The Champion

September/October 2003 , Page 26 

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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 favors.

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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