A criminal trial court judge may grant a convicted defendant a new trial if at any time it appears that justice may not have been done. The trial court judge will weigh the value of finality of the prior judicial proceeding (e.g., plea, bench or jury trial) against our system of justice's reluctance to accept significant injustice.
The fundamental question is whether the defendant's conviction was arrived at fairly. Fundamental fairness is measured on a case-by-case basis. A new trial is typically required where one or more of the following arise.
- ✔ There is newly discovered evidence that casts real doubt on the justice of the conviction in the sense that the new evidence would probably have been a real factor in the jury's deliberation.
- ✔ The defendant demonstrates that prejudicial constitutional error occurred.
- ✔ The defendant demonstrates a substantial risk of a miscarriage of justice, which is defined as serious doubt as to whether the result of the trial might have been different but for the error.
- ✔ The defendant received ineffective assistance of counsel by proving the deprivation of an available ground of defense due to the deficient performance of prior counsel.
The motion for a new trial must tell a compelling story of innocence or injustice. It must be drafted as vividly and creatively as possible. The best chance of success on a new trial motion is in the trial court because, if denied there, appellate review will be for the difficult abuse of discretion standard.
In a nutshell, the evidence must be both new and cast doubt on the justice of the defendant's conviction.
Evidence is new if it was not known to the defendant or defense counsel at the time of trial (or an earlier new trial motion) and was not reasonably discoverable through the exercise of due diligence. Some categories of new evidence include:
- ✔ A witness has recanted their trial testimony.
- ✔ A new percipient witness has been found who could not have been previously discovered through the exercise of due diligence.
- ✔ There are new DNA results that either contradict or eliminate the only physical proof of guilt or the credibility of a key witness.
- ✔ There is newly available scientific evidence that undermines the forensic evidence relied upon at trial.
- ✔ There is proof that the prosecution unjustly withheld the existence of the new evidence.
Evidence casts doubt on the justice of the conviction if it is material, credible, and carries a measure of strength in support of the defense (i.e., it is not purely cumulative of the other trial evidence) and would probably have been a real factor in the jury's deliberations. The new evidence need not show the verdict would have been different.
In a nutshell, prejudicial constitutional error is an error made by the trial court judge that has an identifiably negative impact on the trial such that the constitutional rights of the defendant were compromised and the error was properly raised to the judge in a timely manner so that the judge had the opportunity to reconsider their erroneous decision. The prosecutor must prove that the error was harmless beyond a reasonable doubt. For example:
- ✔ where a trial judge gives a significant and improper instructions of law to the jury, an objection is made, but the error is not corrected by the judge, the defendant is denied the constitutional right to an impartial jury and a fair trial under the Sixth Amendment to the United States Constitution.
- ✔ as a matter of constitutional due process, a defendant's guilty plea should not be accepted, and if accepted must be later set aside, unless the record affirmatively shows that the defendant entered the plea freely and understandingly (e.g., the defendant must understand the immigration consequences of the guilty plea and the essential elements of the crime for which the guilty plea was made).
In a nutshell, a substantial risk of a miscarriage of justice requires extraordinary or problematic factors in the case that must act in concert to demonstrate that justice may not have been done. For example:
- ✔ if the defendant had an undetected stroke mid-way through testifying.
- ✔ where defense counsel's failure to find an expert witness is combined with evolving scientific research demonstrating that a credible expert could now offer important evidence in support of the defense.
- ✔ where new evidence supplements could have influenced the fact-finder's (e.g., jury) global view of the evidence and the integrity of the investigation. Understanding the resulting prejudice requires examining the totality of the case, including how the new evidence might have changed the defense strategy when investigating the case, examining witnesses, and providing a closing argument.
In a nutshell, a defense lawyer's performance must be deficient and that deficiency must prejudice the defendant.
Defense counsel's performance is deficient when seriously incompetent (e.g., inefficient or inattentive) and falls measurably below that which might be expected from an ordinarily fallible attorney.
Defense counsel's performance prejudiced the defendant if that performance deprived the defendant of an otherwise available substantial ground of defense and created serious doubt about whether the result might have been different. The defendant need not show the verdict would have been different.
Examples of ineffective assistance of counsel include the failure of defense counsel to:
- ✔ adequately investigate (e.g., getting and reviewing documents, examining physical evidence, interviewing witnesses, and considering expert defenses).
- ✔ develop a viable defense (e.g., third-party culprit, alibi, locate a critical witness, fail to fulfilled a promise made during defense counsel's opening statement).
- ✔ seek funds for, or to consult with, and expert (e.g., scientific, medical, psychiatric).
- ✔ have forensic tests performed.
- ✔ raise a viable objection (e.g., prejudicial and excludable evidence; improper prosecutor closing argument; or the failure to file a motion to suppress evidence, statements or identifications).
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