The Dichotomy of Factual Innocence and Innocence at Law in the Exoneration Process

The efforts of numerous Innocence Projects in the United States, together with formal applications for the exoneration of the wrongfully convicted in Canada inexorably require a finding of factual innocence as a primary threshold for post-appellate review. In those jurisdictions where DNA testing is available for inmate’s fortunate enough to have such evidence to rely upon, a successful scientific result vaults over the factual innocence hurdle. For the vast majority of cases where there is no biologic evidence however, factual innocence may prove to be elusive even in the face of an acquittal which revitalizes the presumption of innocence. This paper argues that the standard of innocence at law is the fairest and most principled test to apply in the exoneration process.