Grounded on Newly Discovered Evidence

Abstract

Though amended several times, Federal Rule of Criminal Procedure 33 has always provided a period of years to move for a new trial on the basis of “newly discovered evidence,” while requiring that other new trial motions be filed within days after verdict. The circuits disagree, however, as to what kinds of claims can be raised in a “newly discovered evidence” motion, and, assuming that such a motion is not limited to evidence going to the merits of the charges, as to the standard that must be met to obtain relief when the evidence concerns an asserted violation of the defendant’s rights.

For example, although the Supreme Court has recognized that the effective assistance of counsel is a crucial safeguard against wrongful conviction, several circuits hold that ineffective-assistance claims cannot be raised in “newly discovered evidence” motions. Another circuit, the Eighth, interprets Rule 33’s “newly discovered evidence” provision to permit no relief on the basis of evidence purportedly demonstrating that the trial judge should have recused herself; it rests that interpretation on the general requirement, applicable where the new evidence concerns the merits of the charges, that the evidence show a likelihood of acquittal at a new trial. For many years, the Seventh Circuit adhered to a uniquely narrow view of the claims cognizable in a “newly discovered evidence” motion. It recently reversed its position on that issue, but seemed to suggest that to obtain relief a defendant generally must show a probability of acquittal at a retrial.

This article maintains that Rule 33 should be construed to permit a defendant to move for a new trial, on the basis of evidence purportedly demonstrating a violation of his or her constitutional rights, if the evidence is newly obtained and could not have been obtained earlier through due diligence, and to obtain relief without having to show a likelihood of acquittal at a new trial. The article argues that a broad approach to cognizability is supported by the text and original understanding of the Rule, the fundamental nature of nearly all constitutional rights that might be the basis for a new trial motion resting on newly obtained evidence, and by the limitations on pretrial discovery in criminal cases. The article further argues that the finality and other considerations relied on in decisions refusing to entertain ineffective-assistance claims do not justify forcing a defendant to litigate such claims in a motion under 28 U.S.C. § 2255. A motion under that statute is not heard until after sentencing and appeal; it may have to be litigated by an indigent defendant without counsel; and its denial is not appealable as of right. As to the standard a defendant should have to meet to obtain a new trial, the article notes that requiring a showing of a likelihood of acquittal at a retrial conflicts with the Supreme Court’s decisions involving prosecutorial suppression of exculpatory evidence, which do not demand such a showing. Requiring a showing of a likelihood of acquittal is also unsound in principle, as newly unearthed evidence may show a trial was unfair, without indicating what the result might be without the unfairness.

Keywords: Newly discovered evidence, new trial, criminal procedure