July 22, 2019

Tenth Circuit: Denial of Motion for New Trial Based on Inadmissible New Evidence Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Hill on Tuesday, December 10, 2013.

Defendant Vernon Hill was charged with bank robbery, along with his brother Stanley. Hill was convicted; Stanley was not as the jury could not agree as to him. Stanley was later retried and convicted. Several months after Defendant’s conviction, the government, having obtained cell phone data and other additional evidence, charged Defendant and his brother DeJuan with conspiring to commit various robberies, including the robbery of the bank. In presenting the new case to the grand jury, FBI agent Charles Jones testified that the government’s understanding of the bank robbery had changed: Stanley had not been one of the two masked robbers in the bank but had driven the getaway car. Dejuan had been the other robber in the bank with Defendant.

The Defendant appealed the denial of his motion for a new trial based on newly discovered evidence. Motions based on newly discovered evidence are disfavored and denials are reviewed for abuse of discretion. The Tenth Circuit applied the five-part test in United States v. Orr in deciding if Defendant had met his burden to establish:

(1) the evidence was discovered after trial; (2) the failure to learn of the evidence was not caused by lack of diligence; (3) the new evidence is not merely impeaching or cumulative; (4) the new evidence is material to the principal issues involved; and (5) the new evidence would probably produce an acquittal if a new trial were granted.

Any new evidence must be admissible at trial. The court held that the only possible new evidence, Agent Jones’s grand jury testimony, was opinion testimony and so not admissible. It therefore affirmed the district court.

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