Written by attorney James Regan

Post-conviction relief in Florida when witnesses recant their testimony.

A Movant must meet two prongs to set aside a conviction based on newly discovered evidence, : (1) the “asserted facts must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence;" and (2) “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial." Jones v. State, 591 So.2d 911, 915-16 (Fla.1991)

To ascertain that the newly discovered evidence demands the remedy of a new trial, the court has to “consider all newly discovered evidence which would be admissible and must evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial." Tompkins v. State, 994 So.2d 1072, 1086 (Fla.2008) (internal quotation marks omitted) (quoting Jones, 591 So.2d at 916), cert. denied, --- U.S. ----, 129 S.Ct. 1305, --- L.Ed.2d ---- (2009).

Often, newly discovered evidence concerns recent recantation by state witnesses. Recantation by a prosecution witness won't always confer a Movant the right to a new trial. A new trial culd be granted when the Judge reviews all the facts of the case including the recanted testimony of the witnesses submitted on the motion for the new trial.

As the Florida Supreme Court has opined: “Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury." If it appears a different verdict would be reached based upon the facts, old and new, a new trial may be granted. Archer v. State, 934 So.2d 1187, 1196 (Fla.2006) (quoting Armstrong v. State, 642 So.2d 730 (Fla.1994)).

Additional resources provided by the author

Lambrix v. State, 39 So.3d 260 (Fla., 2010)

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