Admissibility Of "New Evidence" For A New Trial

Tenth Circuit considers post-conviction motion for a new trial based on the defendant's claim to have "new" evidence of the real perpetrator, and denies relief after concluding the "newly discovered" evidence was not admissible as hearsay under the FRE, in United States v. Tolliver, _ F.3d _ (10th Cir. Sept. 17, 2013) (No. 12-5077)

New evidence offered as a justification for a new trial is screened under the rules of evidence -- would it have been admitted had it been possible to offer it earlier? This requirement is more than a hurdle to be overcome by the defendant, as some of the other recognized requirements for a retrial (e.g., showing that the failure to learn of the evidence earlier "was not caused by Defendant's own lack of diligence"). As with many other circuits, the Tenth Circuit has outlined five conditions which would warrant providing a defendant a new trial:

  • the evidence was discovered after trial,
  • the failure to learn of the evidence was not caused by Defendant’s own lack of diligence,
  • the new evidence is not merely impeaching,
  • the new evidence is material, and
  • the new evidence is of such a nature that in a new trial it would probably produce an acquittal.
Tolliver, __ F.3d at __ (citing United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997)). While none of these considerations explicitly refer to the admissibility of the new evidence, as the Tenth Circuit demonstrated in this recent case, new evidence offered as a justification for a new trial is screened under the rules of evidence.

What's New? The Cooperating Witness As One Of The Culprits

Defendant Tolliver was convicted for the arson of several buildings upon which he collected rent, after having submitted false insurance claims on the burned property. He sought a new trial, claiming to have "newly discovered evidence," which the trial court had refused to recognize could form the basis for a new trial. This "new" evidence was that one of the cooperating government witnesses had "previously told one of Defendant's fellow inmates 'that he and Mr. Hill [the alleged renter] had burned down two properties owned by the defendant ... in retaliation against [Defendant] for some reason or another.'" This claim was supported by an affidavit from his fellow inmate "in which he described his previous conversation" with the cooperating witness.

Classic Hearsay

The main objection to the defendant's claim of new evidence was that at best it "constitute[d] inadmissible hearsay that could only be used for impeachment purposes." It would therefore fail to satisfy the requirement for a newly discovered evidence claim that the new evidence not be "merely impeaching." Tolliver, __ F.3d at __ (citing United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir. 1997)).

The circuit agreed with the trial court that the "new evidence" could only be admitted for impeachment purposes; to offer it for the truth of what the prisoner claimed would make it classic hearsay. The defendant would be offering "his fellow inmate's recollection" of the witness's "previous out-of-court statement to prove the truth of the matter asserted" -- that the witness and a collaborating renter set the two charged fires," and implicitly not the defendant.

Neither Hearsay Exception Or Non-Hearsay

The Tenth Circuit rejected the defendant's contention that the evidence could come in as non-hearsay under FRE 801(d)(1)(A), as a prior inconsistent statement. The circuit noted that because the witness's "alleged prior inconsistent statement was not given under penalty of perjury," it would not qualify for admission as this non-hearsay rule. Although it was apparently not argued by the defendant, the circuit also noted that the statement could not "satisfy any of the exceptions" to the hearsay rule, such as FRE 804(b)(3) statement against interest. That hearsay exception would not apply because there was no showing made that the witness "would be unavailable to satisfy," nor that there were any "corroborating circumstances."

The circuit admitted that, although the point had not been put forward by the defendant, there might be a basis for a new trial, but it was only a remote, "theoretical possibility." The circuit noted that the:

alleged confession occurred years ago while the men were using methamphetamine together. The passage of time and the inmate's altered state raise questions about his memory and perception. The inmate's convicted felon status is likely to surface due to the contexts in which he met Mr. Sheppard and Mr. Tolliver, and that could undermine his credibility with the jury. Moreover, the inmate's story is difficult to square with the evidence. It offers a weak alternative theory about one of two fires Mr. Tolliver was convicted of setting. But Mr. Tolliver admittedly tried to profit from both fires by submitting fraudulent insurance claims with falsified leases. Given these circumstances, this new evidence is not likely to result in acquittal.
Tolliver, __ F.3d at __. The inadmissibility of the "new discovered evidence" was dispositive. As the circuit concluded, "Because Mr. Sheppard’s alleged prior inconsistent statement is inadmissible hearsay, the government is correct that it at most constitutes impeachment evidence. Such evidence cannot serve as the basis for a new trial." Tolliver, __ F.3d at __.


There can be a variety of bases to seek a new trial, including juror misconduct or prosecutorial misconduct. See, e.g., Juror Google Research Results In Granting Motion For A New Trial. When the basis for the new trial is newly discovered evidence, the Tenth Circuit case highlights the need for the new evidence to be screened for its admissibility under the rules of evidence.


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