NOTE: This material was compiled in 1999.
Is There a Constitutional Right to Demonstrate Actual Innocence That Provides a Basis for Access to Testing Through Habeas Corpus Review in Federal or State Court?
In Herrera v. Collins, 506 U.S. 390 (1993) the Supreme Court addressed the question of whether it would violate the 14th Amendment's due process clause or the Eighth Amendment's prohibition against cruel and unusual punishment to execute an inmate who claimed he could prove, through newly discovered evidence proffered in a Federal habeas petition, that he was "actually innocent." Herrera had to present his newly discovered evidence in a Federal habeas petition because he was time barred from pursuing the claim in the Texas State courts.
In a plurality opinion, the Supreme Court rejected Herrera's habeas petition on the grounds that his factual showing was insufficient, but strongly suggested that it would violate the Constitution to punish someone who could make a "truly persuasive" showing of actual innocence.[1] See Herrera, 506 U.S. at 417 (plurality opinion of Chief Justice Rehnquist). See also 506 U.S. at 427 (O'Connor, J., concurring). Justice White, in a concurring opinion, and Justice Blackmun, writing for Justices Souter and Stevens in a dissenting opinion, set somewhat lower thresholds: According to Justice White, relief should be granted when, in light of the newly discovered evidence, "no rational trier of fact could [find] proof beyond a reasonable doubt." 506 U.S., at 429 (citation omitted); and Justice Blackmun concluded "that, to obtain relief on a claim of actual innocence, the petitioner must show that he probably is innocent." 506 U.S. at 442.
The discussion in Herrera about "actual innocence" is quite hypothetical. Justices Scalia and Thomas expressed doubt that the Court would ever again have to confront this issue, "since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon." 506 U.S. at 428. Several justices pointed to the evidential infirmities that occur over time as making it unlikely that a petitioner could make the requisite showing. This assumption was certainly reasonable under the facts of Herrera, which vividly illustrate why courts fear stale post-trial claims of innocence.[2]
Now, however, in some cases the possibility of demonstrating actual innocence has moved from the realm of theory to the actual with the availability of postconviction DNA testing. The opinions in Herrera may, therefore, provide a reasonable basis for an inmate who cannot obtain relief in State court to seek Federal habeas relief, even though, as noted in Herrera, it had long been the rule that newly discovered evidence claims do not state a ground for Federal habeas relief absent an independent constitutional violation occurring in the underlying State criminal proceeding.[3] Herrera, 506 U.S. at 399. Indeed, Federal courts have been quite willing to order DNA testing to supplement independent constitutional claims. See, e.g., Toney v. Gammon, 79 F.3d 693, 700 (8th Cir. 1996); Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997); Jenkins, 1992 WL 32342, at *1.
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[1] The punishment in Herrera was death, but the same constitutional arguments would apply to lesser punishments.
[2] Petitioner claimed 10 years after his conviction that his brother, who had died 6 years previously, was the actual killer. To prove this claim petitioner proffered a number of inconsistent affidavits. Proof of guilt at trial had been extensive, including a signed letter by petitioner found in his possession at the time of his arrest in which he admitted his guilt. 506 U.S. at 421–424 (O’Connor, J. concurring).
[3] See Susan Bandes, Simple Murder: A Comment on the Legality of Executing the Innocent, 44 Buff. L. Rev. 501, 516–518 (1996).
