Do I need a lawyer to file a petition for factual innocence?
UPDATED: February 26, 2020
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Strictly speaking, you are not required to have a lawyer to file a petition for factual innocence, anyone has the right to represent himself or herself. However, because the opportunity to petition in this way is a relatively new body of law, you may need a lawyer to help you understand the meaning and requirements of your petition. Not having a lawyer to represent you in your petition for factual innocence could weigh against your success.
If you have been falsely accused, a petition for factual innocence can be an effective tool for clearing your name. It is a form used to ask the court to review your evidence and decide that you are innocent of what you were previously accused of doing. Given that you may have limited opportunities to be exonerated, obtaining a lawyer can help you avoid overlooking an opportunity. Regardless of which type of petition you file, the burden of proof is generally on you. This means that you, not the state nor the prosecutor assigned to oppose your motion, are responsible for presenting credible evidence of your innocence. Failure to present your evidence correctly could result in a denial of your petition. An experienced criminal defense attorney can present your evidence in a way that will be accepted and heard by the court.
Courts are generally called upon to make findings of guilt--not actual innocence. But because arrests--even without convictions--can still impact a person’s life, a few states now allow an accused person to petition for factual innocence. The procedures and intent of petitions vary by state. Utah for example, contemplates post-conviction DNA testing--its focus is more on those who have been wrongfully accused and convicted. Illinois, however, has a petition for factual innocence procedure designed to help victims of identity theft. You should consult with an attorney to understand the requirements set out in your state’s codes and how your courts have interpreted those requirements. Non-compliance with state code can result in a rejection of your petition.
You can complete a petition with the clerk of the court. But before you file, make sure you understand the purpose of the petition you are filing and whether it fits the type of relief that you are seeking. There may be other types of relief better fit to your situation. For example, you may have a better chance of cleaning up your criminal history if you apply to have your record expunged. If you have already been convicted and learn of new evidence, a post-conviction writ of habeas corpus may be your best option. Consulting a lawyer can help you decide which route to take.
If you are successful at getting your petition granted, most states will require that you send the order of factual innocence to the right agencies. Some will also require you to submit a processing fee. An experienced criminal defense attorney can make sure that your order gets to the right agencies and entities.
Consult with a criminal defense or petition for factual innocence attorney to review the options, procedures, and guidelines for filing a petition for factual innocence.