5 Facts About a Petition for Factual Innocence
- An Affidavit of Factual Innocence is a document issued by a court to certify the factual innocence of an individual.
- It applies in cases whereby one was arrested but no charges were filed against him or her, when one is charged but is not convicted and the case against him or her is dismissed, or when one is acquitted of all charges.
- An affidavit of factual innocence is paramount in cases of identity theft.
- The affidavit of factual innocence is applicable in a wide range of cases such as burglary, robbery, identity theft, and domestic violence.
- Crimes that rely on the complaint of a layperson are highly likely to give rise to factual innocence findings (e.g. crimes such as domestic violence and child molestation).
The laws of factual innocence generally vary from state to state.
In some states, they do not focus on the penal code to provide eligibility for the affidavit of factual innocence; rather they focus on one’s status in the case.
In this state, if you are the victim of identity theft you stand a higher chance of getting an affidavit of factual innocence.
This state does not provide an affidavit of factual innocence if you are the one being accused.
However, before you file, it’s advisable to sit down with your lawyer and review the facts of your case to avoid circumstances whereby the petition backfires on you.
How long do you have to file your motion?
A petition for an affidavit of factual innocence can be filed up to two years from the date of arrest or filing of the accusatory plea.
However, if one has passed the deadline and he or she can give substantial reasons as to why the deadline should be waived, then he or she can still apply for an affidavit of factual innocence.
Several agencies have been put in place to assist those who are victims of identity theft such as the Monder Law Group.
Agencies like this have numerous lawyers and paralegals who sit down with their clients and review the case, thereby sighting whether or not the case is eligible for an affidavit of factual innocence.
Can a certificate of Factual Innocence clear your record?
After filing for the petition the court will set a date for the hearing.
During the hearing the attorney general will try to argue the innocence of the accused by providing evidence–such as police reports.
If the petitioner is indeed innocent then the court will order the department that carried out the arrest to seal its records of the case and to destroy them after three years.
More on establishing legal innocence: