§ 4.28.2 Newly Discovered Evidence.

• Jurisdiction: Arizona

§ 4.28.2 Newly Discovered Evidence. To obtain relief on a claim of newly-discovered evidence under Rule 32.1(e), the defendant must establish the following: (1) “[t]he newly discovered material facts were discovered after the trial”; (2) “[t]he defendant exercised due diligence in securing the newly discovered material facts”; and (3) “[t]he newly discovered material facts are not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which was of critical significance at trial such that the evidence probably would have changed the verdict or sentence.” Rule 32.1(e). In State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989), the court stated that there are actually five required elements of any claim based on newly discovered evidence, comprised of the first three listed in the rule, and two others--that the evidence is relevant to the case, and that the evidence likely would have altered the verdict, finding or sentence if known at the time of trial. Each of these five factors is discussed below:

1. Evidence Discovered After Trial. For PCR to be granted on the basis of newly discovered evidence, the evidence must have been in existence at the time of trial, but not discovered until after trial. State v. Sanchez, 200 Ariz. 163, 166-67, ¶ 11, 24 P.3d 610, 613-14 (App. 2001). A defendant may be entitled to relief if the evidence is newly discovered, and will not be entitled to relief if it is not. State v. Mata, 185 Ariz. 319, 333-34, 916 P.2d 1035, 1049-50 (1996) (because evidence about defendant’s home life was known to defendant all along, evidence was not newly discovered); State v. Fisher, 176 Ariz. 69, 75-76, 859 P.2d 179, 185-86 (1993) (because defendant’s wife had never told anyone her husband was staggering drunk at time of...