78B-9-404 - Hearing upon petition -- Procedures -- Court determination of factual innocence. - Utah Statutes

78B-9-404. Hearing upon petition -- Procedures -- Court determination of factualinnocence.
(1) (a) In any hearing conducted under this part, the Utah attorney general shall representthe state.
(b) The burden is upon the petitioner to establish the petitioner's factual innocence byclear and convincing evidence.
(2) The court may consider:
(a) evidence that was suppressed or would be suppressed at a criminal trial; and
(b) hearsay evidence, and may consider that the evidence is hearsay in evaluating itsweight and credibility.
(3) In making its determination the court shall consider, in addition to the evidencepresented at the hearing under this part, the record of the original criminal case and at anypostconviction proceedings in the case.
(4) If the court, after considering all the evidence, determines by clear and convincingevidence that the petitioner:
(a) is factually innocent of one or more offenses of which the petitioner was convicted,the court shall order that those convictions:
(i) be vacated with prejudice; and
(ii) be expunged from the petitioner's record; or
(b) did not commit one or more offenses of which the petitioner was convicted, but thecourt does not find by clear and convincing evidence that the petitioner did not commit any lesserincluded offenses relating to those offenses, the court shall modify the original conviction andsentence of the petitioner as appropriate for the lesser included offense, whether or not the lesserincluded offense was originally submitted to the trier of fact.
(5) (a) If the court, after considering all the evidence, does not determine by clear andconvincing evidence that the petitioner is factually innocent of the offense or offenses thepetitioner is challenging and does not find that Subsection (4)(b) applies, the court shall deny thepetition regarding the offense or offenses.
(b) If the court finds that the petition was brought in bad faith, it shall enter the findingon the record, and the petitioner may not file a second or successive petition under this sectionwithout first applying to and obtaining permission from the court which denied the prior petition.
(6) At least 30 days prior to a hearing on a petition to determine factual innocence, thepetitioner and the respondent shall exchange information regarding the evidence each intends topresent at the hearing. This information shall include:
(a) a list of witnesses to be called at the hearing; and
(b) a summary of the testimony or other evidence to be introduced through each witness,including any expert witnesses.
(7) Each party is entitled to a copy of any expert report to be introduced or relied upon bythat expert or another expert at least 30 days prior to hearing.

Amended by Chapter 153, 2010 General Session