Motion for a New Trial. Within seven days of a verdict of guilty by the jury or, if a non-jury trial, by the court, a defendant may file a motion requesting a new trial.1 Such a motion may be based upon any action occurring during the trial that the defendant claims was prejudicial to a fair trial,2 provided that the defendant objected to the same conduct during the trial.3 The filing of the motion will, not toll the time for taking an appeal. If the motion has not been resolved before an appeal has been taken, the taking of an appeal will divest the trial court of jurisdiction, and the appropriate procedure is to file a motion in the appellate court to remand for the purpose of allowing the motion to be decided.4

Where a defendant seeks  a new trial on the ground of prosecutorial misconduct or other claim of prejudice, the court must evaluate (i) the closeness of the case, (ii) the significance of the issue affected by the alleged error, and (iii) the steps taken to mitigate the effects of the error.5 The court may also consider the government’s role in creating the alleged prejudice.6

When a defendant seeks a new trial based on a claim that the prosecutor made an improper reference to the defendant’s right to remain silent, the court should consider (i) whether the comment was negative and uninvited, (ii) whether the comment created an inference of guilt, (iii) whether the jury naturally and necessarily took the comment as an inference of guilt, and (iv) whether the impact on the trial’s fairness was substantial or attenuated.7

Where a defendant seeks a new trial on the ground that the verdict was against the weight of the evidence, the court must determine, whether the evidence, be it direct or circumstantial, viewed in its entirety and including all reasonable inferences, was sufficient to enable a jury to determine that the defendant’s guilt had been established beyond a reasonable doubt.8

A defendant may also seek a new trial on the ground of newly discovered evidence. In such circumstances, the defendant must demonstrate that (i) the new evidence is of a quality and quantity sufficient to change the result if a new trial is granted; (ii) the evidence was discovered after trial and could not have been discovered earlier by the exercise of due diligence; and (iii) the proposed evidence is not merely cumulative or impeaching of other evidence.9 Newly available evidence, i.e., evidence created after the fact, may qualify as newly discovered evidence it the necessary elements are otherwise met.10 For example, information about contacts between jurors and spectators may constitute newly discovered evidence.11 Further, the current willingness of a witness to testify who previously asserted his or her Fifth Amendment right to decline to answer potentially incriminating questions qualifies as newly-discovered evidence. The testimony is now newly available.12 To avoid encouraging unreliable witness testimony, improper trial strategy or inefficient use of judicial resources, the courts set strict standards for demonstrating newly discovered evidence adequate to justify a new trial.13

Motions for a new trial based upon the recantation of a witness are generally viewed with suspicion. To obtain a new trial on this ground, the trial court must be reasonably well satisfied that (i) the testimony given by a material witness was false; (ii) without such testimony the jury might have reached a different conclusion; and (iii) the movant was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after trial.14  The same standard applies when there is a claim of perjured testimony.14.1

Trial testimony is presumed to be truthful and recanting testimony is presumed not to be truthful.  The defendant bears the burden of showing by clear and convincing evidence that perjured testimony was offered against him or her at trial.  In determining the truth or falsity of the recantation, courts may consider, among other factors, (i) the appearance that the recantation resulted from pressure from other individuals, including family members. (ii) whether the recantation appears to have been produced by remorse, (iii) whether other evidence supports the conviction, and (iv) whether the evidence supports the original trial testimony and whether the recantation lacks corroboration.14.2

Courts may decide motions for a new trial based on recanted testimony without holding an evidentiary hearing.14.3

When newly discovered evidence is in the form of new witnesses, the court should consider the credibility of such new witnesses. A motion for a new trial may be denied if the credibility of a newly-discovered witness is sufficiently impeached.15

A motion for a new trial based upon newly discovered evidence may be made up to two years after final judgment. A motion for a new trial based on any other ground must be made within seven days after the verdict or finding of guilty or within such further time as the court may fix during the seven-day period.16  The time limits for filing a motion for a new criminal trial are jurisdictional and mandatory16.1

An unauthorized visit by a juror to the scene of the crime during the course of the trial may result in prejudice warranting a new trial.17

Upon a motion for a new trial, the court has the power to weigh the evidence and pass on its credibility.17.1 A court may, in its discretion, take live testimony or decide the matter on affidavits.18 The taking of live testimony is generally limited to unique situations involving allegations of jury tampering, prosecutorial misconduct or the confession of a third party or the joinder by the State in a request by defense counsel for an evidentiary hearing.19 The grant or denial of a motion for a new trial is within the discretion of the trial judge.20

Motion for Reargument. The rules of criminal procedure do not provide expressly for motions for reargument. Courts, however, may consider such motions through rules of criminal procedure which provide that, in cases not provided for by rule or administrative order, courts shall regulate their practice in accordance with applicable rules of civil procedure or any lawful manner not inconsistent with the rules of criminal procedure or the rules of the Supreme Court.21 The procedural limitations imposed on motions for reargument in civil cases apply equally to criminal cases,22 including the requirement that any motion for reargument be filed within seven days after the entry of judgment.22.1

On a motion for reargument, the only issue is whether the court overlooked some fact that would have changed the outcome of the underlying decision or made an error of law. Generally, reargument will be denied unless the underlying decision involved an abuse of discretion.22.2

1. Super. Ct. Cr. R. 33; Comm. Pls. Ct. Cr. R. 33; Fam. Ct. Cr. R. 33; J.P. Ct. Cr.R. 22. See also Ald. & M. Ct. R. 21.

2. See State v. Scope, 86 A.2d 154, 158 (Del. Super. 1952).

3. See, e.g., State v. Lynch, 274 A.2d 443, 445 (Del. Super. 1971).

4. Elier v. State, 531 A.2d 948, 950 (Del. 1987).

5. See State v. Zimmerman, Cr. A. Nos. IN-91-07-0998-1002, slip op. at 4, Herlihy, J. (Del. Super. Jan. 29, 1992), aff’d in part and rev’d in part on other grounds, remanded, 628 A.2d 62 (Del. 1993); State v. Johnson, Cr. A. Nos. K91-06-00691, slip op. at 4, Steele, J. (Del. Super. Dec. 18, 1991); State v. Chisum, Cr. A. Nos. 1K91-04-0l02, slip op. at 3, Steele, J. (Del. Super. Sept. 19, 1991), aff’d mem., 612 A.2d 157 (Del. 1992); State v. Dennis, Cr. A. Nos. 1K89-06-0067 & 1K89-0808-0809, slip op. at 6, Steele, J. (Del. Super. Feb. 21, 1990); State v. Callaway, Cr. A. Nos. S86-12-0070-0071, slip op. at 20, Chandler, J. (Del. Super. July 29, 1988), aff’d mem., 565 A.2d 279 (Del. 1989).

6. State v. Dennis, Cr. A. Nos. 1K89-06-0067 & 1K89-0808-0809, slip op. at 9, Steele, J. (Del. Super. Feb. 21, 1990).

7. State v. Reed, Cr. A. Nos. 90-07-0929-09-30, slip op. at 8, Lee, J. (Del. Super. June 26, 1992).

8. See Jensen v. State, 482 A.2d 105, 119 (Del. 1984).

9. Hicks v. State, 913 A.2d 1189, 1193-94 (Del. 2006); iHLloyd v. State, 534 A.2d 1262, 1267 (Del. 1987); Richardson v. State, 436 A.2d 1127, 1127-28 (Del. 1981); Tyre v. State, 412 A.2d 326, 330 (Del. 1980); State v. Hamilton, 406 A.2d 879, 880 (Del. Super. 1974); State v. Watson, 186 A.2d 543, 545 (Del. Super. 1961), aff’d, 184 A.2d 780 (Del. 1962); State v. Lynch, 128 A. 565, 568 (Del. O. & T. 1925). See also Saunders v. State, 401 A2d 629, 633-34 (Del. 1979), cert. denied, 449 U.S. 845 (1980); O’Neal v. State, 247 A.2d 207, 210 (Del. 1968); State v. Naylor, 90 A. 880, 885 (Del. O. & T. 1913).

10. Lloyd v. State, 534 A.2d 1262, 1267 (Del. 1987).

11. Styler v. State, 417 A.2d 948, 952 n.4 (Del. 1980).

12. State v. Jackson, Cr. A. No. 1N81-09-0424-0425, slip op. at 3, Christie, J. (Del. Super. Mar. 18, 1982), aff’d mem., 467 A.2d 453 (Del. 1983).

13. State v. Stephenson, Cr. A. No. 1N91-0l-1448, slip op. at 5, Goldstein, J. (Del. Super. June 14, 1991).

14. Cabrera v. State, 840 A.2d 1256, 1266 (Del. 2004); Blankenship v. State, 447 A.2d 428, 433-34 (Del. 1982); State v. Russo, I.D. No. 93007979DI, slip op. at 5, Barron, J. (Del. Super. Oct. 8, 1996). See also State v. Washington, Cr. A. Nos. IN9l-01-0558 & 0560, slip op. at 3, Gebelein, J. (Del. Super. Oct. 15, 1992) (where defendant offers newly discovered evidence that a witness testified falsely, judge must be reasonably satisfied that witness deliberately testified falsely and that, without such testimony, jury might have reached a different conclusion); State v. Young, Cr. A. Nos. 77-09-0001-0004, slip op. at 10, O’Hara, J. (Del. Super. Oct. 4, 1982).

14.1. State v. Chao, Cr. A. Nos. IN88-03-1021-1025 & 1027-1028, slip op. at 3, Gebelein, J. (Del. Super. Feb. 17, 1995).

14.2. State v. Russo, 700 A.2d 161, 165-72 (Del. Super. 1996), aff’d mem., 694 A.2d 48 (Del. 1997).

14.3. Blankenship v. State, 447 A.2d 428, 435 (Del. 1982); State v. Russo, 700 A.2d 161, 179 (Del. Super. 1996), aff’d mem., 694 A.2d 48 (Del. 1997).

15. State v. Perry, Cr. A. Nos. 1N85-1O-1668-1673, slip op. at 34, Chandler, V.C. (Del. Super. Dec. 16, 1987).

16. Super. Ct. Cr. R. 33; Comm. Pls. Ct. Cr. P.. 33; Fam. Ct. Cr. P.. 33; J.P. Ct. Cr. R. 22. See also Ald. & M. Ct. R. 21 (motion for a new trial based upon newly discovered evidence must be made within five working days after entry of judgment).

16.1.  Maxion v. State, 686 A.2d 148, 151 (Del. 1996); Whitfield v. State, 524 A.2d 13, 17 (Del. 1987).

17. See State v. Graham, Cr.A. Nos. 1K86-02-0819-0826, slip op. at 6, Ridgely, J. (Del. Super. Feb. 4, 1994) (finding that there was no such visit during the trial), aff’d mem., 642 A.2d 836 (Del. 1994).

17.1. Hicks v. State, 913 A.2d 1189, 1194 (Del. 2006).

18. Blankenship v. State, 447 A.2d 428, 435 (Del. 1982); Super. Ct. Cr. R. 33; Comm. Pls. Ct. Cr. R. 33; Fam. Ct. Cr. R. 33; J.P. Ct. Cr. R. 22; Ald. & M. Ct. R. 21.

19. Blankenship v. State, 447 A.2d 428 (Del. 1982).

20. Hutchins v. State, 153 A.2d 204, 207 (Del. 1959); State v. Gregory, Cr. A. Nos. 1N90-01-1520-1523, slip op. at 5, Toliver, J. (Del. Super. Aug. 13, 1991).

21. Super. Ct. Cr. R. 57(d); Comm. Pls. Ct. Cr. R. 57(b); Fam. Ct. Cr. R. 57; J.P. Ct. Cr. R. 33. See also State v. Marvel, Cr. A. No. 89-04-0155R-l, Graves, J. (Del. Super. Mar. 23, 1993); State v. Washington, Cr. A. Nos. 1N91-0l-5558-0560, Gebelein, J. (Del. Super. Feb. 5, 1993).

22. State v. Murray, Cr. A. Nos. N94-03-1721AC-1723AC, Carpenter, J. (Del. Super. Aug. 8, 1995).

22.1. Dickens v. State, No. 498, 2003, Steele, J. (Del. June 25, 2004) (ORDER), disposition reported at 852 A.2d 907 (Del. 2004) (TABLE).

22.2. State v. Outten, Cr. A. Nos. IN-92-01-1144-R1, IN-92-01-1145-R1, IN-92-01-1146-R1, IN-92-01-1147-R1, IN-92-01-1148-R1, slip op. at 1, Herlihy, J. (Del. Super. Feb. 29, 2008).

© 2010  David L. Finger