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    Criminal Defense Division

    “Motion for a New Trial” in California – A 2nd Shot at Justice

    What is a "Motion for a New Trial?" -- A Former D.A. explains

    Penal Code 1181 PC allows a person convicted of a crime in California to seek a new trial. In simple terms, a motion for a new trial is a request to set aside the conviction and to have a new jury hear and redecide the case.

    If the motion is granted, the accused is given a second chance as if no previous trial had taken place.

    Our California criminal defense attorneys will discuss the following in this article:

    judge inside a courtroom - a Penal Code 1118 motion for a new trial is brought before a judge

    A PC 1181 motion is a defendant’s request to have a new jury trial.

    1. What are the grounds to make a motion for a new trial?

    1.1. Jury misconduct

    Misconduct of the jury is when a jury does any of the following:

    • receives outside information,
    • intentionally misleads the attorneys during jury selection,
    • participates in any form of jury misconduct,
    • interprets evidence using the wrong burden of proof, or
    • engages in improper deliberations.

    An example of improper deliberations is when the jury discusses that a defendant did not testify.1

    1.2. Prosecutorial misconduct

    Prosecutorial misconduct refers to the use of “deceptive or reprehensible methods to influence the jury” in criminal cases.2

    Examples of such misconduct include:

    • commenting on inadmissible evidence,3
    • intentionally eliciting inadmissible and/or prejudicial answers from witnesses,4
    • conducting an improper cross-examination of the defendant or other defense witness,5 and
    • appeals to passion or prejudice.6

    As with jury misconduct, prosecutorial misconduct will only lead to new trials – and therefore potential acquittals – if it prejudiced the defendant.

    1.3. An error of law by the court

    An error of law by the court happens when the trial court judge:

    1. misdirects the jury on a matter of law, or
    2. makes a wrong legal ruling

    For instance the jury’s job is to apply the facts of the case to the elements of the crime laid out in the jury instructions. If the judge gave them inaccurate jury instructions, then the jury’s verdict is undermined.

    A trial judge will grant a motion brought under this ground if the significant legal errors impacted one of the defendant’s substantial rights.

    1.4. Insufficient evidence

    This ground applies to the situation when:

    1. the jury verdict is guilty, but
    2. the defendant believes there was insufficient weight of the evidence to support guilt.

    A judge will grant a PC 1181 motion if he agrees. However, note that judges almost always defer to the jury’s verdict.

    Note, though, that if granted:

    • the defendant does not get another jury, but
    • he receives a full dismissal of the charges against him.

    A dismissal is awarded since “double jeopardy” prevents the prosecution from retrying the case.

    1.5. Newly discovered evidence

    A defendant may be granted a second chance if:

    • following his verdict,
    • he discovered evidence that would probably result in a more favorable case outcome.

    A judge will consider the following factors in deciding whether a more favorable outcome would result:

    1. whether the evidence (and not just its relevance) is new,
    2. whether the evidence is cumulative of what has previously been admitted,
    3. whether the evidence might result in a different outcome during a retrial, and
    4. whether the defense could have reasonably discovered or produced the evidence at trial.7

    1.6. Loss or destruction of record or transcript

    This ground asserts that the record or transcript of a criminal trial has been lost or destroyed.

    The problem with loss or destruction is that a judge cannot properly analyze an appeal if the defendant files one.

    Another trial will be granted, based on this ground, if the court agrees that:

    • based on all of the circumstances of the trial,
    • the lost or destroyed portion of the record or transcript is substantial,
    • so that it affects the ability of the court to fully review an appeal or the defendant’s ability to perfect his appeal.8

    1.7. Other grounds

    In addition to the above, the following will result in a fresh trial:

    • ineffective assistance of counsel which deprived the defendant of their constitutional right to effective representation,9
    • erroneous admission of evidence or suppression of evidence (including expert testimony),10
    • wrong findings of fact or conclusions of law,
    • the prosecutor’s failure to disclose exculpatory evidence (for example, evidence favorable to the accused),11 and
    • a material change in the law.12
    attorneys negotiating

    A motion for a fresh trial is not the same thing as an appeal in criminal law.

    2. Is Penal Code 1181 PC the same as an appeal?

    A motion for a new trial is a different criminal procedure from an appeal.

    An appeal is when:

    • a higher court, called an appellate court (or court of appeals),
    • reviews a defendant’s trial (usually in district court).

    Therefore, an appeal is outside of the trial court’s jurisdiction. During an appeal, a defendant (“appellant”) cannot present new evidence or additional testimony. Further, the appellate court does not re-try the case.

    Rather, the court conducts a re-examination of the record and looks to see if the lower court made any procedural mistakes.

    If the appellate court grants a defendant’s appeal, then the following may take place:

    • the original decision of the lower court gets reversed,
    • a new trial takes place, or
    • the case is sent back to the lower court and that court corrects any mistakes made.

    3. When does a defendant bring the motion?

    A defendant must file a motion for another trial with the clerk of the court before either:

    1. the defendant’s sentencing hearing begins, or
    2. the judge grants probation (if applicable).

    Otherwise, the defendant waives their right to file a motion for a new trial.

    According to Penal Code 1191, the court must rule on the motion within either:

    1. 20 days after a guilty verdict, or
    2. 30 days after the verdict if the defendant needs more time to perfect his motion.13

    The court has broad discretion to grant the motion and may draw reasonable inferences when reweighing the evidence and conducting a re-examination of an issue of fact.

    4. What happens if it is granted?

    Following a new trial order, a fresh trial is conducted with a new jury.

    Note that, if granted, and a defendant is in custody, he may ask to be released on bail per California’s bail laws.

    Also note that judges very rarely grant motions for new trials: They are hesitant to concede that major mistakes occurred in their court that denied defendants their constitutional rights. That being said, motions for a new trial are still worth pursuing.

    5. What happens if it is denied?

    A denial of the motion means that the initial guilty verdict stands. Even after a denial of the motion, a defendant can still win a second chance if he is successful in appealing his case.

    Many of the grounds laid out in a motion for a new trial can serve as grounds for post-conviction relief, including appeals and habeas petitions.

    Also note that there are times when a court, even though it does not order another trial, may:

    1. modify the defendant’s verdict to a lesser included offense of the convicted charge, or
    2. reduce the degree of the charge.14

    6. Can there be motions for a new trial in civil cases?

    Yes. There are seven primary grounds to make this motion. These are:

    1. Insufficient evidence to justify the verdict or decision.
    2. Newly discovered evidence. This evidence is material. And it could not have been – with reasonable diligence –  produced in court.
    3. Damages for the plaintiff that are excessive or inadequate.
    4. Jury misconduct. (A juror can provide an affidavit to help prove misconduct.)
    5. There was an “error in law.”
    6. The verdict is against the law.
    7. The verdict was not fair due to:
      1. Abuse of discretion, or
      2. Proceeding irregularities of the court, an adverse party, or jury

    Legal References:

    1. California Penal Code section 1181 PC. (Under federal rules, it is rule 59.)
    2. People v. Strickland (California Supreme Court, 1974) 11 Cal.3d 946 (re. second degree murder and state prison sentences).
    3. People v. Aragon (1957) 154 Cal.App.2d 646.
    4. People v. Williams (1951) 104 Cal.App.2d 323.
    5. People v. Chandler (1957) 152 Cal.App.2d Supp. 916.
    6. People v. Stansbury (1993) 4 Cal.4th 1017.
    7. People v. Turner (1994) 8 Cal.4th 137.
    8. People v. Holloway (1990) 50 Cal.3d 1098.
    9. People v. Cornwell (2005) 37 Cal.4th 50.
    10. People v. Albarran (2007) 149 Cal.App.4th 214.
    11. Merrill v. Superior Court (1994) 27 Cal.App.4th 1586.
    12. People v. DeLouize (2004) 32 Cal.4th 1223.
    13. California Penal Code 1191 PC; see also Van Beurden Insurance Services, Inc. v. Customized Worldwide Weather Insurance Agency, Inc. (1997) 15 Cal. 4th 51.
    14. California Penal Code 1181 PC.
    15. Code of Civil Procedure sections 656 through 663.2; see People v. Craney (2002) 96 Cal. App. 4th 431. Also see CCP 629 re. judgment notwithstanding the verdict.

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