UC Law Journal


Jay Nelson


The Supreme Court has held that in order to pass through the actual innocence "gateway," capital habeas petitioners must support procedurally barred claims of actual innocence with "new reliable evidence" that was not presented at trial. The Court has not, however, defined what qualifies as "new" evidence. As a result, the circuit courts of appeals are split. Some circuits adopt what this Note refers to as the "newly-presented" evidence rule. These circuits permit habeas courts to evaluate all reliable evidence that was not presented to the finder of fact at trial. Other circuits adopt what this Note calls the "newly-discovered" evidence rule. These circuits restrict habeas review to evidence which was discovered post-conviction and could not have been discovered earlier through the exercise of due diligence.

This Note argues that courts should adopt the newly-presented evidence rule. The newly-presented rule meaningfully accounts for the circumstances that generate wrongful convictions. As such, the rule enables habeas courts to identify a higher percentage of actually innocent prisoners than the newly-discovered rule. In addition, the newly-presented rule affords due respect to federal-state comity, judicial economy, and the finality of judgments. Last, the newly-presented rule is the most consistent interpretation of the Supreme Court's actual innocence jurisprudence.

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