Even after they've been all the way through trial, defendants can seek new trials. But judges don't grant them very often.
By Alexis Kelly
After a criminal trial ends in a conviction, the defendant can file a motion for a new trial. Courts grant these—though rarely—to correct significant errors that happened during trial or if substantial new evidence of innocence comes to light. A court may also grant a motion for a new trial if there has been a “miscarriage of justice.” In short, new trial grants generally require that some kind of error prevented the defendant from receiving a fair trial.
Fixing a Legal Error
Legal errors during trial comprise one basis for granting a new trial motion. An example is a judge having wrongly excluded evidence that would have made a difference to the outcome of the trial. An erroneous exclusion of evidence might occur if a judge ruled that certain testimony should be excluded because of the hearsay rule, but the ruling was erroneous because an exception to the rule applied.
Since a motion for a new trial goes to the same judge who presided over the initial trial, it’s unusual for that judge to find significant legal error. However, a judge who realizes that a particular ruling was in error might grant a new trial to avoid the case being overturned on appeal. That said, appellate courts tend to give trial court judges considerable leeway in their rulings. (For more information on appeals, see Appealing a Conviction.)
Discovery of New Evidence
Courts may also grant new trial motions when certain kinds of new evidence have been discovered after conviction. But small, slightly helpful facts aren’t enough. The new evidence generally must:
- have been unknown to the defense during trial
- not have been reasonably possible to discover before or during trial, and
- be capable of causing a jury to reach a different verdict.
A judge or appellate court might grant a new trial based on newly discovered evidence if, for example, the defense had been looking for and finally locates the only witness who can corroborate the defendant’s alibi.
Correcting an Injustice
A judge may also order a new trial if doing so could fix an injustice associated with the first trial. For example, in a 2013 federal case, a judge granted a motion for a new trial for two Mexican restaurant owners who had been convicted of harboring undocumented aliens for profit. After their conviction, the defense learned that one of the jurors made racist comments during the trial, calling the defendants “guilty wetbacks.” In granting the new trial, the judge emphasized that defendants are entitled to 12 impartial jurors who decide cases based on the facts, not discriminatory beliefs. (United States v. Fuentes, No. 2:12-CR-50-DBH (D. Me 2013).)
Courts have also granted new trials to correct injustice when the defendant’s constitutional rights (like the right to remain silent or confront witnesses) were violated and when the defendant didn’t testify at trial due to fear of a codefendant.
How It Works
Defendants typically make motions for new trials after guilty verdicts. In some jurisdictions, the trial judge can order a new trial without a defendant asking. If the judge denies a motion for a new trial, the defendant can file an appeal asking a higher court to overrule the trial judge.
The prosecution cannot make a motion for a new trial because the principle of double jeopardy applies upon an acquittal. But in some instances the prosecution can appeal a trial judge’s grant of a new trial, and it can usually appeal a new trial order by an appellate court.
If a judge grants a motion for a new trial, the case goes back almost to square one: The prosecution and defense can try the case again in front of a different jury.
For information on a similar post-trial remedy, see Can a judge acquit a defendant at a jury trial?