The trial is over, and you have been convicted and sentenced. Suddenly, you or your attorney learn about new evidence, and it is evidence that could have changed the outcome. So what happens now? Most people would assume that an appeal is the next step. Ordinarily, without new evidence, that might be correct. However, newly discovered evidence will not be reviewed by the appellate court. You will need to take a different approach to use new evidence and still have the potential for a successful appeal. If you believe you have new evidence that the court should see, an experienced criminal defense attorney with the Law Office Of Benjamin Greenwald may be able to examine that evidence, determine whether the court would be likely to review it, and assist with filing the appropriate court documents to request such a review. Call (845) 567-4820 to schedule an appointment and review your case.
When and How Can Newly Discovered Evidence Be Introduced After the Trial?
In criminal trials, there is often a significant amount of evidence. Some are strong, some weak. Some of this evidence is clearly relevant, such as a murder weapon in a murder trial, while other evidence may be less obviously relevant or even circumstantial. While it is not a free-for-all to admit anything and everything during a trial, judges have significant discretion in what they can accept as evidence. However, once the trial is over, newly discovered evidence must meet specific criteria that are relatively strict. This ensures that the courts are not bogged down with people using insignificant evidence that makes no difference to their cases.
For the court to consider a motion about new evidence, the evidence must meet the following criteria:
- Discovered After the Trial: Newly discovered means that the evidence must have been found after the trial; it cannot be evidence that the defense knew about and withheld during the trial.
- Could Not Be Discovered During Trial: The evidence must not have been discoverable before or during the trial with reasonable diligence.
- Is Material to the Case: The evidence must be material, or relevant, to the case and significant enough to potentially change the outcome.
- Not Be Cumulative: Courts will not consider new evidence that is merely a repeat or corroboration of previously presented evidence.
- Not Be for Impeachment Only: The evidence cannot be solely about impeaching, or attacking the credibility of, a witness. However, if the conviction relies heavily on a witness’s testimony, evidence of recantation of their statement or of inconsistent statements may be considered.
- Likely to Change the Verdict: The evidence does not have to prove the individual is innocent, but it must be of a nature that it is likely the case would have had a different outcome if the evidence had been presented during the trial.
In federal cases, Federal Rules of Criminal Procedure Rule 33 requires motions for new trials based on new evidence to be filed within three years of the guilty verdict or finding. However, New York state cases do not have such a deadline, allowing individuals to file these motions at any time. Even without a specific deadline, it is recommended that individuals file as soon as possible after finding such evidence.
Examples of Compelling New Evidence That Might Be Considered
The criteria that must be met for new evidence to be considered set a very high standard. Individuals may wonder what specific kinds of evidence would be considered by the court. While there are no guarantees that the court will consider any new evidence, there are some that are compelling enough to be confident that they will be considered:
- New DNA Evidence: Forensic testing that was unavailable before may exonerate an individual. This can include older cases where DNA testing was unavailable at the time, finding new DNA that was never tested before, or advancements in technology that allow testing of DNA samples that were previously considered too small or degraded.
- Changed Testimony by a Co-Defendant: If a co-defendant who previously refused to testify becomes available, signs an affidavit of recantation, or their new testimony is accompanied by additional corroborating evidence (such as new forensic evidence or proof of an alibi), the court may consider it.
- New Witness Testimony: A new witness who can provide a strong alibi or undermine the prosecution’s case may qualify as compelling new evidence.
- Exculpatory Evidence Previously Hidden by the Prosecution: If the prosecution fails to disclose exculpatory evidence as the law requires and the defense discovers it, a new trial could result.
How Do You Get New Evidence Considered By the Court?
Merely finding new evidence is not enough to change anything. The individual must get the court to look at the evidence. Most people’s familiarity with the criminal justice system extends to knowing there is a criminal trial, and if convicted, the person can appeal. However, the system is much more complex than that, and discovering new evidence requires a different approach. If the individual files an appeal with the latest evidence, it will not result in a successful appeal. The appellate court will review the trial record for legal errors, but it will not review new evidence.
Instead, individuals will file a motion with the court where the original trial occurred to have new evidence considered. This is called an Article 440 motion, named for N.Y. CPL Section 440.10, which is the law that governs these motions. Once the motion is filed, the court will make a decision. They may grant a hearing to examine the evidence further or grant the motion and vacate the conviction, which restores the individual to their status before the trial and leads to a new trial unless the evidence is so compelling that the prosecution declines to proceed. The court may also deny the motion. Depending on the circumstances and the reason for denial, this denial may set the individual up to appeal the denial. With strong evidence, this could be a successful appeal. An experienced criminal defense attorney with the Law Office Of Benjamin Greenwald may be able to assist with filing an Article 440 motion or exploring any other options that may be available to you.
What Do You Do If You Have Already Filed an Appeal When the Evidence Is Discovered?
Most individuals who plan to appeal their conviction or sentence do so quickly. This is partly due to the New York Courts’ requirement to file the Notice of Appeal within thirty days of sentencing, and partly due to the individual’s desire to be released if they get a successful appeal. However, this speedy appeal process can mean someone is mid-appeal when the newly discovered evidence is found. Since the appellate court does not review new evidence, this creates a significant dilemma for the individual. Should they withdraw their appeal or allow it to proceed? While both of those could be options, there is a third option that is better suited to this unique situation.
When an appeal has been filed, but has yet to be granted or denied, and new evidence is discovered, the individual or their attorney can request a writ of coram vobis. A writ of coram vobis is a writ issued by a supervising or appellate court instructing a lower court to review its decision based on errors of fact (in this case, the error of fact is that the new evidence was not available in the original trial and could have changed the outcome). If the writ is granted, the case returns to the original court, where the judge reviews the decision and may vacate or modify the judgment if they determine the writ is valid and the evidence is compelling enough. If this happens, the individual may get a new trial, be able to pursue a new direct appeal, or have other options to correct the error. If the writ is denied, the individual may be able to appeal the denial of the writ to the next highest court.
How Newly Discovered Evidence May Lead to a Successful Appeal
New evidence will never lead to a successful appeal through the direct appeal process. This is because the direct appeal process is intended to identify errors of law or fact in the trial record, not to consider new evidence or any other information not already in the trial record. However, other options, such as filing an Article 440.10 motion instead of an appeal or petitioning for a writ of coram vobis if the evidence is discovered during a pending appeal, could create a path toward a successful appeal.
How a Criminal Defense Attorney May Benefit You
When you want to use newly discovered evidence for a successful appeal, it is vital to understand the appropriate methods. An experienced New York criminal defense attorney may be able to help you determine whether this new evidence is compelling enough to try to bring it before the court, decide which option for getting it before the court is right for your case, file the appropriate paperwork, and represent you in the appropriate court. You can book an appointment with the Law Office Of Benjamin Greenwald, where we may review your new evidence and other facts of your case, discuss your legal rights and options, and offer guidance for your next steps, by calling (845) 567-4820.
