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

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.

8 responses to “Is the Prevailing Legal Standard for ‘New Evidence’ Right?

  1. Docile Jim Brady – Columbus OH 43209

    “There must be some way to fix this.”

    ☺ There is … Operation Anthropoid …

    bit it is illegal and most prosecutors and judges would dislike it were they to know what it is ☺

  2. So it seems the police/prosecutors are actually rewarded for hiding exculpatory evidence or for doing poor investigative work and not discovering the evidence that could have cleared the person at the time of the investigation. I didn’t know about this.:(

  3. Pingback: Why I Think the US Justice System is Broken – and Why It’s Not Getting Fixed | Wrongful Convictions Blog

  4. Received this reply from our innocence grassroots groups:
    “(3) is such as could not in the exercise of due diligence have been discovered before the trial”
    This position is ridiculous because it is very easy for the state to say that the new evidence could have been found before trial and that’s all they have to do. The state in Courtney’s case has done exactly that. Yes, if you or your husband bludgeoned Courtney’s accusers and alleged eye witnesses within an inch of their lives you could have found out the whole thing was money motivated before trial. Maybe that’s what you should have done because an assault charge is far less time than Courtney is serving.

    “(5) is not merely cumulative to former evidence”
    So a person boasting after trial that they perjured themselves and got someone wrongly convicted is not enough because it is cumulative to their former testimony? Read my lips the word new means something that didn’t exist or wasn’t available before and that’s it. Any fool knows that. These people are less than fools. Whether it is cumulative to former evidence is irrelevant. This is what “attorneys” do. They twist words until they no longer mean what they are supposed to. Case in point, “I did not have sex with that woman” Bill Clinton. While everyone but him evidently knows that what he did with that cigar was sex and nobody does anything about it. That’s the real crime.

    “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.”
    Judges and prosecutors with hearts? What planet is this guy living on? Judges and prosecutors don’t have hearts and if you check, you will find they have no body heat. They have had so many people paraded before them that the numbers have turned them into heartless, cold blooded creatures and are no longer human beings. Besides most judges are elected and we all know how that works with regard to their wallets. Set too many free and you won’t have a job.

    • Docile Jim Brady – Columbus OH 43209

      I did not have sexual relations with that woman, Miss Lewinsky.
      is a correct quote
      and it is not identical to
      I did not have sex with that woman.

  5. Arizona is considering amending ‘Ethical Rules 3.8’ – a small but necessary step in making prosecutors more accountable. Better yet would be a statute to make it a criminal offence for a prosecutor to deliberately suppress exculpatory evidence or use his/her prosecutorial authority in a malicious or vindictive manner. Disbarring such a prosecutor(s) is NOT enough punishment for all the harm he/she have done to untold thousands – have you read about the former Maricopa County Attorneys?

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