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Legal Memorandum: Approving a Motion for a New Trial

Issue: Is discovery of new evidence considered sufficient grounds for approval of a motion for a new trial?

Area of Law: Criminal Law, Litigation & Procedure
Keywords: Motion for a new trial; Newly discovered evidence
Jurisdiction: Federal, Virgin Islands
Cited Cases: None
Cited Statutes: None
Date: 10/01/2008

When the motion for a new trial is based on newly discovered evidence, the court may order a new trial if (1) the evidence has been discovered since trial; (2) the court can infer due diligence by movant from the alleged facts; (3) the new evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence is such that on a new trial it would probably produce an acquittal.  Gov’t of V.I. v. Sampson, 94 F. Supp. 2d 639, 650-51 (D.V.I. 2000); see United States v. Jasin, 280 F.3d 355 (3d Cir. 2002); United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976).  This five factor test is commonly referred to as the Iannelli  test.

Evidence must be newly discovered.  First, the Jasin court itself recognizes that in deciding whether such evidence is newly discovered, as opposed to merely newly available, “the determining factor” is “whether the defendant was aware of the substance of the testimony at time of trial.” 280 F.3d at 367. 

Second, if the evidence were considered “newly available” rather than newly discovered, that does not require a determination banning the new evidence. The Jasin court specifically eschewed a per se rejection of all newly available evidence, stating, “[t]he standard we adopt today bans newly available codefendant testimony only if the defendant was aware of the substance of the testimony at trial.”  280 F.3d at 368 n.10. 

Third, the Jasin court took pains to […]

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