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July 15, 2020 Ethics

Post-Conviction Relief after a Guilty Plea?

Peter A. Joy and Kevin C. McMunigal

Should a person who pled guilty to an offense later be allowed to try to set aside that conviction when making an actual innocence claim based on newly discovered evidence? Or should prior entry of a guilty plea automatically bar a convicted person from seeking such relief? Some state legislatures have enacted post-conviction relief statutes that take opposing positions on these questions. A growing number of state cases also divide in answering these questions. In this column, we review some of these statutes and cases. We also briefly canvas competing arguments advanced in support of each position.


Some state post-conviction relief statutes are explicit in dealing with defendants who have pled guilty. Several sections of the District of Columbia’s Innocence Protection Act, for example, make clear that it applies both to those convicted pursuant to guilty pleas as well as those convicted after trials. D.C. Code § 22-4135. The Act begins by stating that it applies to “[a] person convicted of a criminal offense” without distinguishing between guilty pleas and trials. A later section states that the convicted person’s motion must set forth evidence that demonstrates actual innocence “despite having been convicted at trial or having pled guilty.” (Emphasis added.) Later sections set forth requirements that differ depending on whether “the conviction resulted from a trial” or “the conviction resulted from a plea of guilty.” (Emphasis added.)

In contrast, Virginia’s Writ of Actual Innocence statute states that relief is available “upon the petition of a person who was convicted of a felony upon a plea of not guilty, or the petition of a person who was adjudicated delinquent upon a plea of not guilty. . . .” Va. Code Ann. § 19.2-327.10 (emphasis added). It makes no mention of a person convicted or adjudicated delinquent upon a plea of guilty.

The Maryland post-conviction relief statute, unlike the District of Columbia and Virginia statutes, does not address the method of conviction. It speaks only of making relief available after a “conviction.” One might quite reasonably conclude that the word “conviction” here encompasses both convictions based on trials and those based on guilty pleas. The word “conviction” is a shorthand way to refer to a judgment of conviction. Both guilty pleas, in which the defendant admits guilt, and trials, in which a jury or judge conclude the defendant has been proven guilty beyond reasonable doubt, result in entry of a judgment of conviction. Indeed, the vast majority of judgments of conviction entered across the United States in both federal and state courts, typically over 90 percent, are based on guilty pleas. Accordingly, judgments of conviction based on guilty pleas are routinely treated as convictions for purposes such as impeachment, laws barring felons from possessing firearms, sex offender registration laws, and laws that restrict felons from voting.

The Maryland Court of Special Appeals, however, relying on some sketchy interpretive methodology, construed Maryland’s post-conviction relief statute, which refers simply to convictions, as providing relief only to those convicted after a trial. In Yonga v. State, 221 Md. App. 45, 108 A.3d 448 (2015), the court reached this conclusion despite the fact that the meaning of “conviction” in common legal usage clearly encompasses those who plead guilty, and the fact that “conviction” in virtually every other context, as pointed out above, includes those who plead guilty. Essentially ignoring this language in the statute, the Yonga court chose to rely heavily on a practical concern—the difficulty of assessing the weight of newly discovered evidence in the context of other evidence concerning guilt and innocence because, unlike a trial, when a defendant pleads guilty typically no evidence is put on the record other than the defendant’s admission of guilt.


The issue of whether one who has pled guilty may later seek postconviction relief based on an actual innocence claim has arisen in a number of cases. Some of these fail to clearly acknowledge or squarely address the issue. In others, courts have acknowledged the issue but resolved it without much apparent thought or analysis. Two relatively recent cases, though—one from the Iowa Supreme Court and the other from the New York Court of Appeals—devote extensive analysis to the question and examine in detail a range of competing arguments. The cases come to opposite conclusions and generated spirited dissents.

In Schmidt v. State, 909 N.W.2d 778 (Iowa 2018), the Iowa Supreme Court, abandoning prior contrary precedent, concluded on a narrow 5-4 vote to allow a defendant who has pled guilty to pursue post-conviction relief when raising an actual innocence claim based on newly discovered evidence. In the New York case, People v. Tiger, 32 N.Y.3d 91 (2018), the justices divided on the question of whether a guilty plea automatically bars such a claim. A majority concluded that it does, with one exception: a post-conviction innocence claim based on DNA evidence.


All agree that a defendant who has pled guilty can challenge the validity of the process that generated the guilty plea, sometimes referred to as an intrinsic challenge. Examples of intrinsic challenges are those based on improper coercion or ineffective assistance of counsel during the guilty plea process. Where the statutes and cases sharply divide is on whether those who plead guilty should be able later to challenge their convictions on innocence grounds based on newly discovered evidence, a claim unrelated to the process that generated the guilty plea. Such a claim is sometimes referred to as an extrinsic challenge. The extensive analyses provided by both the majorities and dissents in the Schmidt and Tiger cases provide an excellent opportunity to gauge the arguments offered in support of each position.

Sanctity of Guilty Plea

A primary argument made in favor of not allowing defendants who have pled guilty to challenge their guilty pleas on the basis of factual inaccuracy stems from the admission of guilt that lies at the heart of a typical guilty plea. These admissions are made in open court, under oath in federal court and in some state courts, with the assistance and advice of counsel, and after the defendant has been warned by the judge of the consequences of the admission of guilt and entry of a guilty plea. One thing that makes this argument persuasive at first glance is the intuitive unlikeliness of a person making a false admission that is clearly against that person’s penal interest under these conditions. This view also reflects a sort of unclean hands position, that one who has admitted guilt in open court and usually under oath should be barred from later claiming innocence because such a claim, if accurate, essentially admits that the defendant lied and in some courts committed perjury in falsely admitting guilt.

Protecting the Innocent

A competing argument in support of allowing such challenges by those who have pled guilty is grounded in retributive thinking about punishment, in particular the retributive limiting principle that the innocent should never be punished. This is both a compelling and readily accessible argument that has a powerful appeal to widely shared moral intuitions. Punishing an innocent person, often for a significant period of time, and permanently labeling an innocent person as a criminal obviously violate this principle. Allowing such challenges is also supported by utilitarian thinking. There is no need to specifically deter, incapacitate, or rehabilitate an innocent person.


Another primary argument in support of allowing post guilty plea challenges based on innocence claims focuses on the incentives that attend a guilty plea. In sharp contrast to the argument examined above about the “sanctity” of a guilty plea, which adopt a very formalist view of guilty pleas focused primarily on the formal facets of the entry of a guilty plea in open court, the argument based on incentives adopts a more realist view of guilty pleas and looks more broadly at the guilty plea process and the negotiations that take place prior to a guilty plea being accepted in open court. This realist argument emphasizes the incentive structure underlying a guilty plea and examines the often-powerful motivations for defendants to falsely condemn themselves. One facet of this incentive structure is the unlimited size of sentencing differentials, the difference between what a defendant risks by going to trial and what the defendant risks after pleading guilty. Such differentials can make false self-condemnation strategically attractive even to one who is innocent. Prosecutorial waivers of or threats to charge crimes carrying mandatory minimums or even the death penalty can very strongly reinforce the motivation for false self-condemnation.

The work of the Innocence Project gives this argument traction by providing empirical support regarding the risk of false self-condemnation. It illustrates the disturbing reality that such incentives do actually motivate innocent people to plead guilty. Eleven percent of those wrongfully convicted and exonerated through DNA had entered guilty pleas based on false admissions of guilt. The National Registry of Exonerations found that 18 percent of known exonerees pleaded guilty.


A pragmatic argument is also advanced by those who oppose allowing defendants who plead guilty to later raise innocence claims. When defendants are convicted after a trial, the trial generates an accessible record of the evidence upon which the conviction rested. When a defendant convicted after a trial presents newly discovered exculpatory evidence, a judge considering an innocence claim is able to assess the strength and credibility of the new evidence in the context of the evidence presented at trial. A guilty plea, in contrast, generates no record of either inculpatory or exculpatory evidence relating to the charge other than the defendant’s admission of guilt, making it difficult or impossible to assess and weigh newly presented evidence in context. This is not a problem when the newly discovered evidence, such as DNA evidence in a rape case, conclusively shows that the defendant is innocent. But if the new evidence is not so conclusive and requires assessment of its weight and credibility in the context of all the relevant evidence, the judge hearing the postconviction relief claim will not have easy or perhaps any access to prior testimony or other evidence. It may also be difficult or impossible for the prosecution to collect and present such evidence perhaps years after the guilty plea was entered. This difficulty can arise in cases in which the newly discovered evidence is a recantation of prior statements made by one or more key witnesses.


In both prior columns and law review articles, we have both long been on record as endorsing the realist view of guilty pleas that acknowledges and takes account of the incentives that underlie them. The Iowa Supreme Court cited some of this work in the Schmidt case. We find the argument that stresses the sanctity of an admission of guilt under oath somewhat hypocritical in a criminal justice system that allows and relies on an incentive structure that can generate enormous pressures for false self-condemnation. While we have no doubt that the vast majority of people who plead guilty are in fact guilty, we are convinced, as the Innocence Project and the National Registry of Exonerations have shown, that a very troubling number of innocent defendants plead guilty. So we support the positions taken in cases such as Schmidt and statutes such as the one found in the District of Columbia.

In our view, the most serious concern about postconviction actual innocence claims made by those who have pled guilty is the difficulty that can be posed by lack of a prior record showing both the inculpatory and exculpatory evidence in the case other than the newly discovered evidence. How much of an obstacle this poses in evaluating actual innocence claims will vary from case to case. In some cases, for example, a preliminary hearing that generated an evidentiary record may have preceded the guilty plea. But this concern, in our view, is not enough to overcome the arguments in favor of allowing those who have pled guilty to obtain post-conviction relief based on actual innocence claims.

Finally, on a related note, in jurisdictions that have adopted Model Rule 3.8(h), a prosecutor who “knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, . . . shall seek to remedy the conviction.” In our view, the plain meaning of the word “conviction” in legal usage, as pointed out above, dictates that Rule 3.8(h) covers all convictions, whether founded on a trial or a guilty plea. Thus, in those jurisdictions, a prosecutor who knows of such evidence of innocence should join with the defense in seeking post-conviction relief for the accused regardless of whether a trial or a guilty plea underlies the conviction.

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Peter A. Joy is the Henry Hitchcock Professor of Law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri.

Kevin C. McMunigal is the Krupansky and Vargo Professor of Law at Case Western Reserve University School of Law in Cleveland, Ohio.