Volume 56
Issue 4
Spring '19

Grounded on Newly Discovered Evidence

Written By: Paul Mogin

Abstract

Part I of this article discusses the treatment of motions based on newly discovered evidence before the Federal Rules of Criminal Procedure were adopted and examines the drafting history of Rule 33. Part II shows that, until thirty years ago, the federal courts widely agreed that evidence newly obtained after trial, and not available earlier through due diligence, could be presented in a Rule 33(b)(1) motion without regard to whether it was relevant to innocence or to a violation of the defendant’s rights. Part III explains that, beginning in 1989, several circuits read IAC claims out of Rule 33(b)(1); that the Seventh Circuit in Evans, to broaden the impact of restrictions Congress imposed in 1996 on § 2255 motions, then barred assertion of constitutional or statutory claims in any Rule 33(b)(1) motion filed after the short window for filing an appeal; and that the Eighth Circuit in Rubashkin later closed off the rule for evidence that, although relevant to whether the defendant’s rights were violated, would not be admissible at a new trial. Part IV discusses the Seventh Circuit’s 2016 decision in O’Malley, which overruled Evans and permitted defendants to raise constitutional and statutory claims in Rule 33(b)(1) motions. Finally, Part V maintains that Rule 33(b)(1) should be construed to allow defendants to seek a new trial based on any evidence that, even if it does not bear on innocence, tends to demonstrate a violation of the accused’s constitutional rights, was obtained by the defense after trial, and could not reasonably have been obtained earlier through due diligence. Part V further argues that in many circumstances defendants claiming constitutional violations should not be required to show a probability of acquittal at a new trial.

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