JUSTICE FREEMAN
delivered the opinion of the court:
The question in this case is whether due process is implicated in a claim of innocence based upon new evidence so as to permit the claim to be raised in a petition under the Post-Conviction Hearing Act (725 ILCS 5/122 — 1 et seq. (West 1992)). We hold that it is.
BACKGROUND
In 1982, Kurtis Washington was sentenced to 25 years in prison for murdering Tony Hightie. Hightie had been murdered outside his home in Chicago shortly after 9 p.m. on May 9, 1980. Washington was implicated in the crime by Donna McClure, Hightie’s girlfriend, and Ronald Tapes.
McClure and Tapes witnessed the murder. At trial, they said that they had been sitting in a parked car near Hightie’s home when they were approached by a man. The man said that he was looking for someone named Will. When McClure and Tapes proved no help, the man approached Hightie just as he left his home. Hightie had been wearing a jacket and hat that belonged to Tapes’ brother who was named William. McClure and Tapes said that after a few words with Hightie, the man shot him. The man, McClure and Tapes said, was Washington.
Washington’s defense was that he had been at a grocery store at the time of Hightie’s murder. The store cashier, a person who had accompanied Washington, and Washington’s mother all testified to that fact.
The appellate court affirmed the conviction and sentence on direct review (No. 1 — 82—1868 (unpublished order under Supreme Court Rule 23)). In 1990, Washington filed a post-conviction petition, alleging nine grounds of error, six of which asserted ineffective assistance of trial counsel. See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§ 2, 8.
One of the grounds was that Washington’s trial counsel, a private attorney who also served as Washington’s appellate counsel, failed to investigate evidence that someone other than Washington murdered Hightie. The claim was supported with an affidavit of Jacqueline Martin dated March 3,1990. Evidence was permitted on that as well as the other ineffective-assistance claims.
The trial judge held an in camera hearing in which he considered Martin’s testimony. Underlying the claim at issue in this appeal is the substance of that testimony.
Martin told how Hightie had been shot after having been mistaken for someone else. Martin, who was 16 years old at the time, told how she had been present when Marcus Halsey, then her boyfriend, and Frank Caston had left Halsey’s house to revenge an earlier beating of Halsey’s brother. She, Halsey, Caston, and Gaston’s girlfriend drove in a car to an alley in a neighborhood in Chicago. She later learned that it happened to be the neighborhood where Hightie lived. Martin told how, after Halsey and Caston left the car, she had heard two gunshots, and, when the two returned, she had heard Halsey say "it was the wrong guy.” Halsey and Caston later changed clothes, discarding in another alley what they had earlier worn. Martin said that they drove to the home of one of Halsey’s sisters, where she stayed the rest of the night.
Halsey was questioned by police the next morning. Martin accompanied, him to the police station, as did Gaston’s girlfriend. At the station, Martin found in her pocket bullets that Halsey had handed to her the night before. She said that she threw the bullets away.
Martin said that after the police questioning, Halsey had threatened to kill her if she told anyone what had happened. Halsey’s threats continued, Martin said, and so she eventually stopped going to Halsey’s house. Some months later, Halsey’s brother confronted her as she was walking near a park and forcibly took her to Halsey. She said that she was kept against her will at Halsey’s house for three weeks to a month. She eventually escaped with the help of an unnamed acquaintance whom she happened to see while looking out a window. Martin said that she went immediately to her mother’s house. That same day she left for Mississippi. She stayed there for six years. Martin told how at the time of the hearing she still feared Halsey.
In view of Martin’s in camera testimony, Washington successfully sought to amend his post-conviction petition to add a tenth claim based upon the newly discovered evidence.
The trial judge denied relief under the first nine claims Washington asserted, including the ineffectiveness claim which was supported by Martin’s affidavit and testimony. Regarding that claim, the judge referred to testimony given by Washington’s defense counsel that, in preparation for trial, he had tried to contact Martin. Counsel had also testified that he believed Washington had a strong alibi defense and his strategy was to focus on that rather than to try to prove that someone other than Washington murdered Hightie.
However, the trial judge granted a new trial on the ground that Martin’s testimony was new evidence which, if believed, would have "had some significant impact” upon the jury. The State appealed. Washington cross-appealed, contesting the denial of relief on the petition’s other nine claims. The appellate court affirmed the grant of relief as to the newly discovered evidence claim without addressing the others. 256 Ill. App. 3d 445.
We granted the State’s petition for leave to appeal. Meanwhile, Washington, who had been released on an appeal bond, was charged with, pleaded guilty to, and was sentenced to probation for an unrelated offense. We revoked his appeal bond. Though Washington had failed to appear after the bond revocation, his counsel again filed a cross-appeal contesting the denial of relief under the petition’s other claims. 134 Ill. 2d R. 318(a). The State moved to strike the cross-appeal under the fugitive dismissal doctrine (see People v. Partee, 125 Ill. 2d 24, 37 (1988)). We granted that motion, leaving for this appeal only consideration of Washington’s newly discovered evidence claim. •
ANALYSIS
The claim Washington raised is a "free-standing” claim of innocence; unlike the ineffective-assistance claim supported by Martin’s testimony, the newly discovered evidence is not being used to supplement an assertion of a constitutional violation with respect to his trial. The issue is not whether the evidence at trial was insufficient to convict Washington beyond a reasonable doubt. The appellate court rejected that challenge on direct appeal. The issue is whether Washington’s claim of newly discovered evidence can be raised in a petition under the Post-Conviction Hearing Act to entitle Washington to a new trial. Post-conviction relief is Washington’s remaining hope for a judicial remedy, the time limitations of other avenues offering relief for such a claim having lapsed. See 735 ILCS 5/2-1202(c) (West 1992) (allowing such claims to be made in a motion for a new trial within 30 days); 735 ILCS 5/2-1401(c) (West 1992) (permitting such claims up to two years after a final judgment, the period being excused in certain limited situations, including "fraudulent! ]” concealment of evidence). Executive clemency, of course, would remain available to Washington. Ill. Const. 1970, art. V, § 12; 730 ILCS 5/3 — 3—13 (West 1992).
To decide the issue, we must see if either a federal or Illinois constitutional right is implicated in such a freestanding claim of innocence, since Post-Conviction Hearing Act relief is limited to constitutional claims. 725 ILCS 5/122 — 1 (West 1992). Washington argues that his claim implicates due process protections. The beginning point for addressing that argument is Herrera v. Collins, 506 U.S. 390, 122 L. Ed. 2d 203, 113 S. Ct. 853 (1993), where the Supreme Court rejected the contention as a federal constitutional matter. In light of our own constitution’s due process guaranty, we must also assess Washington’s argument as a matter of Illinois constitutional jurisprudence. See Rollins v. Ellwood, 141 Ill. 2d 244, 275 (1990).
Federal Due Process
The issue in Herrera was whether a freestanding claim of innocence following a Texas capital conviction could be raised in a habeas corpus petition in view of either the eighth amendment protection against cruel and unusual punishment or the fourteenth amendment due process clause. Herrera, 506 U.S. at 397-98, 122 L. Ed. 2d at 215, 113 S. Ct. at 859. Ten years after his conviction, Herrera claimed that his brother, who had since died, committed the crimes. The claim was supported by two affidavits. The Court said that the claim implicated neither the eighth nor the fourteenth amendment but also offered that, even if that were not the case, the claim was unpersuasive anyway. The opinion requires close study.
Looking first to the eighth amendment, the Court admitted an "elemental appeal” in the notion that the Constitution should be construed to prohibit the execution or imprisonment of the innocent. Herrera, 506 U.S. at 398, 122 L. Ed. 2d at 215, 113 S. Ct. at 859. But constitutionally, a newly discovered evidence claim had to "be evaluated in the light of the previous proceedings” in which guilt or innocence was determined. Herrera, 506 U.S. at 398, 122 L. Ed. 2d at 215, 113 S. Ct. at 859. The Court explained that once the usual constitutional safeguards for ensuring against the risk of convicting the innocent in trial proceedings were met, a conviction must mean that the person convicted is no longer "innocent” but is one "who has been convicted by due process of law.” See Herrera, 506 U.S. at 398-99, 400, 122 L. Ed. 2d at 215, 216, 113 S. Ct. at 859, 860. Recognizing a freestanding claim of innocence would amount to according "additional process.” Herrera, 506 U.S. at 406, 122 L. Ed. 2d at 221, 113 S. Ct. at 864.
In reality, a freestanding innocence claim could present but an error of fact in the trial outcome; it could not reflect the kind of constitutional violation for which habeas relief was designed. Herrera, 506 U.S. at 400, 122 L. Ed. 2d at 216-17, 113 S. Ct. at 860, quoting Townsend v. Sain, 372 U.S. 293, 317, 9 L. Ed. 2d 770, 788, 83 S. Ct. 745, 759 (1963). The claim was not, the Court reminded, one asserting that the evidence at trial was not sufficient to convict beyond a reasonable doubt. Herrera, 506 U.S. at 401-02, 122 L. Ed. 2d at 217-18, 113 S. Ct. at 861. And the Court pointed out how the claim was different from the showing of innocence needed to excuse a procedural bar under the "fundamental miscarriage of justice exception” of habeas jurisprudence. Herrera, 506 U.S. at 404, 122 L. Ed. 2d at 219, 113 S. Ct. at 862 (stating that the showing of innocence was merely a "gateway” to consideration of an otherwise procedurally barred constitutional claim). A claim of innocence itself simply was not, the Court concluded, cognizable under the eighth amendment. Herrera, 506 U.S. at 404-05, 122 L. Ed. 2d at 219, 113 S. Ct. at 862.
Turning to the fourteenth amendment, the Court noted, first, that procedural, not substantive, due process governed, for substantive due process analysis would require the petitioner, in fact, to be innocent. Herrera, 506 U.S. at 407 n.6, 122 L. Ed. 2d at 221 n.6, 113 S. Ct. at 864 n.6. But he was not, the Court explained. The petitioner had been convicted in an otherwise constitutionally proper trial. Therefore, the relevant question was not whether due process prohibited execution of an innocent person but whether it permitted judicial review of a freestanding claim of innocence. Herrera, 506 U.S. at 407-08, 122 L. Ed. 2d at 221, 113 S. Ct. at 864.
The Court said it did not, answering the question in consideration of the possible relief. As for commanding a new trial, the Court noted that it generally deferred to state "expertise” as to criminal process and procedure. Herrera, 506 U.S. at 407-08, 411, 122 L. Ed. 2d at 221, 223, 113 S. Ct. at 864, 866, quoting Patterson v. New York, 432 U.S. 197, 202, 53 L. Ed. 2d 281, 287, 97 S. Ct. 2319, 2322 (1977). The Court could not find it unfair that Texas precluded new evidence to be presented years after a conviction. Herrera, 506 U.S. at 411, 122 L. Ed. 2d at 223, 113 S. Ct. at 866. As for vacation of the death sentence, the Court noted that Texas, like all capital punishment states, including Illinois, have constitutional or statutory provisions for executive clemency. Herrera, 506 U.S. at 414 n.14, 122 L. Ed. 2d at 225 n.14, 113 S. Ct. at 867 n.14. Executive clemency, the Court explained, is the "fail safe” of our criminal justice system. Herrera, 506 U.S. at 415, 122 L. Ed. 2d at 226, 113 S. Ct. at 868.
In the last portion of the opinion, the Court nevertheless addressed "for the sake of argument” the petitioner’s claim — rejecting it — as if it were constitutionally cognizable. Herrera, 506 U.S. at 416-19, 122 L. Ed. 2d at 227-28,113 S. Ct. at 869-70. To do so, the Court proceeded under an assumption that "a truly persuasive demonstration of 'actual innocence’ ” in a capital case where there was "no state avenue open to process such a claim” would be unconstitutional. Herrera, 506 U.S. at 417, 122 L. Ed. 2d at 227, 113 S. Ct. at 869. That portion of the opinion sparked comments both in concurrence and dissent.
In her concurrence, which Justice Kennedy joined, Justice O’Connor pointed out that the analysis of the last portion of the opinion was "neither necessary” to the case "nor advisable.” Herrera, 506 U.S. at 421, 122 L. Ed. 2d at 230, 113 S. Ct. at 871 (O’Connor, J., concurring, joined by Kennedy, J.). She acknowledged the "sensitive” and "troubling” issue presented, remarking that the "execution of a legally and factually innocent person would be a constitutionally intolerable event.” Herrera, 506 U.S. at 419, 421, 122 L. Ed. 2d at 228, 230, 113 S. Ct. at 870, 871 (O’Connor, J., concurring, joined by Kennedy, J.). Yet, Justice O’Connor concluded, in a case where a jury found evidence sufficient to convict in an otherwise constitutionally fair trial, the "sole remedy was a pardon or clemency.” Herrera, 506 U.S. at 421, 122 L. Ed. 2d at 230, 113 S.’ Ct. at 871 (O’Connor, J., concurring, joined by Kennedy, J.).
In his concurrence, which Justice Thomas joined, Justice Scalia pointed out that the Court had already said, in Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), though without elaboration, that habeas relief was not available for claims of actual innocence. Herrera, 506 U.S. at 428-29, 122 L. Ed. 2d at 235, 113 S. Ct. at 875 (Scalia, J., concurring, joined by Thomas, J.). Justice Scalia simply understood the first part of the Court’s opinion to strengthen the statement made in Townsend. Herrera, 506 U.S. at 429, 122 L. Ed. 2d at 235, 113 S. Ct. at 875 (Scalia, J., concurring, joined by Thomas, J.).
In his dissent, which Justices Stevens and Souter joined, Justice Blackmun believed the first portion of the opinion to be dictum, not the second part Justice O’Connor identified. Herrera, 506 U.S. at 430, 122 L. Ed. 2d at 235, 113 S. Ct. at 876 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.). Justice Blackmun noted that "[t]he majority’s disposition *** leaves the States uncertain of their [federal] constitutional obligations.” Herrera, 506 U.S. át 439, 122 L. Ed. 2d at 242, 113 S. Ct. at 881 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.). He disagreed that procedural and not substantive due process governed the fourteenth amendment analysis, the execution of an innocent person being "the ultimate ' "arbitrary impositio[n].” ’ ” Herrera, 506 U.S. at 436-37, 122 L. Ed. 2d at 239-40, 113 S. Ct. at 878-79 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.), quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 848, 120 L. Ed. 2d 674, 696, 112 S. Ct. 2791, 2805 (1992).
On one hand Herrera underscores the unkind reality that, though the Constitution "offers unparalleled protections against convicting the innocent” (Herrera, 506 U.S. at 420, 122 L. Ed. 2d at 229, 113 S. Ct. at 871 (O’Connor, J., concurring, joined by Kennedy, J.)), it cannot guaranty that result (see Patterson, 432 U.S. at 208, 53 L. Ed. 2d at 291, 97 S. Ct. at 2326). Then again, the last portion of the opinion suggests that the Constitution must somehow be made to do so, at least in a capital case. Herrera, 506 U.S. at 416-19, 122 L. Ed. 2d at 227-28, 113 S. Ct. at 869-70. Justice O’Connor echoed that notion, even agreeing that only a pardon or clemency could promise relief given a constitutionally fair conviction. How the Constitution might guaranty that the truly innocent are not imprisoned or executed given the greater portion of the Court’s discussion in Herrera is not easily answered.
It is no criticism to read Herrera as a conflicted decision. As Justice O’Connor said, claims of innocence— even those in noncapital cases — present troubling issues. We are, of course, bound by the Supreme Court’s interpretation of the United States Constitution. Conflicted or not, at least for noncapital cases, Herrera clearly states, as the Court did in Townsend v. Sain, that a freestanding claim of innocence is not cognizable as a fourteenth amendment due process claim. And so Washington’s effort to state a federal constitutional due process claim under the Post-Conviction Hearing Act must fail.
Due Process Under the Illinois Constitution
The possibility remains that Washington’s claim may be cognizable under the Illinois Constitution’s due process protection. That protection is stated as it is in the fourteenth amendment: no person “shall be deprived of life, liberty or property without due process of law.” Ill. Const. 1970, art. I, § 2; see U.S. Const., amend. V. The Record of Proceedings of the Constitutional Convention does not reveal anything as to what the drafters intended for the Illinois protection different from the federal counterpart. See 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1496-1523.
Nevertheless, in People v. McCauley, 163 Ill. 2d 414, 440 (1994), we noted that we labor under no self-imposed constraint to follow federal precedent in “lockstep” (see People v. Tisler, 103 Ill. 2d 226, 245 (1984)) in defining Illinois’ due process protection. In McCauley, we looked primarily to how the protection had been interpreted with respect to the issue there presented: police interference with a suspect’s right to legal assistance. We found historical support to say that, as a state matter, due process should protect against deliberate attempts to deny legal counsel. McCauley, 163 Ill. 2d at 441-42.
As for Washington’s claim here, there are decisions in which this court has perfunctorily evaluated new evidence claims in cases brought under the Post-Conviction Hearing Act. See People v. Silagy, 116 Ill. 2d 357, 367-68 (1987); People v. Witherspoon, 36 Ill. 2d 471, 477-78 (1967), rev’d on other grounds, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968). The same is true of decisions of our appellate court. See, e.g., People v. Cunningham, 267 Ill. App. 3d 1009, 1017 (1994); People u. Moleterno, 254 Ill. App. 3d 615, 624-25 (1993); People v. Lovitz, 101 Ill. App. 3d 704, 708 (1981). The practice seen in those decisions is an evaluation of the claim as if it were brought in a motion for a new trial. See, e.g., Silagy, 116 Ill. 2d at 368, citing People v. Molstad, 101 Ill. 2d 128, 134 (1984); but see People v. Albanese, 125 Ill. 2d 100, 114 (1988), relying upon People v. Cornille, 95 Ill. 2d 497 (1983).
But neither this court nor the appellate court has ever expressly identified the constitutional right implicated in a freestanding claim of innocence based upon new evidence. It is because that issue is raised here for the first time that the State sought leave to appeal under Supreme Court Rule 317(a) (134 Ill. 2d R. 317(a) (allowing appeals as of right when questions under the federal or Illinois Constitutions are raised for the first time in and as a result of the action of the appellate court)). Again, Post-Conviction Hearing Act relief is impossible if no constitutional right is implicated in the claim asserted. People v. Orndoff, 39 Ill. 2d 96, 99 (1968).
Perhaps the closest this court has come to determining that our constitution’s due process clause could be a means to recognize a newly discovered evidence claim for post-conviction purposes was in People v. Cornille, 95 Ill. 2d 497 (1983). There, the court held that a post-conviction claim based upon the discovery that an expert testifying in an arson prosecution lied about his expertise was cognizable under the due process clauses of both the United States and Illinois Constitutions. Cornille, 95 Ill. 2d at 505-15. However, the decision did not turn on a differentiation of the clauses. The State’s failure to prevent the perjury by verifying the expert’s credentials was sufficient "indicia of State action” which, linked to the "adjudicatory process! ],” made the expert’s conduct a due process violation under both. Cornille, 95 Ill. 2d at 511. Cornille finds its place among a long line of related cases holding that the use of false testimony underlying a conviction is a due process violation. Cornille, 95 Ill. 2d at 508-09.
Those kinds of claims are fundamentally different from ones such as Washington has raised. Washington can claim no state action with regard to the evidence he now relies upon for post-conviction relief. And the "adjudicatory process” by which he was convicted did not otherwise lack due process. Essentially, then, the issue is the time relativeness of due process as a matter of this State’s constitutional jurisprudence; that is, should additional process be afforded in Illinois when newly discovered evidence indicates that a convicted person is actually innocent?
We believe so as a matter of both procedural and substantive due process. In terms of procedural due process, we believe that to ignore such a claim would be fundamentally unfair. See McCauley, 163 Ill. 2d 441; see generally Herrera, 506 U.S. at 435 n.5, 435-37, 122 L. Ed. 2d at 239 n.5, 239-40, 113 S. Ct. at 878 n.5, 878-79 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.), citing Medina v. California, 505 U.S. 437, 120 L. Ed. 2d 353, 112 S. a. 2572 (1992).
Imprisonment of the innocent would also be so conscience shocking as to trigger operation of substantive due process. See Herrera, 506 U.S. at 436-37, 122 L. Ed. 2d at 239-40, 113 S. Ct. at 879 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.). The conflicted analysis in Herrera is some proof of that. Though the Court rejected the application of substantive due process principles as grounds in Herrera, the Court nevertheless conceded that "a truly persuasive demonstration of 'actual innocence’ ” would make a conviction unconstitutional. Herrera, 506 U.S. at 417, 122 L. Ed. 2d at 227, 113 S. Ct. at 869.
We have no difficulty seeing why substantive due process as a matter of Illinois constitutional law offers the grounds for such a conclusion. The Supreme Court rejected substantive due process as means to recognize freestanding innocence claims because of the idea that a person convicted in a constitutionally fair trial must be viewed as guilty. That made it impossible for such a person to claim that he, an innocent person, was unfairly convicted.
We think that the Court overlooked that a "truly persuasive demonstration of innocence” would, in hindsight, undermine the legal construct precluding a substantive due process analysis. The stronger the claim — the more likely it is that a convicted person is actually innocent — the weaker is the legal construct dictating that the person be viewed as guilty. A "truly persuasive demonstration of innocence” would effectively reduce the idea to legal fiction. At the point where the construct falls apart, application of substantive due process principles, as Justice Blackmun favored, is invited. Herrera, 506 U.S. at 436, 122 L. Ed. 2d at 239-40, 113 S. Ct. at 879 (Blackmun, J., dissenting, joined by Stevens and Souter, JJ.), quoting Planned Parenthood of Southeastern Pennsylvania, 505 U.S. at 848, 120 L. Ed. 2d at 696, 112 S. Ct. at 2805.
We believe that no person convicted of a crime should be deprived of life or liberty given compelling evidence of actual innocence. See generally Herrera, 506 U.S. at 417, 122 L. Ed. 2d at 227, 113 S. Ct. at 869; see also Herrera, 506 U.S. at 419, 122 L. Ed. 2d at 228, 113 S. Ct. at 870 (O’Connor, J., concurring, joined by Kennedy, J.) (acknowledging as a "fundamental legal principle that executing the innocent is inconsistent with the Constitution”). Given the limited avenues that our legislature has so far seen fit to provide for raising freestanding claims of innocence, that idea — but for the possibility of executive clemency — would go ignored in cases like this one. We therefore hold as a matter of Illinois constitutional jurisprudence that a claim of newly discovered evidence showing a defendant to be actually innocent of the crime for which he was convicted is cognizable as a matter of due process. That holding aligns Illinois with other jurisdictions likewise recognizing, primarily as a matter of state habeas corpus jurisprudence, a basis to raise such claims under the rubric of due process. See State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389 (Tex. Grim. App. 1994); Summer-ville v. Warden, State Prison, 229 Conn. 397, 641 A.2d 1356 (1994); In re Clark, 5 Cal. 4th 750, 855 P.2d 729, 21 Cal. Rptr. 2d 509 (1993); Jones v. State, 591 So. 2d 911 (Fla. 1991).
That only means, of course, that there is footing in the Illinois Constitution for asserting freestanding innocence claims based upon newly discovered evidence finder the Post-Conviction Hearing Act. Procedurally, such claims should be resolved as any other brought under the Act. Substantively, relief has been held to require that the supporting evidence be new, material, noncumulative and, most importantly, " 'of such conclusive character’ ” as would " 'probably change the result on retrial.’ ” See Silagy, 116 Ill. 2d at 368, quoting Molstad, 101 Ill. 2d at 134.
As for this case, we find neither reason to disagree with the appellate court that those concerns were satisfied nor need to elaborate upon that conclusion. See 256 Ill. App. 3d 445.
The judgment of the appellate court is affirmed.
Affirmed.