(a) Legislative intent -- The Legislature finds and declares that innocent persons who have been wrongly convicted of crimes and subsequently imprisoned and innocent persons wrongly arrested, charged with a crime or imprisoned, who have subsequently been released when another person was arrested, prosecuted and convicted of the same criminal offense have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law and that affected persons should have an available avenue of redress over and above the existing tort remedies. Therefore, the Legislature intends by enactment of the provisions of this section that those innocent persons who can demonstrate that they were wrongly arrested and imprisoned or unjustly convicted and imprisoned are able to seek damages against the state for loss of liberty.
(b) Notice of Claim -- The claimant's notice of claim shall state facts in sufficient detail to permit the court to find that a claimant is likely to succeed at a trial on the merits. If the court finds in its discretion after reviewing a claim that the claimant has failed to allege sufficient facts upon which relief can be granted, the court may dismiss the claim, either on its own motion or by a motion of the state.
(c) Burden of Proof -- A claimant shall demonstrate by clear and convincing evidence that they were unjustly arrested and imprisoned or unjustly convicted and imprisoned, and the court shall, in the interest of justice, give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence or other factors not caused by such persons or those acting on their behalf. Specifically, the following shall be proven by clear and convincing evidence:
(1) (A) The claimant has been convicted of one or more felonies or misdemeanors against the state and subsequently sentenced to a term of confinement, and has served all or any part of the sentence; or
(B) The claimant has been arrested and confined, and charged by warrant, information, or any other accusatory instrument for one or more felonies or misdemeanors, and that the charges were dismissed against the claimant; when another person was subsequently charged, arrested, and convicted of the same felony or felonies, or misdemeanors, or;
(2) (A) Another person was subsequently charged, arrested and convicted of the same felony or felonies or misdemeanors;
(B) The claimant has been pardoned upon the ground of innocence of the crime or crimes for which the claimant was sentenced and which are the grounds for the complaint; or
(C) The claimant's judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either the claimant was found not guilty at the new trial or the claimant was not retried and the accusatory instrument dismissed; and
(3) The claimant did not by his or her own conduct cause or bring about his or her conviction.
(d) Type of Relief Granted and the Claimant's Burden to Prove
Damages -- If the court finds that the claimant is entitled to a
judgment, the court shall award damages in a sum of money as the
court determines will fairly and reasonably compensate the claimant
based upon the sufficiency of the claimant's proof at trial.
Whether the damages fairly and reasonably compensate the claimant
will depend upon the unique facts and circumstances of each claim.
The claimant shall bear the ultimate burden of proving all damages
associated with the claimant's claim.
Note: WV Code updated with legislation passed through the 2015 Regular Session
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