The innocence projects have somewhat different internal protocols, but each follows a similar process. Initial requests for assistance are screened to determine if a claim of actual innocence is being made. If not, the request is rejected. If a completed case questionnaire was not submitted with the initial request, a questionnaire is sent to the inmate. Case questionnaires are carefully reviewed to determine if there is a viable avenue to develop evidence that may expose a wrongful conviction. Initial investigation includes preparing a procedural history of the case and gathering documents such as appellate opinions and media coverage.
In many cases, the preliminary case review does not indicate a viable way forward to demonstrate the innocence of the inmate and meet the high burden required to overturn a conviction. Such cases are not necessarily rejected because the innocence claim is deemed false, but because the project is unable to chart a potential investigative and legal path that could lead to relief. Most cases do not indicate the likelihood of dispositive DNA evidence.
If a path forward can be charted, a more intensive investigation ensues during which clients and witnesses are interviewed, experts are consulted, and litigation may be initiated to obtain forensic testing. State habeas corpus proceedings may be initiated to present new evidence to the courts and/or a clemency petition may be prepared laying out the evidence of innocence and seeking an executive pardon.
A criminal conviction may proceed through several types of appeal. Review during the direct appeal is confined to the trial record, which is scrutinized to identify any violations of statute, flawed evidentiary rulings or other procedural rulings that were in error. Once these issues are addressed in direct appeal they may not be raised in the next stage, habeas corpus proceedings. The innocence projects participating in the TIDC program do not consider cases until the direct appeal has been concluded.
Habeas corpus, unlike the direct appeal, is not confined to the trial record, and so this is the point at which new evidence may be considered. New evidence must address a constitutional violation and may include substantive facts which were neither presented at trial nor available to the defendant at the time of trial and which, in the court's estimation, would have changed the outcome of the trial.
While a defendant must be proven guilty beyond a reasonable doubt to be convicted, merely casting doubt on the guilt of the inmate is insufficient to overturn a conviction. During habeas corpus appeals, the burden shifts to the defendant, so that in order to grant relief a court must conclude that no reasonable juror would convict the defendant if the jury had access to the new evidence that has been presented. In addition, there are often procedural barriers that may make it difficult to get a court to consider evidence of innocence. Habeas corpus proceedings consider new evidence not available to the defendant at trial, and may not merely reexamine and reevaluate evidence that was already presented or available during trial. High deference is paid to the judgment of the trial court regarding the reliability of witnesses.
Finally, if a case is procedurally barred or habeas litigation is unsuccessful, the innocence project may prepare a petition for executive clemency that details the basis of the innocence claim. The petition is reviewed by the Board of Pardons and Paroles, which is not required to hold a hearing. The Board then either rejects the petition, or makes a recommendation to the Governor to grant clemency. In Texas, the Governor is only able to grant clemency with a recommendation from the Board of Pardons and Paroles. One type of pardon the Governor may grant is a Pardon Based on Innocence.
Links to Relevant Statutes:
DNA Cases vs. Non-DNA Cases
While some cases presented to the projects have indications that biological evidence may be available, most do not. Overall, fewer than 5% of all criminal cases involve biological evidence that might provide dispositive evidence that could lead to exoneration. In cases where biological evidence was collected and not subsequently destroyed, lack of standardized procedures for retaining evidence after trial often present significant obstacles to locating evidence for forensic testing that could prove an inmate's innocence.
A disproportionate amount of Texas DNA exonerations have been identified in Dallas County. This has occurred at least in part because the forensic laboratory there routinely stored biological evidence from old cases, making possible later DNA testing. In addition, Dallas County District Attorney Craig Watkins created a special division to review potential wrongful convictions. In some other jurisdictions, such as Harris County (the state's largest) biological evidence was routinely destroyed, making later DNA analysis impossible. (Harris County District Attorney Pat Lykos has also created a conviction review program that has resulted in several exonerations).
In non-DNA cases when there are indications that a claim may be credible, the investigation required is usually much more complicated and intensive. Sometimes the only way to meet the burden facing an innocent inmate is to effectively solve the crime and prove the guilt of the true perpetrator.
In both DNA and non-DNA cases the projects are asked to review, the most common types of evidence used to convict are eyewitness identifications and questionable expert forensic testimony. Such investigation in these non-DNA cases is time-consuming and costly, and the difficulty of establishing innocence and gaining relief in such cases reinforces the importance of efforts on the "front end" of the criminal justice system that ensure that the evidence presented at trial is as accurate and reliable as possible.
Among the non-DNA cases the projects also confront a significant number of cases involving child sexual abuse in which the conviction relies exclusively on testimony of the victim. The projects move forward with such cases only when the complaining witness now recants the accusations that led to the conviction. These and other recantation cases are often especially difficult to evaluate and litigate.