Safeguards in the Twenty-First Century, 2006 Wis. L. Rev. 479, 514 (2006); Gisli H. Gudjonsson, The
Science-Based Pathways to Understanding False Confessions and Wrongful Convictions, 12 Frontiers
Psychol. Feb. 2021. Further, Grimm presents a report from Dr. Richard Leo, Ph.D., J.D. Dr. Leo is a subject
matter expert in false confessions and reviewed both the content and context of Grimm’s confession.
DECISIONAL STANDARD
“A person seeking a writ of actual innocence faces a daunting task; the process begins not with a
presumption that a petitioner is innocent, but rather, that he or she is guilty.” Haas v. Commonwealth, 74
Va. App. 586, 624 (2022); see also Tyler v. Commonwealth, 73 Va. App. 445, 459 (2021) (recognizing that
this Court begins “with the presumption that [petitioner]’s conviction, the result of a full criminal trial that
has been affirmed on direct appeal, is correct”). “Because the petition is filed with us in the first instance, we
are not reviewing a judgment below in the traditional appellate sense, and consequently, there is no appellate
standard of review to apply.” Tyler, 73 Va. App. at 458. “Rather, actual innocence petitions ‘present[] one of
the rare situations in which the General Assembly has charged an appellate court with engaging in factual
222
evaluation.” Id. (alteration in original) (quoting Dennis v. Commonwealth, 297 Va. 104, 127 (2019)).
Therefore, “[s]itting ‘as a court of original jurisdiction[,]’ we have ‘the same authority to weigh and
evaluate documentary and physical evidence as a trial court would have.” Id. at 458-59 (second alteration in
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original) (quoting Haas v. Commonwealth, 283 Va. 284, 292 (2019)). In exercising such jurisdiction, this
Court must consider “the record of any trial or appellate court action,” Code § 19.2-327.11(D), and “the
petition, the response by the Commonwealth, previous records of the case, the record of any hearing held
under this chapter, and, if applicable, any findings certified from the circuit court pursuant to an order issued
under this chapter[.]” Code § 19.2-327.13. The purpose of this review is “to allow us to perform the fact-
finding function the General Assembly assigned us in the statutory scheme-determining whether the
petitioner has produced sufficient new evidence to establish the statutory requirements to the requisite level of
proof to warrant overturning a presumptively valid conviction.” Tyler, 73 Va. App. at 459.
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Source: Elections - nytimes.com
