If you have just been convicted of a sex crime, is there any hope? The answer is yes. Generally, there are
three post-conviction relief procedures:
- A Motion for New Trial;
- An Appeal (Also known as a Direct Appeal); and
- A Petition for a Writ.
MOTION FOR NEW TRIAL
A motion for a new trial is the first opportunity to overturn a conviction and have a second chance to fight the charges in front of a new jury. This motion is made before the trial judge before sentencing and is much faster than the appeal process.
What does a motion for a new trial involve? Your team must obtain and thoroughly review the transcript of your trial to determine what legal errors were made. Such errors include the failure to present evidence of innocence, improper admission or exclusion of evidence, jury instruction error and jury misconduct.
The motion has two purposes: The first is to have the case reversed by the trial judge. The second is to raise all appealable issues at the trial court level so they may be pursued on appeal, if necessary. The golden rule of appeals is that no issues or evidence can be raised or presented in an appeal unless first raised or presented to the trial court.
Here are some examples of issues that can be raised with a motion for a new trial:
- The trial attorney failed to object to improper expert testimony and/or failed to rebut with a defense expert.
- The trial attorney failed to conduct a necessary investigation and/or failed to present evidence that could have led to an acquittal or was necessary for rebuttal.
- Improper jury instruction.
Putting all evidence on the record is a crucial function of a Motion for a New Trial. It should be noted that most trial judges are reluctant to grant a Motion for a New Trial as this would require the trial judge to admit that a legal mistake was made in his or her courtroom.
APPEAL
An appeal is very different from a trial because there is no jury and no new evidence may be presented. The appellate court only reviews errors contained in the record on appeal.
The Court of Appeal determines if a legal error was committed that caused prejudice to your case. If the finding is in your favor, a new trial is granted. The Court of Appeal does not decide if the jury made a mistake of fact in deciding your guilt.
Appellate cases are decided by three-judge panels. The judges (Justices) primarily make decisions based on written documents called "briefs." An Opening Brief is filed by the defendant (also called the appellant at this stage). The Respondent (usually the State Attorney General) will file an opposing Respondent's Brief. Then, the Defendant/Appellant can file a Reply Brief to rebut the arguments made by the State. After the briefing stage is completed, the Court of Appeal reviews the briefs along with the record on appeal. The parties may then request oral argument. The argument is presented before the three judges who will decide the case. A decision follows in several weeks.
Examples of sex crime convictions reversed on appeal include:
- The prosecution's failure to turn over exculpatory evidence. That is evidence in the prosecution’s possession, which might show that the defendant was innocent, but is withheld by the prosecution.
- Insufficiency of evidence. For example, the failure of the prosecution to provide testimony regarding dates or details of the alleged acts.
- Violation of the defendant’s Sixth Amendment right to confront his or her accuser by the erroneous admission of the accuser's out-of-court (hearsay) statements when the accuser cannot or does not testify.
- Violation of the defendant's Fourth Amendment right to be free from improper search and seizure. For example, evidence of child pornography obtained by police through an improper search was admitted when it should have been suppressed (made admissible).
- Violation of the Defendant's Fifth Amendment right against self-incrimination when the defendant's confession was improperly obtained. For example, by failure to advise the defendant of his or her Miranda Rights.
WRIT PETITIONS
A Writ Petition may be filed in conjunction with an appeal to enable the presentation of facts or arguments based on information that is outside of the record.
A post-conviction writ is limited to issues affecting a defendant’s right to a fair trial. Examples include the denial of the right to effective assistance of counsel, the lack of lower court jurisdiction to try the defendant, and the suppression of material evidence by the prosecution resulting in the denial of a fair trial. Thus, if it is discovered that the district attorney withheld evidence, the issue may be presented to the court of appeal in a writ.
Common issues include failure to conduct a proper investigation, failure to present known and helpful witnesses, failure to make proper objections, and the failure to disclose a conflict of interest.
If an appeal has been denied in the California Supreme Court and federal constitutional issues exist, such as a warrantless search, failure to give Miranda warnings or other trial court errors impacting due process, a writ of habeas corpus can be filed with the Federal District Court seeking relief.
A Writ Petition may be the sole remaining avenue for overturning a conviction if the time for filing an appeal has expired (generally, sixty days after sentencing). This is often the case when, months and even years after the conviction, compelling new evidence emerges. Such evidence may include:
- Recanted testimony: A key witness from the original trial comes forward and admits to lying or providing false information, which significantly undermines the prosecution's case.
- Newly discovered alibi witnesses: Witnesses who can establish the defendant could not have committed the offense. Mistaken identity or the defendant was elsewhere at the time of the offense.
- Exculpatory forensic evidence: DNA, fingerprint or other forensic evidence implicates someone other than the defendant.
- Newly discovered video footage: Security camera footage or bystander recordings that contradict the original narrative or place the defendant elsewhere.
Newly discovered evidence sufficient to overturn a conviction must be credible, reliable, and demonstrably capable of producing a different verdict at trial.
The Innocence Legal Team provides expert representation in all post-conviction matters. Let us help. Please follow the link below.
This posting is intended to provide general information only and does not constitute legal advice.
