Must factual innocence determinations be based solely on newly discovered evidence? Thompson v. State Explained

In a significant ruling for post-conviction practitioners, the Utah Supreme Court in Thompson v. State clarified the evidentiary standard for factual innocence determinations under Utah’s Post-Conviction Remedies Act. The court held that such determinations must be based solely on newly discovered evidence, not on how that evidence illuminates previously available evidence.

Background and Facts

Michael Thompson was convicted in 2008 of two counts of forcible sodomy based on allegations by his half-sister. Thompson’s defense relied heavily on trucking logs showing he could not have been present during the alleged timeframe. At trial, the State’s rebuttal expert testified that Thompson’s claimed travel time was impossible, calling the logs fabricated. Thompson’s conviction was later reversed due to ineffective assistance of counsel, and charges were dismissed. Thompson then sought a factual innocence determination based on newly discovered expert testimony that contradicted the State’s trial expert and supported the plausibility of his trucking logs.

Key Legal Issues

The central issue was interpreting Utah Code section 78B-9-404(8), which requires that factual innocence determinations be “based upon the newly discovered material evidence.” Thompson argued this meant the new evidence need only “cast the old evidence in a new light,” while the State contended the new evidence alone must establish innocence.

Court’s Analysis and Holding

The Utah Supreme Court sided with the State, holding that “based upon” requires the newly discovered evidence to be the foundation for the innocence determination. The court distinguished its earlier decision in Brown v. State, noting that the legislature’s 2012 addition of subsection 404(8) changed the analysis. While courts must still “consider” all evidence for context and credibility assessment, the determination itself must rest on the new evidence alone. Here, the expert testimony merely showed Thompson’s alibi was plausible but could not establish he didn’t commit the crimes.

Practice Implications

This decision significantly raises the bar for factual innocence petitions. Practitioners can no longer rely on newly discovered evidence that merely supports or corroborates existing trial evidence. The new evidence must independently and clearly establish innocence. This ruling also clarifies that impeachment evidence—even compelling impeachment—cannot form the basis for factual innocence. Attorneys should carefully evaluate whether newly discovered evidence can stand alone before filing such petitions.