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Using new evidence of a constitutional violation to get a new trial
By Paul Mogin
In the past three decades, the courts and Congress have erected
significant new barriers in the path of a citizen who seeks to show he
was wrongfully convicted of a crime. They have drastically curtailed
federal habeas corpus review of state convictions. They have
restricted the similar remedy made available to federal prisoners in 28
U.S.C. §2255. And the courts have greatly expanded the range of
constitutional violations that can be found “harmless.”
One remedy, however, has remained largely intact — the motion for new
trial based on newly discovered evidence. Maybe it’s because such
motions are seldom granted. Whatever the reason, be thankful for small
In federal practice, new-evidence motions are governed by Fed. R. Crim.
P. 33(b)(1). The text of the Rule doesn’t say much: Any motion for a new
trial grounded on newly discovered evidence must be filed within 3
years after the verdict or finding of guilty. If an appeal is pending,
the court may n
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