Utah Code » Title 78B, Chapter 9 — Postconviction Remedies Act; part 78B-9-4 — Postconviction Determination of Factual Innocence
Utah Code

Utah Code § 78B-9-404 (2026)

Hearing upon petition -- Procedures -- Court determination of factual innocence

✓ current as of May 2026
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In any hearing conducted under this part, the Utah attorney general shall represent the state.
The burden is upon the petitioner to establish the petitioner's factual innocence by clear and convincing evidence.
The court may consider:
evidence that was suppressed or would be suppressed at a criminal trial; and
hearsay evidence, and may consider that the evidence is hearsay in evaluating its weight and credibility.
In making its determination the court shall consider, in addition to the evidence presented at the hearing under this part, the record of the original criminal case and at any postconviction proceedings in the case.
If the court, after considering all the evidence, determines by clear and convincing evidence that the petitioner:
is factually innocent of one or more offenses of which the petitioner was convicted, the court shall order that those convictions:
be vacated with prejudice; and
be expunged from the petitioner's record; or
did not commit one or more offenses of which the petitioner was convicted, but the court does not find by clear and convincing evidence that the petitioner did not commit any lesser included offenses relating to those offenses, the court shall modify the original conviction and sentence of the petitioner as appropriate for the lesser included offense, whether or not the lesser included offense was originally submitted to the trier of fact.
If the court, after considering all the evidence, does not determine by clear and convincing evidence that the petitioner is factually innocent of the offense or offenses the petitioner is challenging and does not find that Subsection (4)(b) applies, the court shall deny the petition regarding the offense or offenses.
If the court finds that the petition was brought in bad faith, it shall enter the finding on the record, and the petitioner may not file a second or successive petition under this section without first applying to and obtaining permission from the court which denied the prior petition.
At least 30 days prior to a hearing on a petition to determine factual innocence, the petitioner and the respondent shall exchange information regarding the evidence each intends to present at the hearing. This information shall include:
a list of witnesses to be called at the hearing; and
a summary of the testimony or other evidence to be introduced through each witness, including any expert witnesses.
Each party is entitled to a copy of any expert report to be introduced or relied upon by that expert or another expert at least 30 days prior to hearing.
The court, after considering all the evidence, may not find the petitioner to be factually innocent unless:
the court determines by clear and convincing evidence that the petitioner did not commit one or more of the offenses of which the petitioner was convicted, as defined in Subsection 78B-9-401.5(2); and
the determination is based upon the newly discovered material evidence described in the petition, pursuant to Section 78B-9-402, and as defined in Subsection 78B-9-401.5(3).
Notes of Decisions
Cited in 7 cases (2 in the last 5 years), 2010–2024 · leading case: Brown v. State, 2013 UT 42 (Utah 2013).
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Brown v. State, 2013 UT 42 (Utah 2013). · cites it 20× “§ 78B-9-404. 13 BROWN v. STATE Opinion of the Court factual innocence, not merely play some part in the determination.”
Thompson v. State, 2024 UT 27 (Utah 2024). · cites it 15× “¶ 50; UTAH CODE § 78B-9-404 (2010). Instead, the only relevant instruction in section 404 was its directive to the court to “consider, in addition to the evidence presented at the [factual innocence] hearing .”
Gressman v. State, 2013 UT 63 (Utah 2013). · cites it 4× “§ 78B-9-404(1)(b).9 In other words, a petitioner seeking a factual innocence determination may not merely attack the sufficiency of the evidence supporting his conviction or attempt to overturn an adjudication of guilt on technical grounds; the petitioner must affirmatively…”
Ashby v. State, 2023 UT 19 (Utah 2023). · cites it 6× “If the court determines that the statute’s threshold requirements are met and that “there is a bona fide and compelling issue of factual innocence regarding the charges of which the petitioner was convicted,” the district court must hold a hearing.”
Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010). · cites it 2× “We note that Miller still faces a heavy burden of proof at the factual innocence hearing, see *751 Utah Code Ann. § 78B-9-404(1)(b) (2008), and our decision expresses no opinion as to whether Miller will be able to meet that burden; rather, we hold simply that he must be given…”
Brown v. State, 2013 UT 42 (Utah 2013). · cites it 9× “§ 78B-9-404. 13 BROWN v. STATE Opinion of the Court factual innocence, not merely play some part in the determination.”
Gressman v. State, 2013 UT 63 (Utah 2013). · cites it 2× “§ 78B-9-404(1)(b).9 In other words, a petitioner seeking a factual innocence determination may not merely attack the sufficiency of the evidence supporting his conviction or attempt to overturn an adjudication of guilt on technical grounds; the petitioner must affirmatively…”
— Utah Code § 78B-9-404(1)(b) — 7 cases
Brown v. State, 2013 UT 42 (Utah 2013). “§ 78B-9-404. 13 BROWN v. STATE Opinion of the Court factual innocence, not merely play some part in the determination.”
Gressman v. State, 2013 UT 63 (Utah 2013). “§ 78B-9-404(1)(b).9 In other words, a petitioner seeking a factual innocence determination may not merely attack the sufficiency of the evidence supporting his conviction or attempt to overturn an adjudication of guilt on technical grounds; the petitioner must affirmatively…”
Ashby v. State, 2023 UT 19 (Utah 2023). “If the court determines that the statute’s threshold requirements are met and that “there is a bona fide and compelling issue of factual innocence regarding the charges of which the petitioner was convicted,” the district court must hold a hearing.”
Miller v. State, 2010 UT App 25 (Utah Ct. App. 2010). “We note that Miller still faces a heavy burden of proof at the factual innocence hearing, see *751 Utah Code Ann. § 78B-9-404(1)(b) (2008), and our decision expresses no opinion as to whether Miller will be able to meet that burden; rather, we hold simply that he must be given…”
Thompson v. State, 2024 UT 27 (Utah 2024). “¶ 50; UTAH CODE § 78B-9-404 (2010). Instead, the only relevant instruction in section 404 was its directive to the court to “consider, in addition to the evidence presented at the [factual innocence] hearing .”
— Utah Code § 78B-9-404(2) — 2 cases
Brown v. State, 2013 UT 42 (Utah 2013). “§ 78B-9-404. 13 BROWN v. STATE Opinion of the Court factual innocence, not merely play some part in the determination.”
Brown v. State, 2013 UT 42 (Utah 2013). “§ 78B-9-404. 13 BROWN v. STATE Opinion of the Court factual innocence, not merely play some part in the determination.”
— Utah Code § 78B-9-404(3) — 6 cases
Brown v. State, 2013 UT 42 (Utah 2013). “§ 78B-9-404. 13 BROWN v. STATE Opinion of the Court factual innocence, not merely play some part in the determination.”
Gressman v. State, 2013 UT 63 (Utah 2013). “§ 78B-9-404(1)(b).9 In other words, a petitioner seeking a factual innocence determination may not merely attack the sufficiency of the evidence supporting his conviction or attempt to overturn an adjudication of guilt on technical grounds; the petitioner must affirmatively…”
Thompson v. State, 2024 UT 27 (Utah 2024). “¶ 50; UTAH CODE § 78B-9-404 (2010). Instead, the only relevant instruction in section 404 was its directive to the court to “consider, in addition to the evidence presented at the [factual innocence] hearing .”
Ashby v. State, 2023 UT 19 (Utah 2023). “If the court determines that the statute’s threshold requirements are met and that “there is a bona fide and compelling issue of factual innocence regarding the charges of which the petitioner was convicted,” the district court must hold a hearing.”
Gressman v. State, 2013 UT 63 (Utah 2013). “§ 78B-9-404(1)(b).9 In other words, a petitioner seeking a factual innocence determination may not merely attack the sufficiency of the evidence supporting his conviction or attempt to overturn an adjudication of guilt on technical grounds; the petitioner must affirmatively…”
— Utah Code § 78B-9-404(4) — 3 cases
Brown v. State, 2013 UT 42 (Utah 2013). “§ 78B-9-404. 13 BROWN v. STATE Opinion of the Court factual innocence, not merely play some part in the determination.”
Thompson v. State, 2024 UT 27 (Utah 2024). “¶ 50; UTAH CODE § 78B-9-404 (2010). Instead, the only relevant instruction in section 404 was its directive to the court to “consider, in addition to the evidence presented at the [factual innocence] hearing .”
Brown v. State, 2013 UT 42 (Utah 2013). “§ 78B-9-404. 13 BROWN v. STATE Opinion of the Court factual innocence, not merely play some part in the determination.”
— Utah Code § 78B-9-404(4)(a) — 1 case
Ashby v. State, 2023 UT 19 (Utah 2023). “If the court determines that the statute’s threshold requirements are met and that “there is a bona fide and compelling issue of factual innocence regarding the charges of which the petitioner was convicted,” the district court must hold a hearing.”
— Utah Code § 78B-9-404(8) — 1 case
Thompson v. State, 2024 UT 27 (Utah 2024). “¶ 50; UTAH CODE § 78B-9-404 (2010). Instead, the only relevant instruction in section 404 was its directive to the court to “consider, in addition to the evidence presented at the [factual innocence] hearing .”
— Utah Code § 78B-9-404(8)(b) — 1 case
Thompson v. State, 2024 UT 27 (Utah 2024). “¶ 50; UTAH CODE § 78B-9-404 (2010). Instead, the only relevant instruction in section 404 was its directive to the court to “consider, in addition to the evidence presented at the [factual innocence] hearing .”
— Utah Code § 78B-9-404(G8) — 1 case
Gressman v. State, 2013 UT 63 (Utah 2013). “§ 78B-9-404(1)(b).9 In other words, a petitioner seeking a factual innocence determination may not merely attack the sufficiency of the evidence supporting his conviction or attempt to overturn an adjudication of guilt on technical grounds; the petitioner must affirmatively…”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.