Legal Dictionary

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Factual Innocence

Factual Innocence refers to a remedy in the criminal justice system available to an individual who was arrested and charged with a crime but ultimately had the charges dismissed (i.e., the case was rejected by the District Attorney's or City Attorney's office).

Under California Penal Code Section 851.8, an innocent person arrested for or charged with a crime, may be able to have the records sealed by obtaining a declaration of factual innocence. An arrestee is “factually innocent” only if no reasonable cause exists to believe he or she committed the offense (California Penal Code Section 851.8(b)). The remedy for a finding of factual innocence is that all records relating to the arrest and charges must be sealed for 3 years and must be subsequently destroyed. The arrest is deemed never to have occurred (California Penal Code Section 851.8(b)). The petition for factual innocence should be filed no later than 2 years after the date of arrest or accusatory pleading. The court in some cases may permit later filing for good cause.

Not all petitions for factual innocence are granted by the court. The burden on the petitioner (person filing the claim/petition) in order to prevail on the petition is high.

The evidence must show that “no person of ordinary care and prudence [would] believe or conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty…” (People v Adair 129 CR2d 799 (2003)). In other words, if the court believes that the defendant was in some way responsible for or contributed to the crime that he or she was arrested for, then there would be no finding of factual innocence. A case that was ultimately rejected or not filed by the prosecutor's office does not equate to factual innocence. Some evidence of a crime, but just not enough to ultimately obtain a conviction, does not equate to factual innocence. A skilled and experienced California criminal defense lawyer in your corner will improve your chances of prevailing on your petition for factual innocence.