Following the announcement of the verdict, the defendant has the option to submit post-trial motions on a variety of topics. These are ultimately aimed at some deficiency in the verdict. These motions are exclusively available for a defendant. The state does not get to fail to carry its burden and then try again—a process referred to as double jeopardy. In some instances, the state is allowed to appeal various rulings of the trial court, but those are handled via different motions and mechanisms. Post-trial motions are especially reserved for a defendant that did not receive a fair verdict.

Motion For A New Trial

Section 22-3501 allows a defendant to motion for a new trial under some circumstances. The court will grant the motion when it is in “the interest of justice.” This vague standard showcases the large amount of discretion a court has in deciding whether or not to grant the motion. The motion can be made directly after the occurrence takes place or after the verdict has been rendered. Generally, these motions must be made quickly following trial, though that time limit may be extended in certain circumstances. The four most common grounds upon which a motion for a new trial is granted are discussed below.

  • Juror Misconduct:  Juror misconduct can occur when a juror “goes beyond the evidence.” This can be in the form of investigating the crime scene on his own or researching the case online. At first, this may seem like activity an engaged juror should be doing—it certainly is not. Trials are controlled by rules of evidence that have evolved over hundreds of years. These rules exist today for good reasons: they keep out dangerously unreliable evidence. It’s easy to imagine a juror doing an online search of a case and finding completely false information. The rules of evidence and the rigors of trial would flush out the weaknesses in such evidence; the computer screen cannot do that. Another common example of this type of misconduct is when an outside source communicates with the jury. Again, the danger is that this information is completely unchecked. These types of misconduct can form the basis for retrying the case with a new jury.

  • Prosecutorial Misconduct:  Prosecutorial misconduct is likely the most common reason a new trial is granted. For better or worse, district attorneys are under considerable pressure to get convictions. This can and does lead to some district attorneys incorrectly prioritizing a wrongful conviction over no conviction. The most common area in which a district attorney may commit serious misconduct are closing arguments. In State v. Magdaleno, the district attorney attacked the credibility of the defense attorney by accusing her of lying to the jury. This clearly went beyond what the jury was allowed to consider; the credibility of each witness was at issue and the jury could be asked to believe one account over the other, but attempting to paint the attorney as lying was clearly aimed at inflaming the jury into convicting based on passion. Another common example of occurs when the district attorney calls attention to the fact that a defendant does not testify. The state is not allowed to encourage the jury to make an adverse inference from the defendant exercising the Fifth Amendment. Unsavory attorneys may attempt to subtlety hint at this fact, trying to get the jury to decide the case based not upon the evidence they have heard, but they evidence they have not heard. Experienced defense counsel is always prepared for this “indirect” adverse inference and courts are willing to grant a new trial when such statements are made.

  • Highly Prejudicial Errors:   No trial is conducted perfectly: errors will happen. However, when an error is so dramatic that it costs the defendant a fair trial in some way, the court can order a new trial in response. In State v. Phillips, the state was ordered to produce taped witness interviews when the witnesses testified to very different facts on the stand. The district attorney claimed to not have the tapes at trial and the judge decided that the varying testimony given did not have to be struck. The Kansas Supreme Court disagreed, and remanded the case for a new trial. The lack of these tapes was so damning to the defendant’s case that the trial was rendered unfair. This is a high standard. Thus, most instances of error, particularly when dealing with ruling based on evidence, will not justify a new trial.

  • Newly Discovered Evidence:   A final reason for granting a new trial is the discovery of new evidence by the defendant. This reason extends the period of time in which a defendant can make a motion for new trial, allowing the motion anytime within two years of final judgment. In State v. Smith, the court set out three things that must be proven to be granted a new trial on these grounds. First, the evidence could not have been found by reasonable investigation on the defendant’s part. Second, the new evidence must be show to have a “reasonable probability” of changing the result of the trial. Though this second fact may sound manageable, it is actually fairly difficult to establish. For example, the defendant in Smith failed to establish this fact do to the other evidence which supported the state’s version of events. To put it another way, the court has stated that discovering the new evidence does not automatically entitle the defendant to a jury to weigh that evidence. Instead, the court must be convinced that the evidence could overcome all the other evidence presented to change the result. Thus, newly discovered evidence does not commonly result in new trials. 

  • Arrest of Judgment: Another post-trial motion is the motion for arrest of judgment. This motion seeks to prevent the judgment from being entered by the court following the jury’s verdict. The grounds of this request are very narrow: either the charging documents fail to state a recognized crime or the court lacked jurisdiction over the crime. This motion is a rare bird indeed, as these are among the first things experienced defense counsel will check upon a defendant being charged. Adding to the rarity is the prohibition outlined in State v. Sims: the evidence presented at trial is not considered in deciding the motion. Instead, only the charging documents—the first documents filed in the case—can create the grounds necessary to succeed on this motion.

Filing Post Trial Motions is a task best left to an experienced criminal defense team. You generally only have one shot at getting a new trial if there was an error the expertise in crafting the motions are vital to success.

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