What is the test for a motion for a new trial based on a claim of newly discovered evidence?

MultiRegion, United States of America

The following excerpt is from United States v. Parse, 789 F.3d 83 (2nd Cir. 2015):

Thus, a motion for a new trial based on a claim of newly discovered evidence generally should not be granted unless, inter alia, the evidence was in fact newly discovered after trial, and facts are alleged from which the court can infer the exercise of due diligence on the part of the movant to obtain the evidence prior to the end of the trial. See, e.g. , United States v. Ragland, 375 F.2d 471, 475 (2d Cir.1967) (To give an accused a second trial each time he doubts, after an unfavorable verdict, the objectivity of jurors, would seriously impede the processes of justice.), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968) ; United States v. DiazAlbertini, 772 F.2d 654, 656 (10th Cir.1985) (where a juror failed to disclose his close ties with law enforcement officials and a new trial was granted to the defendant wife who had no knowledge of that nondisclosure, affirming the denial of a new trial to the defendant husband, whose attorney testified that when he was informed of the nondisclosure prior to trial, he decided at th[at] time that he would later raise the issue should we have a conviction (internal quotation marks omitted)), cert. denied, 484 U.S. 822, 108 S.Ct. 82, 98 L.Ed.2d 45 (1987) ; id. at 657 (a litigant cannot transform a tactical decision to withhold the information from the court's attention into a trump card to be played only if it becomes expedient); United States v. Bolinger, 837 F.2d 436, 439 (11th Cir.) (affirming denial of a new trial where defendant's attorney learned of juror misconduct during trial and gamble[d] on the jury rather than inform[ing] the court of the problem in time to allow the court to determine if corrective action was possible prior to verdict), cert. denied, 486 U.S. 1009, 108 S.Ct. 1737, 100 L.Ed.2d 200 (1988) ; United States v. Morris, 977 F.2d 677, 686 (1st Cir.1992) (We will not allow counsel to stand by quietly and gamble on a favorable verdict, only to complain when it turns out to be otherwise.), cert. denied, 507 U.S. 988, 113 S.Ct. 1588, 123 L.Ed.2d 155 (1993).

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