Section 26.25 Affidavits and Necessity for Hearing

LibraryCriminal Practice 2012 Supp

I. (§26.25) Affidavits and Necessity for Hearing

Rule 29.11(f) permits the movant to file and serve affidavits with a motion for new trial if the motion is based on facts outside the record. Affidavits accompanying a motion for new trial should be specific and nonconclusory in nature. State v. Zweifel, 570 S.W.2d 792, 795 (Mo. App. E.D. 1978). The state may file opposing affidavits within 10 days, and the period may be extended for an additional 20 days by agreement of the parties or by the court for good cause shown. Rule 29.11(f). The court may permit the defense to file reply affidavits. Id.

Objections to a defendant’s affidavits are waived if the state fails to produce contrary affidavits or evidence within the allowed time. State v. Hurd, 520 S.W.2d 158, 164 (Mo. App. S.D. 1975). In these cases, the court may consider the defense’s affidavits, but it does not need to accept their contents as true; the credibility of the affiants’ declarations remains a question for the trial court to determine. See id.; State v. Burton, 544 S.W.2d 60, 68 (Mo. App. W.D. 1976); State v. Coleman, 460 S.W.2d 719, 724 (Mo. banc 1970).

The final sentence of Rule 29.11(f) states that “[d]epositions and oral testimony may be presented in...

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