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0 points300bps11y ago0 comments

I'm not at all surprised about post-trial motions. What surprises me is attempting to introduce "fresh evidence" (as it is called in the article) in a post-trial motion immediately after their client is convicted.

In fact, some of these arguments are waived on appeal if not made in a post-trial motion.

What you're saying is accurate but it's not the point. They are basing their new argument on "fresh evidence". To be successful, an appeal must be based on a legal argument and not on new evidence.

Source: http://www.americanbar.org/groups/public_education/resources...

The appeals courts do not usually consider new witnesses or new evidence. Appeals in either civil or criminal cases are usually based on arguments that there were errors in the trial’s procedure or errors in the judge's interpretation of the law.

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downandout11y ago

>" They are basing their new argument on "fresh evidence". To be successful, an appeal must be based on a legal argument and not on new evidence.

You are confusing an appeal with a motion for a new trial. New evidence cannot be heard by any federal appellate court. However, a motion for a new trial (which is what they filed here) is filed with the district court that heard the case, and can include new evidence as a basis for the motion.

Were this not possible, all of those people you hear about that are freed based on new DNA evidence, witnesses that admit to lying after trial, etc. would simply rot in prison. In fact, new evidence is one of the most common reasons for requesting a new trial.

300bpsOP11y ago

You are confusing an appeal with a motion for a new trial

I must have worded it poorly because you are confusing two different points that I made. The first point was:

Most attorneys find it is more effective to present evidence during a trial than after their client has been convicted.

Hopefully you don't find fault with that statement.

The second point I was making was in response to rayiner stating that arguments can be waived on appeal if not made in a post-trial motion. That is not directly applicable here because the argument in the post-trial motion is based on supposedly new evidence which is not applicable to an appeal.

Regardless, their client would have had a better chance if they made the argument in trial than in a post-trial motion.

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rayiner11y ago

This is a filing under Federal Rule of Criminal Procedure 33: https://www.law.cornell.edu/rules/frcrmp/rule_33.

I'm not sure about the exact contours of "new evidence" but you're right that if all the evidence was available before trial that'll weigh against him. But as you can see from the wording of the rule, there's enough discretion invested in the trial judge there that it's certainly worth a shot.

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