§ 21.3 Motion for New Trial

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 21.3 MOTION FOR NEW TRIAL

§ 21.3-1 Nature of Motion for New Trial

A new trial is the "re-examination of an issue of fact in the same court after judgment." ORCP 64 A. The provisions of ORCP 64 A, ORCP 64 B, and ORCP 64 D to 64 G apply to and regulate new trials in criminal cases. ORS 136.535(1).

In a criminal case, only the defendant may move to set aside a judgment and obtain a new trial, and only if there has been a trial by jury. ORS 136.535; ORCP 64 B.

Alternatively, the trial court may grant a new trial on its own initiative. ORCP 64 G. However, if an appeal is taken from the order, the order granting the new trial will be affirmed "only on grounds set forth in the order or because of reversible error affirmatively appearing in the record." ORS 19.430. See also ORCP 64 G; ORS 136.535. Although ORCP 64 G authorizes the trial court to grant a new trial on its own initiative, it cannot do so in the absence of a jury trial; ORCP 64 C, which allows new trials in cases tried without a jury, does not apply in criminal cases. ORS 136.535; State v. Stewart, 239 Or App 217, 221, 244 P3d 816 (2010).

PRACTICE TIP

Although not required, it may be advisable to inform a defendant that waiving the right to a jury trial also waives the right to file a motion for a new trial. In Stewart, 239 Or App at 223, the court of appeals held that the defendant voluntarily and knowingly waived his right to a jury trial, even though he had not been informed that, by waiving a jury, he also waived his right to move for a new trial.

§ 21.3-2 Procedure and Time Limits of Motion for New Trial

The procedure and time limits of ORCP 64 F control a motion for a new trial in a criminal case. ORS 136.535. The time periods for filing a motion for a new trial are the same in both criminal and civil cases. ORS 136.535(2); ORCP 64 F. A motion for a new trial, along with any supporting affidavits or declarations, must be filed "not later than 10 days after the entry of the judgment sought to be set aside." ORCP 64 F(1).

NOTE

Although a motion for a new trial is untimely if it is filed after the expiration of the 10-day period following entry of the judgment, it is not untimely when filed before entry of judgment. Association of Unit Owners of Timbercrest Condominiums v. Warren, 242 Or App 425, 428, 256 P3d 146, aff'd, 352 Or 583, 288 P3d 958 (2011); State v. Starr, 210 Or App 409, 412, 150 P3d 1072 (2007) (finding no reason to treat a motion for a new trial differently in a criminal case from that in a civil case), superseded by statute on other grounds as stated in State v. Meiser, 290 Or App 617, 619-20, 416 P3d 335 (2018).

NOTE

An exception to the time limits of ORCP 64 F exists for motions for new trials based on newly discovered evidence when the evidence is exculpatory evidence resulting from DNA testing ordered under ORS 138.692. ORS 138.696(2). Such a motion is timely if filed "at any time during the 60-day period that begins on the date the person receives the test results." ORS 138.696(2).

The state must respond with any counter-affidavits or counter-declarations within 10 days after the defendant filed the motion for a new trial. ORCP 64 F(1).

If the court does not hear and determine the motion within 55 days after entry of judgment, the motion is deemed denied. ORCP 64 F(1); Ryerse v. Haddock, 337 Or 273, 281, 95 P3d 1120 (2004).

An order granting a motion for a new trial that is not signed in open court becomes effective when it is entered in the register, not when it is filed. McCollum v. Kmart Corp., 347 Or 707, 712, 226 P3d 703 (2010); Ryerse, 337 Or at 281.

For the grant of a motion for a new trial to be effective, it must be made in a written order; an oral ruling or a letter opinion will not suffice. McCollum, 347 Or at 713.

NOTE

The court may grant a new trial on its own motion within 30 days after judgment is entered. ORCP 64 G. However, the court's order must be written and must state "fully the grounds upon which the order was made." ORCP 64 G; State ex rel. Schrunk v. Johnson, 97 Or App 420, 423, 776 P2d 863, rev den, 308 Or 382 (1989). The order must be signed and entered within 30 days after the original judgment is entered. ORCP 64 G; Schrunk, 97 Or App at 423, 424 n 3.

In a motion for a new trial, "the grounds thereof shall be plainly specified"; the court may not consider a ground for a new trial that is not so specified. ORCP 64 D. See § 21.3-3 to § 21.3-3(f) (grounds for a motion for a new trial). Furthermore, if the motion is made for a cause mentioned in ORCP 64 B(1) to (4), it must be supported by affidavit or declaration. ORCP 64 D. If the motion is based on a claim of newly discovered evidence (ORCP 64 B(4)), the defendant must either produce affidavits or declarations from the witnesses showing what their testimony will be or show a good reason for not producing them. ORCP 64 D.

§ 21.3-3 Grounds for New Trial

The grounds for a motion for a new trial are set forth in ORCP 64 B(1) to (6). See § 21.3-3(a) to § 21.3-3(f) (grounds). The grounds are the same for civil cases and criminal cases. See ORS 136.535. A court cannot grant a new trial on grounds other than those specified in ORCP 64 B. Roe v. Doe, 161 Or App 477, 485, 984 P2d 344 (1999), rev den, 329 Or 651 (2000). Furthermore, a court may not set aside the former judgment and grant a new trial unless the specified cause materially affected the party's substantial rights. ORCP 64 B. See also Gross v. Hackers, 168 Or App 529, 534-35, 4 P3d 1281 (2000), rev den, 332 Or 239 (2001) (upholding the trial court's denial of a motion for a new trial when the alleged grounds did not substantially prejudice the party's case).

An affidavit or declaration is required in support of a motion based on a ground mentioned in ORCP 64 B(1) to (4) (see § 21.3-3(a)) to § 21.3-3(d)). ORCP 64 D.

§ 21.3-3(a) Irregularity in the Proceedings or Abuse of Discretion

A new trial may be granted when there has been "[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having fair trial." ORCP 64 B(1). An irregularity in the proceedings occurs when there is a "deviation from an established rule or a usual practice or method." Silverman-Doney v. Gargan, 256 Or App 263, 270, 303 P3d 333 (2013). "[A] trial court's arguably questionable ruling does not render proceedings that are proper procedurally 'irregular' for purposes of ORCP 64 B." Silverman-Doney, 256 Or App at 270.

Irregularities that come to light before the case is submitted to the jury must be brought to the trial court's attention at that time for such irregularities to be reviewable by way of a motion for a new trial. State v. Longoria, 17 Or App 1, 9, 520 P2d 912 (1974). However, the court's power to allow a new trial on its own initiative "is not limited to errors properly excepted to." Dutra v. Tree Line Transportation, Inc., 112 Or App 330, 333, 831 P2d 691 (1992).

Irregularities that may be grounds for a new trial include the following:

(1) remarks by the court that prejudice the defendant in the minds of the jury (State v. Clements, 15 Or 237, 244-45, 14 P 410 (1887));

(2) improper communications from the bailiff to a juror when the communications prejudice the juror (see State v. Rathbun, 36 Or App 223, 226, 584 P2d 332 (1978), rev den, 285 Or 73 (1979));

(3) improper procedure in the instruction of the jury (Huntley v. Reed, 276 Or 591, 594-95, 556 P2d 122 (1976) (holding that a trial court's response to a jury question during deliberations outside the presence of the parties was an irregularity in the proceedings));

(4) an error in the jury verdict form that results in an ambiguous verdict (State v. Byers, 95 Or App 139, 142-43, 768 P2d 414 (1989));

(5) a court's use of an anonymous jury without making findings in support of anonymity and failing to take steps to mitigate any prejudice to the defendant (State v....