How I Do New Trial Motions
Let’s start out with this: a motion for new trial is rarely granted, and the denial of the motion is rarely reversed on appeal.
There are a number of issues you can raise in a motion for new trial: insufficiency of the evidence, that the court made an error of law, and others. A motion arguing those must be filed within fourteen days after the jury’s verdict. But those same arguments can be made on appeal, and it’s unlikely that the judge who overruled your objection to certain evidence being admitted will now decide he was wrong in doing that.
The most common use of new trial motions is on the basis of newly-discovered evidence. What “newly-discovered” means is narrowly defined, and how significant the evidence is also presents challenges. If you find a witness who now says that you didn’t shoot the victim, and the State presented six witnesses at trial who testified they saw you do it, it’s unlikely your conviction is going to be reversed.
The first thing I look for when client asks about a motion for new trial is whether it can be framed in another way. For example, I’ve seen situations where lawyers claimed that the discovery that the prosecutor hid evidence entitles them to a new trial. I’d always prefer to make this claim in a petition for post-conviction relief, because you have a much better chance of having it granted if you present it that way.
If there is actually some newly-discovered evidence that doesn’t fit into that category, I’m going to make sure it’s going somewhere. Rather than charge you a fee for filing a motion, I’ll charge you a lesser fee for looking into it: reviewing what your new witnesses say, comparing that to the evidence at your trial. I’ll charge you more if I find something I believe will win you a new trial, but if I don’t, I’ll tell you to stop wasting your time and money.
How New Trial Motions Work
The rules let you file a motion for new trial on the basis of newly-discovered evidence, but there’s a time limit of 120 days. That time starts to run from the date of conviction, not sentencing.
If you discover the evidence beyond the 120 days, you have to show by “clear and convincing evidence” that you couldn’t have discovered it sooner. That’s only one of the hurdles. You have to file a motion asking for leave to file the motion for new trial. You have to show that if the jury had heard the new evidence, it wouldn’t have convicted you.
The motion is filed in the trial court. You may get a hearing on the motion, where you can present the testimony of your new witnesses, but the judge can also gauge the credibility of any affidavits without holding a hearing. For example, I’ve seen cases where a co-defendant who testified against the defendant at trial now signs an affidavit saying that the defendant didn’t have anything to do with the crime. In the vast majority of cases, especially where the judge is the same one who presided over the trial, he will deny the motion without a hearing. You can appeal if the trial court denies the motion, but the court of appeals will look very favorably upon the trial court’s decision.