346
Opinion of the Court
a claim of actual innocence may with relative ease determine whether a submission, for example, that a killing was not intentional, consists of credible, noncumulative, and admissible evidence negating the element of intent. But it is a far more difficult task to assess how jurors would have reacted to additional showings of mitigating factors, particularly considering the breadth of those factors that a jury under our decisions must be allowed to consider.14
The Court of Appeals in this case took the middle ground among these three possibilities for defining "actual innocence" of the death penalty, and adopted this test:
"[W]e must require the petitioner to show, based on the evidence proffered plus all record evidence, a fair probability that a rational trier of fact would have entertained a reasonable doubt as to the existence of those facts which are prerequisites under state or federal law for the imposition of the death penalty." 945 F. 2d, at 820 (footnotes omitted).
14 The "clearly-erroneous" standard suggested by Justice Stevens' opinion concurring in the judgment suffers from this weakness and others as well. The term "clearly erroneous" derives from Federal Rule of Civil Procedure 52(a), which provides that "findings of fact [in actions tried without a jury] shall not be set aside unless clearly erroneous." Justice Stevens wrenches the term out of this context—where it applies to written factual findings made by a trial judge—and would apply it to the imposition of the death sentence by a jury or judge. Not only is the latter determination different both quantitatively and qualitatively from a finding of fact in a bench trial, but Justice Stevens would not even bring with the term its established meaning in reviewing factfindings in bench trials. We held in United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948), and reaffirmed in Anderson v. Bessemer City, 470 U. S. 564, 573 (1985), that " '[a] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " But Justice Stevens would apparently equate it with the standard traditionally used for review of jury verdicts—that no reasonable sentencer could have imposed the death penalty. Post, at 371. Cf. Jackson v. Virginia, 443 U. S. 307, 316-318 (1979).
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