Monica Welker, Blog Chair, University of Cincinnati Law Review
The state of Missouri sentenced Lloyd Schlup to death row for the premeditated murder of another inmate. On his second federal habeas corpus petition, Schlup asserted his innocence. He argued exculpatory evidence withheld by the prosecution (subject to Brady v. Maryland considerations) and ineffective counsel (counsel had failed to interview several alibi witnesses) violated his constitutional rights.
In the Supreme Court’s opinion, it ruled petitioners such as Schlup had to meet a two-part test to present exculpatory evidence in a successive habeas corpus hearing. First, he must allege a constitutional error resulting in his being denied due process occurred at his trial, and to support this claim, he must present new evidence not available at his trial. Second, he must show if the new evidence had been available at his trial, it is more likely than not no reasonable juror would have found the petitioner guilty.
There is a circuit split about what new evidence a court can consider in a successive habeas corpus claim. Some circuits will consider any evidence that was not presented at trial, and other circuits will not consider evidence that was discoverable at the time of the trial, through due diligence, but was not presented. The standard needs to be the first, broader one, as it not only minimizes the chances of keeping innocent citizens incarcerated (or sentenced to death for a more serious felony, as in the case of Schlup), but it also most closely matches the Court’s decision in Schlup. While the difference may seem to be a technicality that affects only a small number of cases, Schlup’s petition resulted in his being removed from death row, making the distinction a matter of life or death.
Since 1973, 151 people have been released from death row in the U.S. due to evidence of their wrongful convictions.
DETAILS OF THE CIRCUIT SPLIT
In 2003, the Seventh and Ninth Circuits both heard cases regarding habeas corpus petitions modeled after Schlup. Both courts determined a broad definition of “new evidence,” allowing it to include any evidence not presented at trial.
The Ninth Circuit conceded that it was not completely clear what definition of “new evidence” the Court intended federal courts to use when considering successive habeas corpus petitions. It cited a previous Ninth Circuit opinion, Sistrunk v. Armenakis, in its decision to accept a broader standard of what evidence to accept when considering a habeas corpus petition. It also quoted Schlup’s adoption of Judge Friendly’s standard for evidence to be considered, articulated in a law review article published in 1970:
Perhaps as good a formation as any is that . . . in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial. . . 
Thus, the Ninth Circuit ruled, the proper standard was to be a broad one.
The Third and Eighth Circuits do not agree with this broad interpretation of “new evidence” permitted at a habeas hearing. The root of the split’s cause centers on the Eighth Circuit’s decision in Amrine v. Bowersox. In Amrine, the court ruled the appropriate standard for considering new evidence was that it cannot have been discoverable through due diligence at the time of the trial. The Amrine court cited itself in Bannister v. Delo, which held that “new” evidence did not include evidence known about at trial but not presented for the purpose for which the inmate now wishes to present it. Bannister in turn cited the standard it wrote in Pickins v. Lockhart, where the court rejected an inmate’s attempt to include evidence of a statement law enforcement made to him which, he argued, denied him due process. The court reasoned because the inmate heard the officer say the words to him and failed to present them as evidence of denial of his due process at his trial, he could not use it now because it was not “new” evidence. The court held that if due diligence should have made the evidence discoverable at trial, it wasn’t “new.”
In 2010, The Third Circuit ruled in Houck v. Stickman that new evidence cannot have been discoverable through due diligence at the time of trial unless the petitioner couples it with a claim of ineffective counsel.
The exact standard is clear upon an in-depth reading of Schlup. The broader definition of “new” evidence follows the Court’s reasoning in Schlup, and it maximizes the potential of the prevention of innocent people being unjustly incarcerated and/or killed.
The Court in Schlup clearly used Judge Friendly’s broad interpretation of new evidence in its reasoning. The standard articulated in Schlup was that a habeas court must make its determination concerning the petitioner’s innocence “in light of all the evidence, including that alleged to have been illegally admitted . . . wrongly excluded or to have become available only after the trial.” Specifically, the Court ruled the new evidence could be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial. Nowhere in the opinion did the Court limit the category of new evidence to that which couldn’t have been discovered through due diligence at the time of trial.
The seriousness of death penalty sentences necessitates a broad standard of the evidence permitted in a habeas appeal. The death of an innocent person offends the notions of justice and damages the trust the citizens have in our jurisprudence. Giving our prisoners who have new exculpatory evidence a chance to be heard reduces that risk.
Schlup’s exculpatory evidence was of eyewitnesses to his whereabouts at the time of the murder. His presence in prison where every prisoner and employee’s movements and locations were logged and in many cases videotaped means that due diligence should have brought forward those eyewitnesses at his trial. Yet the Court agreed that his new evidence should be heard and it removed him from death row.
The reason our Courts have higher standards for subsequent habeas petitions is to prevent a backlog of habeas hearings from clogging our courts and to preserve the finality of judgments. The Third Circuit, in Hubbard v. Pinchak, expressed concern the broader evidence standard would also result in clogged courts. The Schlup court anticipatorily rejected this claim, stating that habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare.
Finally, the Eighth Circuit’s reliance on the Pickens standard of new evidence only being that which due diligence couldn’t have revealed at the time of trial is faulty. Pickens was decided in 1993, prior to the Schlup decision in 1995. The Supreme Court has never spoken on Pickens specifically, so there is no reason to assume that the Court intended to apply the Pickens standard when it handed down the Schlup ruling.
The need for the prevention of the incarceration and/or death of the innocent, and the words and tone of the Schlup decision, require the broad standard of admissible evidence adopted by the Seventh and Ninth Circuits to be understood. In a subsequent habeas hearing, exculpatory new evidence not heard at trial, but could have been if due diligence had prevailed, should be admissible.
 Schlup v. Delo, 513 U.S. 298, 301-303 (1995).
 A habeas corpus petition is a request by a prisoner to present a case before the court. In essence, it is a prisoner filing an appeal after all the traditional appeals to his conviction have been exhausted. They are treated differently than other appeals because there is a need for finality in our convictions, and there is a policy need to limit the number of times a prisoner can request a court review his conviction.
 373 U.S. 83 (1963). Here, the Supreme Court ruled that the suppression of exculpatory evidence by the prosecution is a violation of due process.
 Schlup, 513 U.S. at 301-313.
 Id. 316-322.
 Id. 322.
 Id. 327.
 Kidd v. Norman, 651 F. 3d 947, 952 (8th Cir. 2011); Carter v. Pierce, 196 F. Supp. 3d 477, n.7 (Del. D. 2016).
 Amnesty International, Death Penalty and Innocence (Nov. 17, 2017, 6:24PM),. https://www.amnestyusa.org/issues/death-penalty/death-penalty-facts/death-penalty-and-innocence.
 Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003); Griffin v. Johnson 350 F.3d 956, 962 (9th Cir. 2003).
 Griffin, 350 F.3d at 962.
 292 F. 3d 669 (9th Cir. 2002).
 Griffin, 350 F. 3d at 962.
 Id. at 961-962 (quoting Schlup, 513 U.S. at 328.).
 Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160.
 Amrine v. Bowersox, 128 F. 3d 1222, 1230 (8th Cir. 1997).
 100 F.3d 610, 618 (8th Cir. 1996).
 Amrine, 128 F.3d at 1230.
 4 F.3d 1446, (8th Cir. 1993).
 Bannister 100 F.3d at 618.
 625 F.3d 88, 93-94 (3d Cir. 2010).
 Id. at 94-95.
 Supra n. 13.
 Schlup, 513 U.S. at 324.
 Id. at 318.
 378 F. 3d 333, 341 (3d Cir. 2004).
 Schlup, 513 U.S. at 322-323.
 Supra n. 19,20.