New Evidence of Innocence is another common argument in a post-conviction argument. The United States Supreme Court, in Schlup v. Delo, states that actual innocence allows the reviewing tribunal to consider the probative force of relevant evidence that was either excluded or unavailable at trial. But will any new evidence suffice? Not exactly. The Court in Schlup v. Delo, also tells us that “[a] claim that a constitutional error has caused the conviction of an innocent person requires a petitioner to support the allegations with new reliable evidence.” New reliable evidence means that the evidence was not presented at trial. Such new reliable evidence can consist of exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.
So, once there is new reliable evidence, Schlup v. Delo also provides that “…a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” This, however, is not another jury trial. The Supreme Court in House v. Bell states that it is “the court [that] must make a probabilistic determination about what reasonable, properly instructed jurors would do.” This is not to say that the Court is making an independent factual determination about what likely occurred, but rather the Court is assessing the likely impact of the evidence on reasonable jurors.
In addition to case law, jurisdictions have enacted statutes that consider new evidence of innocence. For example, N.C. Gen. Stat. § 15A-1419 states that, “A defendant raising a claim of newly discovered evidence of factual innocence … may only show a fundamental miscarriage of justice by proving by clear and convincing evidence that, in light of the new evidence, if credible, no reasonable juror would have found the defendant guilty beyond a reasonable doubt…”. As stated in Schlup v. Delo, the Court must presume that a reasonable juror would consider fairly all of the evidence presented. The Court must also presum that such a juror would conscientiously obey the instructions of the trial court requiring proof beyond a reasonable doubt. Because each jurisdiction may have their own statutes that consider new evidence of innocence, it is important that new evidence of innocence is evaluated on a case-by-case basis.
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