Saturday, August 29, 2015

Difference between "newly available" and "newly discovered" evidence.

 
 

     A new trial will not be awarded to the convicted chairman of Cendant Corp. Fed. R. Crim. P. 33 generally limits the timing for filing a motion for a new trial to 14 days after the finding of guilty. A motion for a new trial based on "newly discovered evidence" may be filed up to three years later.

    The defendant argued that since the statute of limitations on offenses that had kept a potential defense witness from testifying had run, that witness should count as "newly discovered" evidence. Granting this would have allowed for a new trial including the testimony of that witness.

   The court rejected the defendant's argument saying that the potential witness was only "newly available" evidence. The court did indicate that, though the interpretation of Rule 33 here was narrow, it is the same as followed by the majority of court circuits that have addressed the issue.

   In United States v. Owen, 500 F.3d 83 (2d Cir. 2007) the court, facing a situation of 5th Amendment protections of co-defendants not being an issue anymore stated, "Rule 33 does not authorize disctrict courts to grant new trials on the basis of such evidence since it is not newly discovered, but merely newly available."

  The Owen court deterimined that the risks were too high and it was "rife for manipulation" and "raises the risk of encouraging perjury." Even though the witness here was not a co-defendant, the court ruled that       "[t]he same risks are present here."

   The overall ruling is that "[w]here, as here, a defendant is aware that a co-conspiritor could provide exculpatory testimony, but the co-conspiritor refuses to do so on the basis of his Fifth Amendment privilege, that testimony - made available post-conviction by the expiration of the statute of limitations as to that co-conspirator's alleged offenses - is not newly discovered after trial and, therefore, does not constitute newly discovered evidence within the meaning of Rule 33."

http://www2.bloomberglaw.com/public/desktop/document/UNITED_STATES_OF_AMERICA_Appellee_v_WALTER_A_FORBES_DefendantAppe

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