How Do Time Limits in Motions for a New Trial Based Upon Newly  Discovered Evidence Affect Requests for Postconviction DNA Testing?

All States provide some type of statutory scheme, common law authority, or court rule for postconviction relief based upon "newly discovered evidence of innocence." "Newly discovered evidence" is generally construed to mean evidence that was not available at the time of trial, or evidence that counsel could not obtain with the exercise of due diligence.

Among the States, time limits on motions for a new trial based on newly discovered evidence of innocence vary considerably.[1] While some States impose no time limits or make them waivable, a substantial number require the motion to be made within 60 days after judgment. Another sizeable group of States calls for motions to be made within 1 to 3 years. Rule 33 of the Federal Rules of Criminal Procedure has a 2-year time limitation for new trial motions based upon newly discovered evidence. These statutes can impose substantial barriers to gaining access to DNA postconviction testing or to being allowed to introduce favorable results.

Even when a postconviction motion based on newly discovered evidence would lie, prosecutors still have successfully defeated the motion in some cases by using a laches argument. In Ziegler v. State, 654 So. 2d 1162 (Fla. 1995), although the Florida Supreme Court recognized that Florida's 2-year statute of limitations would not bar Ziegler from obtaining a particular kind of DNA test that had not been available at the time of his conviction (1976), the court nonetheless denied his 1994 application because the DNA test Ziegler wanted to perform became "available" in 1991 and Ziegler, who had a postconviction motion pending on other grounds in 1991, did not seek the DNA test within the 2-year time limit. The Florida Supreme Court also found that the DNA test Ziegler was seeking would not produce sufficient exculpatory evidence to vacate the conviction even if the results were favorable to Ziegler. Ziegler, 654 So. 2d at 1164. The "laches" theory enunciated in Ziegler has recently been followed, although criticized in a dissent, by a lower Florida appellate court considering the DNA request of an indigent inmate who filed 2 years after the test was arguably "available" but whose conviction would probably be vacated if the test results were favorable. See Dedge v. State, 723 So. 2d 322, 324 (Fla. Dist. 5 Ct. App. 1998). One can expect further litigation in Florida, and in any other jurisdiction adopting the laches theory enunciated in Ziegler, about when new types of forensic DNA testing first became "available" as a scientific matter, and when, as a practical matter, such testing was truly "available" to indigent defendants.

It is important to note, however, that in addition to providing for new trial motions based on newly discovered evidence, many States have their own habeas statutes, court rules, and/or "interests of justice" case law that permit courts to extend or override time bars on newly discovered evidence motions. For example, in Mississippi there is explicit statutory authority to grant an untimely new trial motion "in the interest of justice" where the prisoner can produce evidence "not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence." Miss. Code. Ann. section 99-39-23 (1998).

Texas, in contrast, has "catch-all" rules that implicitly permit courts to override time bars to post-trial, newly discovered evidence motions. See Tuffiash v. State, 878 S.W.2d 197, 198 (Tex. Crim. App. 1994) (out of time post-trial motion to vacate conviction based upon newly discovered evidence granted because "[i]n an appropriate case, for good cause shown, Rules 2(b) and 80(c) of the Texas Rules of Appellate Procedure allow this court to suspend requirements and provisions of any rule in a particular case on application of a party or on our own motion and may order proceedings in accordance with our direction" (citation omitted)).[2]

Even without statutes that explicitly authorize exceptions to time-barred applications, courts have, in the interests of justice, vacated convictions and released inmates when newly discovered DNA evidence demonstrates innocence and the prosecution joins in the motion.[3] The Supreme Court of South Dakota recently turned aside the prosecutor's timeliness objection and authorized access to vaginal swabs for postconviction testing, Davi v. Joseph Class, Warden, unpublished decision, case No. 19844, Order of Remand (S.D. 1998), although the Court did not issue a written opinion on the subject. See also Jenner v. Dooley, No. 204-28, 1999 WL 105032 at *8, *9 (S.D. Feb. 10, 1999) (setting out guidelines for when postconviction scientific analysis may be authorized.

Finally, it has been suggested that in the State courts petitioners with strong newly discovered evidence should consider making constitutional arguments based on Herrera as a direct challenge to the constitutionality of State statutes of limitations that would bar "actual innocence" claims. See Vivian Berger, Herrera v. Collins: The Gateway of Innocence for Death-Sentenced Prisoners Leads Nowhere, 35 Wm. & Mary L. Rev. 943, 1012-15 (1994); Holmes v. Honorable Court of Appeals for the Third District, 885 S.W.2d 389, 397-98 (Tex. Crim. App. 1994) (en banc) (habeas corpus appropriate vehicle for raising factual innocence claim).

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[1]See Wilkes § 1-13, at 30 and app. A (survey of State postconviction remedies). See also Herrera, 506 U.S. at 410–11 nn. 8–11 (survey of applicable statutes).

[2]See, NIJ Report, supra note 3 at 34–35 (discusses cases in which Texas prisoners had their convictions vacated as a result of untimely newly discovered evidence motions).

[3] See discussion at note 3, supra.