Cite as: 513 U. S. 298 (1995)
Rehnquist, C. J., dissenting
like its " 'actual innocence' " counterpart, is "a very narrow exception," and that in order to be "workable it must be subject to determination by relatively objective standards." Id., at 341. Thus, we concluded that a habeas petitioner who challenged his sentence in an otherwise defaulted petition must show "by clear and convincing evidence that but for constitutional error, no reasonable juror would [have found the petitioner] eligible for the death penalty." Id., at 348.
We have never until today had to similarly flesh out the standard of "actual innocence" in the context of a habeas petitioner claiming innocence of the crime. Thus, I agree that the question of what threshold standard should govern is an open one. As I have said earlier, I disagree with the Court's conclusion that Carrier, and not Sawyer, provides the proper standard. But far more troubling than the choice of Carrier over Sawyer is the watered down and confusing version of Carrier which is served up by the Court.
As the Court notes, to satisfy Carrier a habeas petitioner must demonstrate that " 'a constitutional violation has probably resulted in the conviction of one who is actually innocent.' " Ante, at 327 (quoting Carrier, supra, at 496). The Court informs us that a showing of "actual innocence" requires a habeas petitioner to "show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Ante, at 327. But this is a classic mixing of apples and oranges. "More likely than not" is a quintessential charge to a finder of fact, while "no reasonable juror would have convicted him in the light of the new evidence" is an equally quintessential conclusion of law similar to the standard that courts constantly employ in deciding motions for judgment of acquittal in criminal cases. The hybrid which the Court serves up is bound to be a source of confusion. Because new evidence not presented at trial will almost always be involved in these claims of actual innocence, the legal standard for judgment of acquittal cannot
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