Being factually innocent of a crime simply means that you did not commit the crime. The term is used in several contexts. Generally, it means that there are facts that show that you did not commit, or could not have committed, the crime you were accused of committing.
Some states, such as California, allow defendants to prove their factual innocence to seal their arrest records.
What does factual innocence mean?
Broadly speaking, factual innocence means that you are innocent of the crime that you have been accused of committing. You can prove your factual innocence by showing either that you:
- did not commit the crime, or
- could not have committed the crime.
You can prove this:
- before you have been charged for the offense,
- after you have been charged but before trial,
- during the trial,
- on appeal, or
- in a later court hearing.
For example: Daniel has been convicted of rape. He appeals his conviction but it gets affirmed. Years later he works with a new criminal defense lawyer who gets the case reopened. At the hearing, they show that Daniel’s DNA does not match the DNA found on the victim. This means that Daniel did not commit the crime.
For example: Bernadette returns home from a vacation in Japan to find that her car has been stolen. Then police arrive and arrest her for driving under the influence (DUI). She shows her plane tickets, credit card statement, and other evidence that shows that she was in Tokyo when whoever was driving her car got pulled over for drunk driving. This helps Bernadette prove that she could not have committed the offense.
However, in some states, factual innocence can be the term for a court process in which you have the opportunity to prove that you did not commit the crime you were charged with committing.
Am I factually innocent if I was not convicted?
Not necessarily. Factual innocence means that you did not actually commit the crime. People who are not factually innocent can avoid a conviction, often by:
- raising a reasonable doubt of their guilt in a jury trial and securing an acquittal,
- pleading guilty in order to make use of a diversion program that, if completed, will dismiss their case without a conviction, or
- showing that law enforcement violated one of their civil rights.
Many of these people will have actually committed the crime. However, they will not be convicted for it. Because they committed the offense, they are not factually innocent.
Additionally, people who are factually innocent can be wrongfully convicted. The criminal justice system can wrongfully convict these innocent people in a variety of ways:
- a suspect being held on bail can choose to plead guilty to a crime that they did not commit in order to be let go,
- a defendant can plead guilty to a lesser criminal offense that they did not commit in order to avoid a trial for a more severe offense, or
- the jury at a criminal trial can be persuaded by the prosecutor’s case, even though it is not what happened.
Even though these people were factually innocent, they can still end up being convicted. Wrongful convictions like these happen all the time.
How can I file a petition for factual innocence motion in California?
A very limited number of states have a court process that gives defendants the opportunity to prove their own factual innocence. California is one of them. California Penal Code section 851.8 PC lets people who were not convicted file a petition for a certificate of factual innocence. You would then have the burden of proof to show that you were factually innocent in the criminal case. If you can successfully show that you were not guilty, law enforcement agencies have to seal and then destroy records of your arrest.
You can seek a certificate of factual innocence if:
- you were detained by police but were never arrested,
- you were arrested but were never charged,
- you faced criminal charges but they were later dismissed, or
- you were charged and tried for the offense but were never convicted.
All of these circumstances will leave you with a criminal record, often an arrest record. This criminal background is publicly available. If someone else finds it, they can discriminate against you or take important opportunities away from you.
Filing a petition for factual innocence and then proving your case can get the records sealed.
You can file a petition for factual innocence with the law enforcement agency that had jurisdiction over the case. You have 2 years from the date of the arrest to file it. The petition has to show that you were arrested or detained without reasonable cause. You can do this by providing exculpatory things like:
- witness testimony or affidavits,
- police reports,
- crime scene photos,
- surveillance video,
- DNA evidence, and
- cell phone records.
If you present evidence that suggests that there was no reasonable cause for the arrest or detention, the burden of proof shifts. The district attorney representing the police department is then given the opportunity to rebut your claim with evidence that there was reasonable cause. The judge will then issue an opinion.1
If the judge decides that there was no reasonable cause for the arrest or detention, law enforcement agencies, including the U.S. Department of Justice, have to seal the records of the arrest from the public eye for 3 years. After this time, the records and the petition get destroyed.2 This includes all:
- arrest reports,
- mugshots,
- court records,
- evidence collected in the case, and
- booking information.
What are the benefits of filing it?
A finding of factual innocence will lead to your arrest records getting sealed and destroyed. This takes them out of the public eye, similar to the process of expungement. Once sealed, the arrest records will not be discovered in a background check. These checks are frequently conducted by private parties and companies whenever you:
- apply for a job,
- apply for a professional license,
- request a mortgage loan from a bank,
- apply for an apartment, or
- submit an application to a school or college.
If the background check reveals an arrest record, the application is more likely to be denied, even if it was just for a misdemeanor. Even if the application does get accepted, it may have additional terms or conditions or limitations on it.
Filing a petition for factual innocence gives you the opportunity to avoid the negative consequences of having a criminal background.
Clean Slate Laws
Note that as of July 1, 2023, most arrest and conviction records will be cleared automatically (a process called “automatic relief”) pursuant to Clean Slate laws:
- Misdemeanor arrests should be sealed after 1 year if there are no criminal charges, and felony arrests should be sealed after 3 years if there are no criminal charges.
- Cases that get dismissed will be cleared immediately.
- Convictions of cases where you are granted probation should be cleared when the case closes.
- Otherwise, misdemeanors convictions get cleared 1 year after the case ends, while felony convictions get cleared 4 years after the case ends. (This does not apply to serious, violent, or sex offender felonies.)3
Establishing an attorney-client relationship with a criminal defense attorney from a reputable criminal law firm with a local law office is the best way to prove your case and obtain these important benefits.
