “He just looks guilty”?

The presumption of innocence signifies that a defendant in a criminal case is assumed to be innocent, until proven guilty. Keep in mind that guilt has to be proven beyond a reasonable doubt (which is a substantial burden of proof). The prosecutor has to demonstrate the defendant is guilty of each element of the crime.

The U.S. Constitution does not contain a provision for presumption of innocence. Instead, it has developed through statutes and court decisions (one being the U.S. Supreme Court case of Taylor v. Kentucky).

The presumption of innocence is fundamental to a fair trial. Even so, the presumption does not mean a person who is charged with a crime will remain out of jail until the trial has concluded. Some persons can be held in custody pending the outcome of the criminal trial.

Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator.  It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.

Source: Orange County Register