630
Scalia, J., dissenting
duced, or objections not made, at the appropriate time cannot be brought forward to reopen the conviction after judgment has been rendered. In the United States, we have developed generous exceptions to the rule of finality, one of which permits reopening, via habeas corpus, when the petitioner shows "cause" excusing the procedural default, and "actual prejudice" resulting from the alleged error. United States v. Frady, 456 U. S. 152, 167-168 (1982). We have gone even beyond that generous exception in a certain class of cases: cases that have actually gone to trial. There we have held that, "even in the absence of a showing of cause for the procedural default," habeas corpus will be granted "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, supra, at 321 (internal quotation marks omitted). In every one of our cases that has considered the possibility of applying this so-called actual-innocence exception, a defendant had asked a habeas court to adjudicate a successive or procedurally defaulted constitutional claim after his conviction by a jury. See Kuhlmann v. Wilson, 477 U. S. 436, 441, 452 (1986) (opinion of Powell, J.); Murray v. Carrier, 477 U. S. 478, 482, 495- 496 (1986); Smith v. Murray, 477 U. S. 527, 529, 537-538 (1986); McCleskey v. Zant, 499 U. S. 467, 471, 502 (1991); Sawyer v. Whitley, 505 U. S. 333, 336-337, 339-340 (1992); Schlup, supra, at 305, 317-332.
There are good reasons for this limitation: First and foremost, it is feasible to make an accurate assessment of "actual innocence" when a trial has been had. In Schlup, for example, we said that to sustain an "actual innocence" claim the petitioner must "show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." 513 U. S., at 327 (emphasis added). That "new evidence" was to be evaluated, of course, along with the "old evidence," consisting of the transcript of the trial. The habeas court was to "make its determination concerning
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