Sometimes, after everything is said and done in a particular case, a piece of extremely relevant — yet somehow undiscovered — evidence comes to light. If the newly discovered evidence is persuasive enough, a the losing party may be able to convince the court to grant him a new trial.
In order to successfully request a new trial, the requesting party must demonstrate to the court that:
(1) the evidence was discovered after conviction,
(2) the defendant was not negligent in seeking to discover it,
(3) the evidence is material to an issue in the case, and
(4) the evidence is not merely cumulative.
See, e.g. State v. Vollbrecht, 2012 WI App 90. If the defendant can establish all four of these factors by clear and convincing evidence, the reviewing court will then consider whether “it is reasonably probable that, had the jury heard the newly discovered evidence, it would have had a reasonable doubt as to the defendant’s guilt. Id.
Importantly, a Motion to Set Aside a Judgment based on Newly Discovered Evidence under Wis. Stat. § 974.06 may be filed at any time, despite the expiration of other appellate options. A successful motion will put the defendant in the position he was in before trial. That is, while the defendant may be re-tried and acquitted, it is also possible that the defendant may be re-tried, convicted, and sentenced up to the maximum applicable penalty.
To speak with a knowledgeable attorney about newly discovered evidence in your case, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).