Rule 57.1.Declaration of factual innocence.

This rule applies when a person's personal identifying information was stolen and then used by someone else who was arrested, cited, charged, or convicted of a crime under the victim's name. The victim can file a petition — assigned its own civil case number and captioned as an “In re” matter — in the superior court of the county where the impersonator was arrested, cited, or charged. The petition must identify the underlying criminal case if known, name everyone entitled to notice under the identity theft statute, and be served on those individuals and entities the same way a summons and complaint would be served. Sensitive identifying details, such as a birth date, social security number, or financial account numbers, can be filed in redacted form or under seal, and if the underlying charge was handled in a justice of the peace or municipal court, the superior court clerk can request that court's file.

Discovery and mandatory disclosure only happen if the parties stipulate or the court orders it, and the petitioner carries the burden of proving factual innocence by clear and convincing evidence. The court can decide the petition after a hearing or on the strength of the submitted affidavits alone, and the victim of the underlying offense has a right to appear and be heard if a hearing is held. Once the court finds factual innocence, it must notify the petitioner along with the prosecuting agency, the law enforcement agency involved, and the defense attorney, as applicable.