Section 26.41 Newly Discovered Evidence
Library | Criminal Practice 2012 Supp |
g. (§26.41) Newly Discovered Evidence
Trial courts have broad discretion to grant or deny a new trial on the basis of newly discovered evidence, but the remedy is not favored. State v. Williams, 652 S.W.2d 102, 114 (Mo. banc 1983); State v. Rattler, 639 S.W.2d 277, 279 (Mo. App. E.D. 1982).
As long as the motion is filed within the 15- or 25-day time limit established by Rule 29.11(b), the movant is entitled to relief if the movant makes four showings:
1. That the new evidence came to the defendant’s knowledge after trial
2. That the defendant’s failure to discover the new evidence before trial was not owing to a lack of diligence
3. That the new evidence is so material that it would probably produce a different result in a new trial
4. That the new evidence is not merely cumulative or intended to impeach the testimony of a witness
State v. Taylor, 589 S.W.2d 302, 305 (Mo. banc 1979); State v. Stone, 869 S.W.2d 785, 786–87 (Mo. App. W.D. 1994); State v. Flemming, 855 S.W.2d 517, 519–20 (Mo. App. S.D. 1993); State v. Roe, 845 S.W.2d 601, 606 (Mo. App. E.D. 1992). Evidence that merely contradicts the testimony of a state’s witness will not suffice. See, e.g., State v. Leitner, 945 S.W.2d 565, 574 (Mo. App. S.D. 1997) (murder victim’s daughter’s statement in pre-sentence investigation report did not justify new trial, where it would only impeach daughter’s sworn trial testimony, which did not mention an incident described in the statement). Nonetheless, newly discovered evidence is sufficiently material if it is “credible and reasonably sufficient to raise a substantial doubt in the mind of a reasonable person as to the result in the event of a new trial.” Stone, 869 S.W.2d at 787 (quoting State v. Jennings, 34 S.W.2d 50, 54 (Mo. 1930)).
A motion for new trial based on newly discovered evidence must be accompanied by some proof, either within the motion or by accompanying affidavits. State v. Batek, 638 S.W.2d 809, 813 (Mo. App. E.D. 1982). The unverified allegations of defense counsel are not self-proving, and a motion will be rejected if the claims are not substantiated by the record because the defendant has the burden of showing compliance with all the prerequisites for obtaining a new trial on this ground. State v. Riley, 536 S.W.2d 501, 505 (Mo. App. E.D. 1976).
An untimely motion for new trial based on newly discovered evidence is considerably more problematic. Other than a motion for DNA testing under § 547.035, RSMo Supp. 2004, or § 547.037, RSMo...
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