392
Syllabus
for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion. Pp. 412-417. (d) Even assuming, for the sake of argument, that in a capital case a truly persuasive post-trial demonstration of "actual innocence" would render a defendant's execution unconstitutional and warrant federal habeas relief if there were no state avenue open to process such a claim, Herrera's showing of innocence falls far short of the threshold showing which would have to be made in order to trigger relief. That threshold would necessarily be extraordinarily high because of the very disruptive effect that entertaining such claims would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States. Although not without probative value, Herrera's affidavits are insufficient to meet such a standard, since they were obtained without the benefit of cross-examination and an opportunity to make credibility determinations; consist, with one exception, of hearsay; are likely to have been presented as a means of delaying Herrera's sentence; were produced not at the trial, but over eight years later and only after the death of the alleged perpetrator, without a satisfactory explanation for the delay or for why Herrera pleaded guilty to the Rucker murder; contain inconsistencies, and therefore fail to provide a convincing account of what took place on the night of the murders; and do not overcome the strong proof of Herrera's guilt that was presented at trial. Pp. 417-419. 954 F. 2d 1029, affirmed.
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. O'Connor, J., filed a concurring opinion, in which Kennedy, J., joined, post, p. 419. Scalia, J., filed a concurring opinion, in which Thomas, J., joined, post, p. 427. White, J., filed an opinion concurring in the judgment, post, p. 429. Black-mun, J., filed a dissenting opinion, in Parts I, II, III, and IV of which Stevens and Souter, JJ., joined, post, p. 430.
Talbot D'Alemberte argued the cause for petitioner. With him on the brief were Robert L. McGlasson, Phyllis L. Crocker, and Mark Evan Olive.
Margaret Portman Griffey, Assistant Attorney General of Texas, argued the cause for respondent. With her on the brief were Dan Morales, Attorney General, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Michael P. Hodge, Dana E. Parker, and Joan C. Barton, Assistant Attorneys General.
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