Admissibility Requirement For New Evidence In Support Of A New Trial

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When filing a motion for a new trial based on the discovery of new evidence, must the new evidence be admissible? Tenth Circuit confirms that the failure to identify newly discovered evidence that is admissible does not warrant a new trial; other cases from other courts are also noted, in United States v. Hill, _ F.3d _ (10th Cir. Dec. 10, 2013) (No. 12-5176)

After a jury verdict, a motion for a new trial may be filed for a variety of reasons, such as instructional error or new evidence that was not discovered until after the trial. In the latter situation when new evidence is found, what requirements do the courts impose to ensure that the new evidence is admissible? The Tenth Circuit recently considered this issue and cited to other cases for the proposition that the evidence must be admissible in order to assess the motion for a new trial.

Post-Trial Motion For A New Trial

Defendant Hill was convicted by a jury for committing bank robbery. The government’s theory during the trial was that the defendant committed the robbery with one other person. After his conviction, the defendant filed a motion for a new trial based on newly discovered evidence. The defendant claimed that subsequent grand jury testimony of an agent confirmed that that the government’s theory in how the bank robbery had occurred had changed. Instead, the agent noted that the “defendant and his two brothers, rather than defendant and one brother, had committed bank robbery” as the government believed during the trial. Based on an analysis of cell phone records, the agent explained: “Initially, we believed that Stanley and [Defendant] were the robbers. . . . We were wrong. We think that Stanley was the getaway driver and that [Defendant] and DeJuan were the robbers.” However, the defendant’s role in the robbery had not changed. Based on the agent’s testimony before the grand jury, the defendant filed a motion for a new trial based on newly discovered evidence. The trial court denied the motion and the defendant appealed.

Circuit Analysis: Whether Any “New” Evidence Was Admissible

The Tenth Circuit affirmed the denial of the motion for a new trial. As the circuit noted, “Implicit in a claim of newly discovered evidence is that there is new evidence—that is, material that is admissible at trial.” Hill, _ F.3d at _.

To warrant a motion for a new trial based on newly discovered evidence, the defendant must show: "(1) the evidence was discovered after trial; (2) the failure to learn of the evidence was not caused by lack of diligence; (3) the new evidence is not merely impeaching or cumulative; (4) the new evidence is material to the principal issues involved; and (5) the new evidence would probably produce an acquittal if a new trial were granted." Hill, _ F.3d at _ (quoting United States v. Orr, 692 F.3d 1079, 1099 (10th Cir. 2012)).

The circuit explained that some of what the defendant cited as "new evidence" was not new at all. First, it was “not the cell-phone data or” the agent’s “analysis of that data,” since the defendant explicitly declined to rely on this evidence. Second, the new evidence was not the fact that “DeJuan was the driver of the black Nissan” since trial evidence was offered on this point. Third, the new evidence did not concern whether “one of the robbers (specifically, DeJuan) had left the house after the money had been deposited there” since no new evidence could confirm his location. Hill, _ F.3d at _.

Finally, the circuit considered the defense claim that the government’s theory of the robbery had changed after the trial:

There remains only the possibility that the “new evidence” was that Agent Jones had a new theory of the case—in particular, that the prior two-robbers theory was incorrect.… [The claim] “that Agent Jones’s grand-jury testimony is newly discovered evidence … fails because the testimony (at least as Defendant would use it) is not admissible evidence. It is opinion testimony by Agent Jones. He did not observe any of the brothers participate in the bank robbery or see DeJuan leave the house. Of course, opinion testimony may be admissible in certain circumstances. See Fed. R. Evid. 702. And here perhaps Agent Jones’s conclusions would be proper expert testimony, because his knowledge and experience enabled him to analyze the cell-phone data and infer how the crime was committed. But Defendant insists that use of the cell-phone data is improper in resolving his motion, thereby removing from consideration any basis for viewing Agent Jones’s testimony as admissible expert-opinion evidence. Defendant cannot have it both ways. He cannot argue that Jones’s opinion (and only one component of the opinion at that) is newly discovered evidence but that the evidentiary predicate for its admissibility (the cell-phone data and Jones’s expertise in analyzing it) cannot be considered.

Hill, _ F.3d at _ (citations omitted).

In explaining its conclusion, the circuit provided an analogy:

Say a pathologist concluded from performing a posttrial autopsy that a wound to the decedent’s abdomen, while potentially life-threatening, was not the cause of death because another wound sustained at the same time ended the decedent’s life first. No court would grant a motion for new trial in which the defendant argued that the pathologist’s testimony that the abdominal wound was not the cause of death was new evidence, but that the remainder of the pathologist’s observations and analysis could not be considered.

Hill, _ F.3d at _.

Supporting Case Law

The circuit cited to the following cases in support of the proposition that any new evidence would have to be admissible to justify a new trial:

  • United States v. Parker, 903 F.2d 91, 102-03 (2d Cir. 1990) (requiring that new evidence would probably produce an acquittal “presupposes, of course, that the proffered new ‘evidence’ would be admissible at the new trial.”)
  • United States v. MacDonald, 779 F.2d 962, 964 (4th Cir. 1985) (“To obtain a new trial on the basis of after discovered evidence, that evidence must be admissible in a new trial”)
  • United States v. Kamel, 965 F.2d 484, 491 (7th Cir. 1992) (agreeing with Parker)
  • United States v. Dogskin, 265 F.3d 682, 686 (8th Cir. 2001) (because new testimony was inadmissible, a new trial was not warranted)
  • Wolcher v. United States, 233 F.2d 748, 749 (9th Cir. 1956) (“One important reason such alleged newly discovered evidence is insufficient . . . is that such evidence would be inadmissible . . . .”)
  • Cf. United States v. Tolliver, 730 F.3d 1216, 1228 (10th Cir. 2013) (inadmissible hearsay could not require new trial because it “at most constitutes impeachment evidence”)
  • United States v. Redcorn, 528 F.3d 727, 744–45 (10th Cir. 2008) (proposed newly discovered evidence was either “inadmissible and incorrect” or unhelpful to the defendant’s argument).

No Due Process Claim

The circuit highlighted an open issue whether due process may be denied by a change in the government’s theory in the case. Hill, _ F.3d at _ (citing Bradshaw v. Stumpf, 545 U.S. 175, 186-88 (2005) (noting due process issue without deciding it)). The circuit did not consider this possible claim since the defendant was “not challenging the propriety of the government’s changing its theory; he is claiming, in essence, that the new theory is new evidence.” Hill, _ F.3d at _.

Conclusion

When the basis for a new trial motion is newly discovered evidence, Hill clarifies that the evidence must be admissible. Because the grand jury testimony was not admissible, the circuit affirmed the trial court’s denial of a motion for a new trial.

For another recent case, considering the same issue, see: United States v. Tolliver, 730 F.3d 1216 (10th Cir. Sept. 17, 2013) (No. 12-5077); see also Admissibility Of "New Evidence" For A New Trial (discussing Tolliver).

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