§ 7004 — Cause of action against the State for wrongful conviction

(a) Who may bring. —

An individual claiming wrongful conviction, or the heirs of the individual if the individual is deceased, may bring a petition for an award and other relief against the State, as set forth in this section.

(b) Filing and service. —

The petition must be filed in the Superior Court. Upon presentation of a petition, the court shall fix a time and place to hear the claim. At least 90 days prior to the time fixed for the hearing, the court shall mail notice thereof to the petitioner and to the Department of Justice. The Department of Justice may offer evidence and argue in opposition to the claim for compensation.

(c) Required showing. —

A petitioner makes a prima facie showing of entitlement to compensation under this section by establishing all of the following by a preponderance of the evidence:

(1) The petitioner was convicted.

(2) The petitioner served all or part of a sentence of incarceration or time spent in a psychiatric institution, probation, parole, or registration on the sex offender registry based on that conviction.

(3) The conviction was overturned, reversed, or vacated on direct or collateral review.

(4) One of the following occurred:

a. After the conviction was overturned, reversed, or vacated on direct or collateral appeal, the charge at issue was dismissed or the petitioner was acquitted of the charge upon retrial.

b. The petitioner entered a Robinson plea, or entered a plea of no contest, while maintaining a claim of innocence, after the conviction was overturned, reversed, or vacated on direct or collateral review when the petitioner would otherwise have been entitled to a new trial.

(5) The petitioner was not convicted of any lesser included felony arising from the same transaction as the crime for which the petitioner was originally convicted.

(6) The petitioner did not commit the crime that resulted in the conviction, or there was no crime committed.

(d) A prior finding from a court that the petitioner did not commit the crime that resulted in the conviction, or that there was no crime committed, is binding for purposes of subsection (c) of this section.

(e) Affirmative defenses. —

If the petitioner makes the showing required by subsection (c) of this section, the petitioner is entitled to an award under § 7005 of this title, unless the Department of Justice appearing in opposition to the petition establishes at least 1 of the following, by a preponderance of the evidence:

(1) That the petitioner committed the crime for which the petitioner was convicted.

(2) That the petitioner was an accomplice in the commission of the crime for which the petitioner was convicted.

(3) That the petitioner intentionally and voluntarily caused the conviction at issue by committing perjury at trial or fabricating evidence at trial, in order to prevent the conviction of the true perpetrator of the crime at issue.

(f) Hearing; admissibility. —

(1) The Court may conduct a hearing on the petition, at which the parties may introduce evidence in support of or in opposition to the petition. The parties may introduce any relevant evidence, including any of the following:

a. Any evidence that was introduced at trial.

b. The trial transcript.

c. Any relevant police or investigative report.

(2) Physical evidence no longer available due to the passage of time or destroyed pursuant to a valid evidence destruction policy or court order does not create a presumption or inference.

(3) An inference may not be drawn in any other proceeding from the grant or denial of a petition under this section.

Legislative History

84 Del. Laws, c. 427, § 1