Yes. If you have been wrongfully convicted of a felony in Nevada, there may be hope for clearing your name through a petition for factual innocence. This powerful tool, established just in 2019, provides a pathway to prove your innocence and vacate your conviction based on newly discovered evidence.
In this article I tell you what you need to know about petitions for factual innocence and how I can help you. Also you can listen to our informational podcast here:
What is a Petition for Factual Innocence Petition?
In Nevada, a factual innocence petition allows you to present newly discovered evidence to prove you did not carry out the offense for which you were convicted. This is different from claiming there were legal errors in your trial; instead, you are asserting that you literally did not commit the crime.
To be considered “factually innocent,” you must be able to show the following four things:
- You did not engage in the conduct for which you were convicted;
- You did not commit any lesser included offenses;
- You did not commit any other crimes connected to the facts of your case; and
- You did not engage in the charged conduct under any theory of criminal liability.1
What Counts as “Newly Discovered Evidence”?
The success of your petition for factual innocence in Nevada largely depends on presenting newly discovered evidence. This evidence must be:
- Material to proving your innocence;
- Not previously available during your trial or during any motion for a new trial; and
- More than just questioning a witness’s credibility or repeating evidence from your trial.2
Common types of newly discovered evidence include:
- DNA testing results that were not available at your trial;
- New forensic scientific evidence that undermines the scientific testimony presented at trial;
- Evidence that was discovered during an appeal that helped overturn your conviction; or
- Scientific developments that challenge the validity of forensic methods used in your case.
What Is the Process?
Filing a factual innocence petition in Nevada involves the following five steps:
- You file the petition with the court that convicted you.
- The court then reviews it to make sure it meets all requirements.
- If so, the prosecuting agency (the county district attorney or state attorney general’s office) responds within 120 days.
- After the prosecutor responds, you can respond within 30 days.
- The court holds a hearing if it finds you raised a genuine issue of factual innocence and then renders a ruling.
You can file a petition for factual innocence anytime after the statute of limitations has expired for making a motion for a new trial based on newly discovered evidence. This is typically two years after your guilty verdict.
Note that if the court denies your factual innocence petition, you can appeal.3
What Goes in the Petition?
In Nevada, your petition for factual innocence must include:
- A sworn statement by you asserting your innocence;
- Supporting affidavits or credible documents;
- Specific identification of the newly discovered evidence; and
- An explanation of why this evidence was not available during your trial.
To succeed, the petition must prove your factual innocence by “clear and convincing evidence” – a high standard that requires strong, well-documented evidence.
Note that “clear and convincing evidence” is a lower standard than “proof beyond a reasonable doubt,” which is the bar prosecutors must have met for you to be found guilty at trial.4
What happens if I win?
If your petition for factual innocence succeeds in Nevada, the court will:
- Vacate your conviction;
- Issue an order declaring your factual innocence; and
- Order the sealing of all records related to your case.5
This outcome goes beyond just clearing your record. It is an official recognition that you were wrongfully convicted and are truly innocent of the crime.
Have a clean background check has numerous benefits, including an easier time getting:
- employment,
- professional licenses,
- education and scholarships,
- housing, and
- loans.
Do I need an attorney?
In my experience, judges are very reluctant to overturn guilty verdicts, so it is vital you have a skilled criminal defense attorney to persuade the judge to throw out your conviction. I know how to:
- Evaluate whether your case qualifies for a factual innocence petition,
- Gather and present compelling newly discovered evidence in your petition;
- Work with experts to support your case;
- Meet all technical legal requirements and navigate complex procedural rules; and
- Present your case effectively at hearings.
If you go it alone without experienced legal counsel, you risk making errors that disqualify you from getting your conviction overturned despite your innocence. A good attorney maximizes your chances of success.6
Additional Reading
For information about other tools of post-conviction relief in Nevada, refer to our following articles:
- Motion to withdraw a plea – Judges rarely grant these if you took your plea freely and voluntarily.
- Motion for a new trial – This acts like a do-over where your original trial verdict is thrown out.
- Appeals – This is when you ask a higher court to review your trial record for “reversible errors.”
- Writs of habeas corpus – This is typically your last resort when fighting a criminal case, and your main argument is that you are being incarcerated unlawfully.
- Governor’s pardon – This is an official “forgiveness” of your crime, and it is the only way to get your gun rights restored in Nevada.
Legal References
- NRS 34.920.
- NRS 34.930.
- NRS 34.960. NRS 34.970. See note 2. See, for example, Maki v. State (Nev.App. 2022) 513 P.3d 538 (unpublished).
- Same.
- Same.
- See, for example, Sanders v. State (Nev. 2023) 535 P.3d 1200 (unpublished).