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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
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SUPREME COURT OF THE UNITED STATES
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No. 93-7901
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LLOYD SCHLUP, PETITIONER v. PAUL K. DELO,
SUPERINTENDENT, POTOSI CORRECTIONAL
CENTER
on writ of certiorari to the united states court
of appeals for the eighth circuit
[January 23, 1995]

  Justice Stevens delivered the opinion of the Court.
  Petitioner Lloyd E. Schlup, Jr., a Missouri prisoner
currently under a sentence of death, filed a second
federal habeas corpus petition alleging that constitu-
tional error deprived the jury of critical evidence that
would have established his innocence.  The District
Court, without conducting an evidentiary hearing,
declined to reach the merits of the petition, holding that
petitioner could not satisfy the threshold showing of
-actual innocence- required by Sawyer v. Whitley, 505
U. S. __ (1992).  Under Sawyer, the petitioner must
show -by clear and convincing evidence that but for a
constitutional error, no reasonable juror would have
found the petitioner- guilty.  Id., at __ (slip op., at 1).
The Court of Appeals affirmed.  We granted certiorari to
consider whether the Sawyer standard provides adequate
protection against the kind of miscarriage of justice that
would result from the execution of a person who is
actually innocent.

                            I
  On February 3, 1984, on Walk 1 of the high security
area of the Missouri State Penitentiary, a black inmate
named Arthur Dade was stabbed to death.  Three white
inmates from Walk 2, including petitioner, were charged
in connection with Dade's murder.
  At petitioner's trial in December 1985, the State's
evidence consisted principally of the testimony of two
corrections officers who had witnessed the killing.  On
the day of the murder, Sergeant Roger Flowers was on
duty on Walk 1 and Walk 2, the two walks on the lower
floor of the prison's high security area.  Flowers testified
that he first released the inmates on Walk 2 for their
noon meal and relocked their cells.  After unlocking the
cells to release the inmates on Walk 1,  Flowers noticed
an inmate named Rodnie Stewart moving against the
flow of traffic carrying a container of steaming liquid.
Flowers watched as Stewart threw the liquid in Dade's
face.  According to Flowers, Schlup then jumped on
Dade's back, and Robert O'Neal joined in the attack.
Flowers shouted for help, entered the walk, and grabbed
Stewart as the two other assailants fled.
  Officer John Maylee witnessed the attack from Walk
7, which is three levels and some 40-50 feet above
Walks 1 and 2.  Maylee first noticed Schlup, Stewart,
and O'Neal as they were running from Walk 2 to Walk
1 against the flow of traffic.  According to Maylee's
testimony, Stewart threw a container of liquid at Dade's
face, and then Schlup jumped on Dade's back.  O'Neal
then stabbed Dade several times in the chest, ran down
the walk, and threw the weapon out a window.  Maylee
did not see what happened to Schlup or Stewart after
the stabbing.
  The State produced no physical evidence connecting
Schlup to the killing, and no witness other than Flowers
and Maylee testified to Schlup's involvement in the
murder.
  Schlup's defense was that the State had the wrong
man.  He relied heavily on a videotape from a camera
in the prisoners' dining room.  The tape showed that
Schlup was the first inmate to walk into the dining
room for the noon meal, and that he went through the
line and got his food.  Approximately 65 seconds after
Schlup's entrance, several guards ran out of the dining
room in apparent response to a distress call.  Twenty-six
seconds later, O'Neal ran into the dining room, dripping
blood.  Shortly thereafter, Schlup and O'Neal were
taken into custody.
  Schlup contended that the videotape, when considered
in conjunction with testimony that he had walked at a
normal pace from his cell to the dining room, demon-
strated that he could not have participated in the
assault.  Because the videotape showed conclusively that
Schlup was in the dining room 65 seconds before the
guards responded to the distress call, a critical element
of Schlup's defense was determining when the distress
call went out.  Had the distress call sounded shortly
after the murder, Schlup would not have had time to get
from the prison floor to the dining room, and thus he
could not have participated in the murder.  Conversely,
had there been a delay of several minutes between the
murder and the distress call, Schlup might have had
sufficient time to participate in the murder and still get
to the dining room over a minute before the distress call
went out.
  The prosecutor adduced evidence tending to establish
that such a delay had in fact occurred.  First, Flowers
testified that none of the officers on the prison floor had
radios, thus implying that neither he nor any of the
other officers on the floor was able to radio for help
when the stabbing occurred.  Second, Flowers testified
that after he shouted for help, it took him -a couple [of]
minutes- to subdue Stewart.  Flowers then brought
Stewart downstairs, encountered Captain James Eberle,
and told Eberle that there had been a -disturbance.-
Eberle testified that he went upstairs to the prison floor,
and then radioed for assistance.  Eberle estimated that
the elapsed time from when he first saw Flowers until
he radioed for help was -approximately a minute.-  The
prosecution also offered testimony from a prison investi-
gator who testified that he was able to run from the
scene of the crime to the dining room in 33 seconds and
to walk the distance at a normal pace in a minute and
37 seconds.
  Neither the State nor Schlup was able to present
evidence establishing the exact time of Schlup's release
from his cell on Walk 2, the exact time of the assault on
Walk 1, or the exact time of the radio distress call.
Further, there was no evidence suggesting that Schlup
had hurried to the dining room.
  After deliberating overnight, the jury returned a
verdict of guilty.  Following the penalty phase, at which
the victim of one of Schlup's prior offenses testified
extensively about the sordid details of that offense,
the jury sentenced Schlup to death.  The Missouri
Supreme Court affirmed Schlup's conviction and death
sentence, State v. Schlup, 724 S. W. 2d 236 (Mo. 1987),
and this Court denied certiorari, 482 U. S. 920 (1987).

                           II
  On January 5, 1989, after exhausting his state
collateral remedies, Schlup filed a pro se petition for
a federal writ of habeas corpus, asserting the claim,
among others, that his trial counsel was ineffective for
failing to interview and to call witnesses who could
establish Schlup's innocence.  The District Court
concluded that Schlup's ineffectiveness claim was
procedurally barred, and it denied relief on that claim
without conducting an evidentiary hearing.  The

Court of Appeals affirmed, though it did not rely on the
alleged procedural bar.  941 F. 2d 631 (CA8 1991).
Instead, based on its own examination of the record, the
Court found that trial counsel's performance had not
been constitutionally ineffective, both because counsel
had reviewed statements that Schlup's potential wit-
nesses had given to prison investigators, and because
the testimony of those witnesses -would be repetitive of
the testimony to be presented at trial.-  Id., at 639.
But cf. Schlup v. Delo, 11 F. 3d 738, 746, n. 3 (CA8
1993) (Heaney, J., dissenting) (challenging the conclusion
that such testimony would have been -repetitive-).  The
Court of Appeals denied a petition for rehearing and
suggestion for rehearing en banc, 945 F. 2d 1062 (1991),
and we denied a petition for certiorari.  503 U. S. __
(1992).
  On March 11, 1992, represented by new counsel,
Schlup filed a second federal habeas corpus petition.
That petition raised a number of claims, including that
(1) Schlup was actually innocent of Dade's murder, and
that his execution would therefore violate the Eighth
and Fourteenth Amendments, cf. Herrera v. Collins, 506
U. S. __ (1993); (2) trial counsel was ineffective for
failing to interview alibi witnesses; and (3) the State
had failed to disclose critical exculpatory evidence.  The
petition was supported by numerous affidavits from
inmates attesting to Schlup's innocence.
  The State filed a response arguing that various proce-
dural bars precluded the District Court from reaching
the merits of Schlup's claims and that the claims were
in any event meritless.  Attached to the State's response
were transcripts of inmate interviews conducted by
prison investigators just five days after the murder.
One of the transcripts contained an interview with John
Green, an inmate who at the time was the clerk for the
housing unit.  In his interview, Green stated that he
had been in his office at the end of the walks when the
murder occurred.  Green stated that Flowers had told
him to call for help, and that Green had notified base of
the disturbance shortly after it began.
  Schlup immediately filed a traverse arguing that
Green's affidavit provided conclusive proof of Schlup's
innocence.  Schlup contended that Green's statement
demonstrated that a call for help had gone out shortly
after the incident.  Because the videotape showed that
Schlup was in the dining room some 65 seconds before
the guards received the distress call, Schlup argued that
he could not have been involved in Dade's murder.
Schlup emphasized that Green's statement was not
likely to have been fabricated, because at the time of
Green's interview, neither he nor anyone else would
have realized the significance of Green's call to base.
Schlup tried to buttress his claim of innocence with
affidavits from inmates who stated that they had
witnessed the event and that Schlup had not been
present.  Two of those affidavits suggested that
Randy Jordan-who occupied the cell between O'Neal
and Stewart in Walk 2, and who, as noted above, see n.
4, supra, is shown on the videotape arriving at lunch
with O'Neal-was the third assailant.
  On August 23, 1993, without holding a hearing, the
District Court dismissed Schlup's second habeas petition
and vacated the stay of execution that was then in
effect.  The District Court concluded that Schlup's
various filings did not provide adequate cause for failing
to raise his new claims more promptly.  Moreover, the
Court concluded that Schlup had failed to meet the
Sawyer v. Whitley, 505 U. S. __ (1992), standard for
showing that a refusal to entertain those claims would
result in a fundamental miscarriage of justice.  In its
discussion of the evidence, the Court made no separate
comment on the significance of Green's statement.
  On September 7, 1993, petitioner filed a motion to set
aside the order of dismissal, again calling the Court's
attention to Green's statement.  Two days later, Schlup
filed a supplemental motion stating that his counsel had
located John Green and had obtained an affidavit
from him.  That affidavit confirmed Green's postincident
statement that he had called base shortly after the
assault.  Green's affidavit also identified Jordan rather
than Schlup as the third assailant.  The District
Court denied the motion and the supplemental motion
without opinion.
  Petitioner then sought from the Court of Appeals a
stay of execution pending the resolution of his appeal.
Relying on Justice Powell's plurality opinion in Kuhl-
mann v. Wilson, 477 U. S. 436 (1986), Schlup argued
that the District Court should have entertained his
second habeas corpus petition, because he had supple-
mented his constitutional claim -with a colorable
showing of factual innocence.-  Id., at 454.
  On October 15, 1993, the Court of Appeals denied the
stay application.  In an opinion that was subsequently
vacated, the majority held that petitioner's claim of
innocence was governed by the standard announced in
Sawyer v. Whitley, 505 U. S. __ (1992), and it concluded
that under that standard, the evidence of Schlup's guilt
that had been adduced at trial foreclosed consideration
of petitioner's current constitutional claims.
  Judge Heaney dissented.  Relying on Green's affidavit,
the videotape, and the affidavits of four other eyewit-
nesses, Judge Heaney concluded that the petitioner had
met both the Kuhlmann standard and a proper reading
of the Sawyer standard.  Cf. infra, at 33.  He be-
lieved that the district court should have conducted an
evidentiary hearing in which the affiants would have
been subjected to examination by the State so -their
credibility could be accurately determined.-
  In the meantime, petitioner's counsel obtained an
affidavit from Robert Faherty, the former lieutenant at
the prison whom Schlup had passed on the way to lunch
on the day of the murder and who had reprimanded
Schlup for shouting out the window.  See n. 10, supra.
Faherty's affidavit stated that Schlup had been in
Faherty's presence for at least two and a half minutes;
that Schlup was walking at a leisurely pace; and that
Schlup -was not perspiring or breathing hard, and he
was not nervous.-  Affidavit of Robert Faherty -- 4, 6
(Oct. 26, 1993).
  On November 15, 1993, the Court of Appeals vacated
its earlier opinion and substituted a more comprehensive
analysis of the law to support its decision to deny
Schlup's request for a stay.  11 F. 3d 738.  The majority
adhered to its earlier conclusion that Sawyer stated the
appropriate standard for evaluating Schlup's claim of
actual innocence.  11 F. 3d, at 740.  The opinion also
contained an extended discussion of Schlup's new
evidence.  The Court noted in particular that Green's
new affidavit was inconsistent in part with both his
prison interview and his testimony at the Stewart trial.
Id., at 742.  The Court viewed Faherty's affidavit as
simply -an effort to embellish and expand upon his
testimony- and concluded -that a habeas court should
not permit retrial on such a basis.-  Id., at 743.
  Judge Heaney again dissented, concluding that Schlup
had -presented truly persuasive evidence that he is
actually innocent,- and that the District Court should
therefore have addressed the merits of Schlup's constitu-
tional claims.  Id., at 744.  Judge Heaney also argued
that Schlup's ineffectiveness claim was substantial.  He
noted that Schlup's trial counsel failed to conduct
individual interviews with Griffin Bey, McCoy, or any of
the other inmates who told investigators that they had
seen the killing.  Moreover, counsel failed to interview
Green about his statement that he had called base.  In
fact, counsel apparently failed to conduct individual
interviews with any of the potential witnesses to the
crime.
  Judge Heaney adhered to his conclusion that Schlup's
counsel was ineffective, even though counsel allegedly
had reviewed 100 interviews conducted by prison
investigators.  Judge Heaney argued that counsel's
review of the interview transcripts-rather than demon-
strating counsel's effectiveness-made counsel's failure to
conduct his own interviews with Green and the few
inmates who admitted seeing the attack even more trou-
bling.  See id., at 747, n. 5.  Judge Heaney concluded
that Schlup's case should be remanded to the District
Court to conduct an evidentiary hearing and, if appropri-
ate, to address the merits of Schlup's constitutional
claims.
  On November 17, 1993, the Court of Appeals denied
a suggestion for rehearing en banc.  Dissenting from
that denial, three judges joined an opinion describing the
question whether the majority should have applied the
standard announced in Sawyer v. Whitley, supra, rather
than the Kuhlmann standard as -a question of great
importance in habeas corpus jurisprudence.-  11 F. 3d,
at 755.  We granted certiorari to consider that question.
511 U. S. __ (1994).

                           III
  As a preliminary matter, it is important to explain the
difference between Schlup's claim of actual innocence
and the claim of actual innocence asserted in Herrera v.
Collins, 506 U. S. __ (1993).  In Herrera, the petitioner
advanced his claim of innocence to support a novel
substantive constitutional claim, namely that the
execution of an innocent person would violate the Eighth
Amendment.  Under petitioner's theory in Herrera,
even if the proceedings that had resulted in his convic-
tion and sentence were entirely fair and error-free, his
innocence would render his execution a -constitutionally
intolerable event.-  Id., at __ (slip op., at 1) (O'Connor,
J., concurring).
  Schlup's claim of innocence, on the other hand, is
procedural, rather than substantive.  His constitutional
claims are based not on his innocence, but rather on his
contention that the ineffectiveness of his counsel, see
Strickland v. Washington, 466 U. S. 668 (1984), and the
withholding of evidence by the prosecution, see Brady v.
Maryland, 373 U. S. 83 (1963), denied him the full
panoply of protections afforded to criminal defendants by
the Constitution.  Schlup, however, faces procedural
obstacles that he must overcome before a federal court
may address the merits of those constitutional claims.
Because Schlup has been unable to establish -cause and
prejudice- sufficient to excuse his failure to present his
evidence in support of his first federal petition, see
McCleskey v. Zant, 499 U. S. 467, 493-494 (1991),
Schlup may obtain review of his constitutional claims
only if he falls within the -narrow class of cases . . .
implicating a fundamental miscarriage of justice.-  Id.,
at 494.  Schlup's claim of innocence is offered only to
bring him within this -narrow class of cases.-
  Schlup's claim thus differs in at least two important
ways from that presented in Herrera.  First, Schlup's
claim of innocence does not by itself provide a basis for
relief.  Instead, his claim for relief depends critically on
the validity of his Strickland and Brady claims.
Schlup's claim of innocence is thus -not itself a constitu-
tional claim, but instead a gateway through which a
habeas petitioner must pass to have his otherwise
barred constitutional claim considered on the merits.-
Herrera, 506 U. S., at __ (slip op., at 13); see also 11
F. 3d, at 740.
  More importantly, a court's assumptions about the
validity of the proceedings that resulted in conviction are
fundamentally different in Schlup's case than in
Herrera's.  In Herrera, petitioner's claim was evaluated
on the assumption that the trial that resulted in his
conviction had been error-free.  In such a case, when a
petitioner has been -tried before a jury of his peers,
with the full panoply of protections that our Constitution
affords criminal defendants,- 506 U. S., at __ (slip op.,
at 2) (O'Connor, J., concurring), it is appropriate to
apply an -`extraordinarily high'- standard of review.
Id., at __ (slip op., at 9) (O'Connor, J., concurring).
  Schlup, in contrast, accompanies his claim of innocence
with an assertion of constitutional error at trial.  For
that reason, Schlup's conviction may not be entitled to
the same degree of respect as one, such as Herrera's,
that is the product of an error-free trial.  Without any
new evidence of innocence, even the existence of a
concededly meritorious constitutional violation is not in
itself sufficient to establish a miscarriage of justice that
would allow a habeas court to reach the merits of a
barred claim.  However, if a petitioner such as Schlup
presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless
the court is also satisfied that the trial was free of non-
harmless constitutional error, the petitioner should be
allowed to pass through the gateway and argue the
merits of his underlying claims.
  Consequently, Schlup's evidence of innocence need
carry less of a burden.  In Herrera (on the assumption
that petitioner's claim was, in principle, legally well
founded), the evidence of innocence would have had to
be strong enough to make his execution -constitutionally
intolerable- even if his conviction was the product of a
fair trial.  For Schlup, the evidence must establish
sufficient doubt about his guilt to justify the conclusion
that his execution would be a miscarriage of justice
unless his conviction was the product of a fair trial.
  Our rather full statement of the facts illustrates the
foregoing distinction between a substantive Herrera
claim and Schlup's procedural claim.  Three items of
evidence are particularly relevant: the affidavit of black
inmates attesting to the innocence of a white defendant
in a racially motivated killing; the affidavit of Green
describing his prompt call for assistance; and the
affidavit of Lieutenant Faherty describing Schlup's
unhurried walk to the dining room.  If there were no
question about the fairness of the criminal trial, a
Herrera-type claim would have to fail unless the federal
habeas court is itself convinced that those new facts
unquestionably establish Schlup's innocence.  On the
other hand, if the habeas court were merely convinced
that those new facts raised sufficient doubt about
Schlup's guilt to undermine confidence in the result of
the trial without the assurance that that trial was
untainted by constitutional error, Schlup's threshold
showing of innocence would justify a review of the
merits of the constitutional claims.

                           IV
  As this Court has repeatedly noted, -[a]t common law,
res judicata did not attach to a court's denial of habeas
relief.-  McCleskey, 499 U. S., at 479.  Instead, -`a
renewed application could be made to every other judge
or court in the realm, and each court or judge was
bound to consider the question of the prisoner's right to
a discharge independently, and not to be influenced by
the previous decisions refusing discharge.'-  Ibid.,
quoting W. Church, Writ of Habeas Corpus 386, p. 570
(2d ed. 1893).
  The Court has explained the early tolerance of succes-
sive petitions, in part, by the fact that the writ originally
performed only the narrow function of testing either the
jurisdiction of the sentencing court or the legality of
Executive detention.  See McCleskey, 499 U. S., at 478;
Wainwright v. Sykes, 433 U. S. 72, 78 (1977).  The
scope of the writ later expanded beyond its original
narrow purview to encompass review of constitutional
error that had occurred in the proceedings leading to
conviction.  See McCleskey, 499 U. S., at 478-479;
Wainwright v. Sykes, 433 U. S., at 79.  That broadening
of the scope of the writ created the risk that repetitious
filings by individual petitioners might adversely affect
the administration of justice in the federal courts.  Such
filings also posed a threat to the finality of state court
judgments and to principles of comity and federalism.
See, e. g., McCleskey, 499 U. S., at 491; Murray v.
Carrier, 477 U. S. 478, 487 (1986).
  To alleviate the increasing burdens on the federal
courts and to contain the threat to finality and comity,
Congress attempted to fashion rules disfavoring claims
raised in second and subsequent petitions.  For example,
in 1966, Congress amended 28 U. S. C. 2244(b) -to
introduce `a greater degree of finality of judgments in
habeas corpus proceedings.'-  Kuhlmann v. Wilson, 477
U. S., at 450, quoting S. Rep. No. 1797, 89th Cong., 2d
Sess., 2 (1966) (Senate Report); see also McCleskey, 499
U. S., at 486.  Similarly, in 1976, Congress promulgated
Rule 9(b) of the Rules Governing Habeas Corpus
Proceedings in part to deal with the problem of repeti-
tive filings.
  These same concerns resulted in a number of recent
decisions from this Court that delineate the circum-
stances under which a district court may consider claims
raised in a second or subsequent habeas petition.  In
those decisions, the Court held that a habeas court may
not ordinarily reach the merits of successive claims,
Kuhlmann v. Wilson, 477 U. S. 436, or abusive claims,
McCleskey, 499 U. S., at 493, absent a showing of cause
and prejudice, see Wainwright v. Sykes, 433 U. S. 72
(1977).  The application of cause and prejudice to
successive and abusive claims conformed to this Court's
treatment of procedurally defaulted claims.  Carrier, 477
U. S. 478; see also McCleskey, 499 U. S., at 490-491
(-The doctrines of procedural default and abuse of the
writ implicate nearly identical concerns flowing from the
significant costs of federal habeas corpus review-).  See
generally Sawyer, 505 U. S., at __ (slip op., at 2-4).
The net result of this congressional and judicial action
has been the adoption in habeas corpus of a -`qualified
application of the doctrine of res judicata.'-  McCleskey,
499 U. S., at 486, quoting S. Rep. No. 1797, 89th Cong.,
2d Sess., 2 (1966) (Senate Report).
  At the same time, the Court has adhered to the
principle that habeas corpus is, at its core, an equitable
remedy.  This Court has consistently relied on the
equitable nature of habeas corpus to preclude application
of strict rules of res judicata.  Thus, for example, in
Sanders v. United States, 373 U. S. 1 (1963), this Court
held that a habeas court must adjudicate even a succes-
sive habeas claim when required to do so by the -ends
of justice.-  Id., at 15-17; see also McCleskey, 499 U. S.,
at 495.  The Sanders Court applied this equitable
exception even to petitions brought under 28 U. S. C.
2255, though the language of 2255 contained no
reference to an -ends of justice- inquiry.  Sanders, 373
U. S., at 12-15.
  We firmly established the importance of the equitable
inquiry required by the ends of justice in -a trio of 1986
decisions- handed down on the same day.  Sawyer, 505
U. S., at __ (slip op., at 4) (referring to Kuhlmann, 477
U. S. 436, Carrier, 477 U. S. 478, and Smith v. Murray,
477 U. S. 527 (1986)).  In Kuhlmann, seven Members of
this Court squarely rejected the argument that in light
of the 1966 amendments, -federal courts no longer must
consider the `ends of justice' before dismissing a succes-
sive petition.-  See 477 U. S., at 451 (plurality opinion);
id., at 468-471 (Brennan, J., dissenting); id., at 476-477
(Stevens, J., dissenting); see also Sawyer v. Whitley, 505
U. S., at __ (slip op., at 4) (noting that in Kuhlmann,
-[w]e held that despite the removal of [the reference to
the ends of justice] from 28 U. S. C. 2244(b) in 1966,
the miscarriage of justice exception would allow succes-
sive claims to be heard-).  Thus, while recognizing that
successive petitions are generally precluded from review,
Justice Powell's plurality opinion expressly noted that
there are -limited circumstances under which the
interests of the prisoner in relitigating constitutional
claims held meritless on a prior petition may outweigh
the countervailing interests served by according finality
to the prior judgment.-  477 U. S., at 452.  Similarly,
writing for the Court in Carrier, Justice O'Connor
observed that the Court had adopted the cause and
prejudice standard in part because of its confidence that
that standard would provide adequate protection to
-`victims of a fundamental miscarriage of justice,'- see
Carrier, 477 U. S., at 495-496, quoting Engle v. Isaac,
456 U. S. 107, 135 (1982); however, Justice O'Connor
also noted that the Court has candidly refused to
-pretend that this will always be true.-  Carrier, 477
U. S., at 496.  For that reason, -`[i]n appropriate cases,'
the principles of comity and finality that inform the
concepts of cause and prejudice `must yield to the
imperative of correcting a fundamentally unjust incarcer-
ation.'-  Id., at 495, quoting Engle v. Isaac, 456 U. S.,
at 135; see also Smith v. Murray, 477 U. S., at 537.  In
subsequent cases, we have consistently reaffirmed the
existence and importance of the exception for fundamen-
tal miscarriages of justice.  See, e. g., Sawyer, 505 U. S.,
at __ (slip op., at 2-6); McCleskey, 499 U. S., at
494-495; Dugger v. Adams, 489 U. S. 401, 414 (1989).
  To ensure that the fundamental miscarriage of justice
exception would remain -rare- and would only be applied
in the -extraordinary case,- while at the same time
ensuring that the exception would extend relief to those
who were truly deserving, this Court explicitly tied the
miscarriage of justice exception to the petitioner's
innocence.  In Kuhlmann, for example, Justice Powell
concluded that a prisoner retains an overriding -interest
in obtaining his release from custody if he is innocent of
the charge for which he was incarcerated.  That interest
does not extend, however, to prisoners whose guilt is
conceded or plain.-  477 U. S., at 452.  Similarly,
Justice O'Connor wrote in Carrier that -in an extraor-
dinary case, where a constitutional violation has proba-
bly resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even
in the absence of a showing of cause for the procedural
default.-  477 U. S., at 496; see also Smith v. Murray,
477 U. S., at 537, quoting Carrier, 477 U. S., at 496.
  The general rule announced in Kuhlmann, Carrier,
and Smith, and confirmed in this Court's more recent
decisions, rests in part on the fact that habeas corpus
petitions that advance a substantial claim of actual
innocence are extremely rare.  Judge Friendly's
observation a quarter of a century ago that -the one
thing almost never suggested on collateral attack is that
the prisoner was innocent of the crime- remains largely
true today.  Explicitly tying the miscarriage of justice
exception to innocence thus accommodates both the
systemic interests in finality, comity, and conservation
of judicial resources, and the overriding individual
interest in doing justice in the -extraordinary case,-
Carrier, 477 U. S., at 496.
  In addition to linking miscarriages of justice to
innocence, Carrier and Kuhlmann also expressed the
standard of proof that should govern consideration of
those claims.  In Carrier, for example, the Court stated
that the petitioner must show that the constitutional
error -probably- resulted in the conviction of one who
was actually innocent.  The Kuhlmann plurality, though
using the term -colorable claim of factual innocence,-
elaborated that the petitioner would be required to
establish, by a -`fair probability,'- that -`the trier of the
facts would have entertained a reasonable doubt of his
guilt.'-  477 U. S., at 454, 455, n. 17.
  In the years following Kuhlmann and Carrier, we did
not expound further on the actual innocence exception.
In those few cases that mentioned the standard, the
Court continued to rely on the formulations set forth in
Kuhlmann and Carrier.  In McCleskey, for example,
while establishing that cause and prejudice would
generally define the situations in which a federal court
might entertain an abusive petition, the Court recog-
nized an exception for cases in which the constitutional
violation -probably has caused the conviction of one
innocent of the crime.-  499 U. S., at 494, citing Carrier,
477 U. S., at 485.
  Then, in Sawyer, the Court examined the miscarriage
of justice exception as applied to a petitioner who
claimed he was -actually innocent of the death penalty.-
In that opinion, the Court struggled to define -actual
innocence- in the context of a petitioner's claim that his
death sentence was inappropriate.  The Court concluded
that such actual innocence -must focus on those ele-
ments which render a defendant eligible for the death
penalty.-  505 U. S., at __ (slip op., at 13).  However, in
addition to defining what it means to be -innocent- of
the death penalty, the Court departed from Carrier's use
of -probably- and adopted a more exacting standard of
proof to govern these claims: the Court held that a
habeas petitioner -must show by clear and convincing
evidence that but for a constitutional error, no reason-
able juror would have found the petitioner eligible for
the death penalty.-  505 U. S., at __ (slip op., at 1)
(emphasis added).  No attempt was made in Sawyer
to reconcile this stricter standard with Carrier's use of
-probably.-

                            V
  In evaluating Schlup's claim of innocence, the Court of
Appeals applied Eighth Circuit precedent holding that
Sawyer, rather than Carrier, supplied the proper legal
standard.  The Court then purported to apply the
Sawyer standard.  Schlup argues that Sawyer has no
application to a petitioner who claims that he is actually
innocent of the crime, and that the Court of Appeals
misapplied Sawyer in any event.  Respondent contends
that the Court of Appeals was correct in both its
selection and its application of the Sawyer standard.
Though the Court of Appeals seems to have misapplied
Sawyer, we do not rest our decision on that ground
because we conclude that in a case such as this, the
Sawyer standard does not apply.
  As we have stated, the fundamental miscarriage of
justice exception seeks to balance the societal interests
in finality, comity, and conservation of scarce judicial
resources with the individual interest in justice that
arises in the extraordinary case.  We conclude that
Carrier, rather than Sawyer, properly strikes that
balance when the claimed injustice is that constitutional
error has resulted in the conviction of one who is
actually innocent of the crime.
  Claims of actual innocence pose less of a threat to
scarce judicial resources and to principles of finality and
comity than do claims that focus solely on the erroneous
imposition of the death penalty.  Though challenges to
the propriety of imposing a sentence of death are
routinely asserted in capital cases, experience has taught
us that a substantial claim that constitutional error has
caused the conviction of an innocent person is extremely
rare.  See supra, at 22-23.  To be credible, such a claim
requires petitioner to support his allegations of constitu-
tional error with new reliable evidence-whether it be
exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence-that was not
presented at trial.  Because such evidence is obviously
unavailable in the vast majority of cases, claims of
actual innocence are rarely successful.  Even under the
pre-Sawyer regime, -in virtually every case, the allega-
tion of actual innocence has been summarily rejected.-
The threat to judicial resources, finality, and comity
posed by claims of actual innocence is thus significantly
less than that posed by claims relating only to sentenc-
ing.
  Of greater importance, the individual interest in avoid-
ing injustice is most compelling in the context of actual
innocence.  The quintessential miscarriage of justice is
the execution of a person who is entirely innocent.
Indeed, concern about the injustice that results from the
conviction of an innocent person has long been at the
core of our criminal justice system.  That concern is
reflected, for example, in the -fundamental value
determination of our society that it is far worse to
convict an innocent man than to let a guilty man go
free.-  In re Winship, 397 U. S. 358, 372 (1970) (Harlan,
J., concurring).  See also Starkie, Evidence 751 (1824)
(-The maxim of the law is . . . that it is better that
ninety-nine . . . offenders shall escape than that one
innocent man be condemned-).  See generally Newman,
Beyond -Reasonable Doubt,- 68 N. Y. U. L. Rev. 979,
980-981 (1993).
  The overriding importance of this greater individual
interest merits protection by imposing a somewhat less
exacting standard of proof on a habeas petitioner
alleging a fundamental miscarriage of justice than on
one alleging that his sentence is too severe.  As this
Court has noted, -a standard of proof represents an
attempt to instruct the factfinder concerning the degree
of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of
adjudication.-  In re Winship, 397 U. S., at 370 (Harlan,
J., concurring); see also Addington v. Texas, 441 U. S.
418, 423 (1979).  The standard of proof thus reflects -the
relative importance attached to the ultimate decision.-
Id., at 423.  Though the Sawyer standard was fashioned
to reflect the relative importance of a claim of an
erroneous sentence, application of that standard to
petitioners such as Schlup would give insufficient weight
to the correspondingly greater injustice that is impli-
cated by a claim of actual innocence.  The paramount
importance of avoiding the injustice of executing one
who is actually innocent thus requires application of the
Carrier standard.
  We recognize, as the State has reminded us, that in
Sawyer the Court applied its new standard not only to
the penalty phase of the case but also to Sawyer's
responsibility for arson, one of the elements of the
offense of first-degree murder.  This fact does not
require application of the Sawyer standard to a case
such as Schlup's.  Though formulated as an element of
the offense of first-degree murder, the arson functioned
essentially as a sentence enhancer.  That claim, there-
fore, is readily distinguishable from a claim, like the one
raised by Schlup, that the petitioner is actually innocent.
Fealty to the doctrine of stare decisis does not, therefore,
preclude application of the Carrier standard to the facts
of this case.
  Accordingly, we hold that the Carrier -probably re-
sulted- standard rather than the more stringent Sawyer
standard must govern the miscarriage of justice inquiry
when a petitioner who has been sentenced to death
raises a claim of actual innocence to avoid a procedural
bar to the consideration of the merits of his constitution-
al claims.

                           VI
  The Carrier standard requires the habeas petitioner to
show that -a constitutional violation has probably re-
sulted in the conviction of one who is actually innocent.-
477 U. S., at 496.  To establish the requisite probability,
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.  The petitioner thus is
required to make a stronger showing than that needed
to establish prejudice.  At the same time, the showing
of -more likely than not- imposes a lower burden of
proof than the -clear and convincing- standard required
under Sawyer.  The Carrier standard thus ensures that
petitioner's case is truly -extraordinary,-  McCleskey, 499
U. S., at 494, while still providing petitioner a meaning-
ful avenue by which to avoid a manifest injustice.
  Carrier requires a petitioner to show that he is -actu-
ally innocent.-  As used in Carrier, actual innocence is
closely related to the definition set forth by this Court
in Sawyer.  To satisfy the Carrier gateway standard, a
petitioner must show that it is more likely than not that
no reasonable juror would have found petitioner guilty
beyond a reasonable doubt.
  Several observations about this standard are in order.
The Carrier standard is intended to focus the inquiry on
actual innocence.  In assessing the adequacy of petition-
er's showing, therefore, the district court is not bound by
the rules of admissibility that would govern at trial.
Instead, the emphasis on -actual innocence- allows the
reviewing tribunal also to consider the probative force of
relevant evidence that was either excluded or unavail-
able at trial.  Indeed, with respect to this aspect of the
Carrier standard, we believe that Judge Friendly's
description of the inquiry is appropriate: the habeas
court must make its determination concerning the
petitioner's innocence -in light of all the evidence,
including that alleged to have been illegally admitted
(but with due regard to any unreliability of it) and
evidence tenably claimed to have been wrongly excluded
or to have become available only after the trial.-
  The consideration in federal habeas proceedings of a
broader array of evidence does not modify the essential
meaning of -innocence.-  The Carrier standard reflects
the proposition, firmly established in our legal system,
that the line between innocence and guilt is drawn with
reference to a reasonable doubt.  See In re Winship, 397
U. S. 358.  Indeed, even in Sawyer, with its emphasis
on eligibility for the death penalty, the Court did not
stray from the understanding that the eligibility deter-
mination must be made with reference to reasonable
doubt.  Thus, whether a court is assessing eligibility for
the death penalty under Sawyer, or is deciding whether
a petitioner has made the requisite showing of innocence
under Carrier, the analysis must incorporate the under-
standing that proof beyond a reasonable doubt marks
the legal boundary between guilt and innocence.
  The meaning of actual innocence as formulated by
Sawyer and Carrier does not merely require a showing
that a reasonable doubt exists in the light of the new
evidence, but rather that no reasonable juror would have
found the defendant guilty.  It is not the district court's
independent judgment as to whether reasonable doubt
exists that the standard addresses; rather the standard
requires the district court to make a probabilistic
determination about what reasonable, properly instructed
jurors would do.  Thus, a petitioner does not meet the
threshold requirement unless he persuades the district
court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond
a reasonable doubt.
  We note finally that the Carrier standard requires a
petitioner to show that it is more likely than not that
-no reasonable juror- would have convicted him.  The
word -reasonable- in that formulation is not without
meaning.  It must be presumed that a reasonable juror
would consider fairly all of the evidence presented.  It
must also be presumed that such a juror would conscien-
tiously obey the instructions of the trial court requiring
proof beyond a reasonable doubt.
  Though the Carrier standard requires a substantial
showing, it is by no means equivalent to the Jackson
standard that governs review of claims of insufficient
evidence.  The Jackson standard, which focuses on
whether any rational juror could have convicted, looks to
whether there is sufficient evidence which, if credited,
could support the conviction.  The Jackson standard thus
differs in at least two important ways from the Carrier
standard.  First, under Jackson, the assessment of the
credibility of witnesses is generally beyond the scope of
review.  In contrast, under the gateway standard we
describe today, the newly presented evidence may indeed
call into question the credibility of the witnesses
presented at trial.  In such a case, the habeas court may
have to make some credibility assessments.  Second, and
more fundamentally, the focus of the inquiry is different
under Jackson than under Carrier.  Under Jackson, the
use of the word -could- focuses the inquiry on the power
of the trier of the fact to reach its conclusion.  Under
Carrier, the use of the word -would- focuses the inquiry
on the likely behavior of the trier of fact.
  Indeed, our adoption of the phrase -more likely than
not- reflects this distinction.  Under Jackson, the
question whether the trier of fact has power to make a
finding of guilt requires a binary response: either the
trier of fact has power as a matter of law or it does not.
Under Carrier, in contrast, the habeas court must
consider what reasonable triers of fact are likely to do.
Under this probabilistic inquiry, it makes sense to have
a probabilistic standard such as -more likely than
not.-  Thus, though under Jackson the mere existence
of sufficient evidence to convict would be determinative
of petitioner's claim, that is not true under Carrier.
  We believe that the Eighth Circuit's erroneous applica-
tion of the Sawyer standard below illustrates this
difference.  In determining that Schlup had failed to
satisfy the Sawyer standard, the majority noted that
-two prison officials, who were eyewitnesses to the
crime, positively identified Mr. Schlup as one of the
three perpetrators of the murder. This evidence was
clearly admissible and stands unrefuted except to the
extent that Mr. Schlup now questions its credibility.-
11 F. 3d, at 741.
  The majority then continued:
-[E]ven if we disregard the source of the new evi-
dence, the eleventh-hour nature of the information,
and a presentation coming almost six years after
the trial; it is simply not possible to say that the
appellant has shown by clear and convincing evi-
dence that but for a constitutional error no reason-
able jury would have found him guilty.-  Ibid.
  However, Schlup's evidence includes the sworn state-
ments of several eyewitnesses that Schlup was not
involved in the crime.  Moreover, Schlup has presented
statements from Green and Faherty that cast doubt on
whether Schlup could have participated in the murder
and still arrived at the dining room 65 seconds before
the distress call was received.  Those new statements
may, of course, be unreliable.  But if they are true-as
the Court of Appeals assumed for the purpose of apply-
ing its understanding of the Sawyer standard-it surely
cannot be said that a juror, conscientiously following the
judge's instructions requiring proof beyond a reasonable
doubt, would vote to convict.  Under a proper applica-
tion of either Sawyer or Carrier, petitioner's showing of
innocence is not insufficient solely because the trial
record contained sufficient evidence to support the jury's
verdict.
  In this case, the application of the Carrier standard
arises in the context of a request for an evidentiary
hearing.  In applying the Carrier standard to such a
request, the District Court must assess the probative
force of the newly presented evidence in connection with
the evidence of guilt adduced at trial.  Obviously, the
Court is not required to test the new evidence by a
standard appropriate for deciding a motion for summary
judgment.  Cf. Agosto v. INS, 436 U. S. 748, 756 (1978)
(-a district court generally cannot grant summary judg-
ment based on its assessment of the credibility of the
evidence presented-); Anderson v. Liberty Lobby, Inc.,
477 U. S. 242, 249 (1986) (-at the summary judgment
stage the judge's function is not himself to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial-).
Instead, the Court may consider how the timing of the
submission and the likely credibility of the affiants bear
on the probable reliability of that evidence.
  Because both the Court of Appeals and the District
Court evaluated the record under an improper standard,
further proceedings are necessary.  The fact-intensive
nature of the inquiry, together with the District Court's
ability to take testimony from the few key witnesses if
it deems that course advisable, convinces us that the
most expeditious procedure is to order that the decision
of the Court of Appeals be vacated and that the case be
remanded to the Court of Appeals with instructions to
remand to the District Court for further proceedings
consistent with this opinion.
                                      It is so ordered.