The Appellate Group

Ashby v. State

Ashby v. State, 2023 UT 19 (Hagen, J.)


Mother was convicted of sexually abusing her son. A decade later, Son recanted and explained that he lied about his mother’s abuse. On a hearing for a post-conviction determination of factual innocence based on Son’s recantation, the district court denied Mother’s petition because, it stated, Son’s recantation did not meet the clear and convincing evidence burden of proof. On direct appeal, the Utah Supreme Court reversed and remanded, holding:

  • The district court erred when it determined that Son’s recantation did not meet the clear and convincing standard.
  • The district court erred when it denied the innocence petition without weighing all the relevant evidence, assessing credibility, or making an ultimate finding on the recantation’s veracity. Here, there is ample evidence in the record that weighs in favor of the recantation’s reliability.
  • The district court’s implicit credibility determination was based on a clearly erroneous finding that certain facts were undisputed.
  • Judicial tip: There is no presumption that the recantation—as opposed to the trial testimony—is false. Determining which story to credit requires a careful examination of the retracting witness’s credibility under oath and the circumstances surrounding the recantation.

Read the full court opinion