In what types of cases can a factual innocence order be obtained?

The types of cases in which you can obtain a factual innocence order vary by state. Of the few states that have enacted laws allowing for a petition of factual innocence, most do not have restrictions on cases within a certain category of their penal code. So, technically speaking, you could potentially get an order of factual innocence in just about any case including burglary, robbery, drug sales, gun charges, and even domestic violence accusations.

Crimes that rely on the complaint of a single layperson (non-expert) are more likely to generate factual innocence findings--such as domestic violence, sexual offenses, and spiteful accusations arising out of neighbor feuds or business dealings gone sour. Other factual innocence cases may include false accusations of child molestation that arose out of spite during an ugly divorce.

Depending on the facts of your case, you may want to consider whether an order of factual innocence is right for you. For example, if your ex-girlfriend (or boyfriend) previously accused you of domestic violence and then later dropped the charges claiming that she lied in her police statement, and you are on good terms with her, you probably have a better chance of getting a finding of factual innocence. Keep in mind that you have the burden of proof and the attorney for the state will have an opportunity to cross-examine your witnesses and evidence. If you are not on good terms with your ex-girlfriend and you try to call her as a witness, she may end up testifying that she was pressured and threatened by you into signing the affidavit of non-prosecution. Instead of obtaining an order of factual innocence, you may end up getting new charges, like witness tampering or obstruction of justice. 

Instead of focusing on the penal code to determine the type of case that is eligible for factual innocence orders, some states focus on your status in the case. In these states, the types of cases that are eligible for factual innocence orders are those where you are the victim of identity theft. If someone else has used your identity to commit a crime and as a result was arrested or convicted using your identity, then you can petition for a factual innocence order. In these states, you cannot petition for a finding of factual innocence if you are actually the person accused. In the case discussed above where your girlfriend falsely accused you of domestic violence, if you reside in one of these states, you could not obtain a factual innocence order because you were not a victim of identity theft. Even though you may not be able to obtain the factual innocence order, you should still visit with an attorney about other options. Most states will provide other methods like writs and petitions to expunge which may also help you clear your criminal record.

Before you file a petition for factual innocence and request a court date for your petition, review the facts of your case with a lawyer to make sure that your request does not backfire on you.