The court of appeals abused its discretion to determine whether the facts presented in an actual-innocence petition required further development. The petitioner offered several previously unknown and untested witness affidavits in support of his petition for a writ of actual innocence based on nonbiological evidence, which the Commonwealth countered with previously unknown and untested witness statements of its own. The probative value of each witness’s testimony hinged on his or her credibility. Despite the statutory mechanism for referring issues in actual innocence cases to a circuit court for factual determination, the court of appeals determined from the record alone that the evidence supporting the petition was not material and accordingly denied the petition.
This case presents one of the rare situations in which the General Assembly has charged an appellate court with engaging in factual evaluation. In Code § 19.2-327.12, the General Assembly has recognized that trial courts are best equipped to serve as fact finders by authorizing the Court of Appeals to refer the case to a circuit court for “further development of the facts.” This procedure is not mandatory, so it is up to the Court of Appeals to exercise its broad discretion in reviewing the record to determine whether the facts require further development.
The court of appeals didn’t have the benefit of a circuit court’s unique ability to see and hear the witnesses first hand and to evaluate their credibility from their appearance and demeanor while testifying. In heavily fact-dependent cases, like this one, that turn on the materiality of new evidence offered by new witnesses whose credibility is not apparent from the record, the court of appeals should err on the side of ordering a circuit court evidentiary hearing.
The court take no position on the merits of Dennis’ petition. Notwithstanding the difficulty of Dennis’ ultimate task, justice favors providing a full opportunity for factual development before the reviewing court decides his petition. A circuit court evidentiary hearing will provide him a chance to meet that burden.
Reversed and remanded.