Is the Prevailing Legal Standard for ‘New Evidence’ Right?

Very informative piece about the ever increasing hurdle for those who are challenging their wrongful convictions. Also, it comes from a very good blog called Wrongful Convictions Blog. Thanks to our friends at the Innocence Project for sending this along!

Many post-conviction innocence cases rely upon the discovery of new evidence to support a claim of actual innocence.  But to be admissible in the case, the new evidence must meet the prevailing legal standard for admissibility.

In Ohio, this standard is called the Petro standard, because it resulted from the case of Ohio vs. Petro in 1947.  OH vs. Petro  Most states use some version of this standard.  There are six prongs to the standard:

It is required that the new evidence ……..

(1) discloses a strong probability that it will change the result if a new trial is granted

(2) has been discovered since the trial

(3) is such as could not in the exercise of due diligence have been discovered before the trial

(4) is material to the issues

(5) is not merely cumulative to former evidence

(6) does not merely impeach or contradict the former evidence.

It always seems to be the case that the most troublesome requirement is #3, which states that any new evidence must be something that, with due diligence, could not have been discovered at time of trial.

The court has a fair amount of discretion in determining what “discoverable” and “due diligence” mean in these matters.  However, experience tells me that if the evidence existed at time of trial in any form, no matter how arcane, or whether it existed in separate “pieces” that would require synthesis, the decision is invariably that it was discoverable.

So, here’s the rub.  Time and again, I’ve seen cases in which exculpatory evidence has been discovered proving that the defendant is innocent.  This is usually evidence that, for some reason or another, simply wasn’t known by the defense team at the time.  When the new evidence is presented, both the judges and the prosecutors in these cases have to know in their heart and at the core of their being that the defendant is innocent.  But the defense’s motion for appropriate legal relief always receives the same ruling – motion denied.

This kind of thing happens all the time.  Indisputable evidence surfaces proving innocence, but it is ruled that it could have been discovered at time of trial, so an innocent person stays in prison.  And by the way, some prosecutors don’t care. They will go to any length to keep from having to admit they got it wrong the first time – even if it means keeping an innocent person in prison.  Ordinary, everyday logic tells even the casual observer that the defendant is innocent.  But as they say, “The law may not always be logical, but the law is always the law.”

There must be some way to fix this.

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