The right to a trial by jury is one of the most important rights a criminal defendant in California has.  Though many cases do settle earlier on in the case (read about Plea Bargaining), it is the possibility of trial and the merits of the case at trial that would give the parties leverage in those negotiations.  When a defendant does take a case to trial, but is nonetheless denied a fair trial, there may be grounds for a new trial.  (read more about Criminal Trials).

A new trial motion is similar to an Appeal in that many of the same grounds are explored.  In this regard, a new trial motion is often the best first step upon conviction.  Not only does it offer the remedy of a new trial, but in the event that the new trial is denied, much of the work necessary to conduct an effective appeal has already been done.  It should be noted, however, that in some specific instances, a new trial motion may give the trial judge an opportunity to clean up certain issues and creating a record for appeal that is not as favorable to the defendant.  Whether to have a new trial motion or move directly to appeal is an important decision, but each case must be carefully considered.

The most frequent grounds for a new trial involve:
-allegations of juror misconduct (using outside information, improper deliberations, improper verdict)
-judicial misconduct (making a legal error, improperly instructing jurors)
-prosecutorial misconduct (withholding evidence, improper argument)
-evidence issues (insufficient evidence to convict, newly discovered evidence)

Penal Code Section 1181 governs the grounds for a grant of a new trial.  A new trial may only be granted on defendant's motion under one of the following circumstances:

1. When the trial has been had in the defendant's absence except in cases where the trial may lawfully proceed in his absence (pursuant to Penal Code 977; see Do I have to go to court);

2. When the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property;

3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented;

4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors;

5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury;

6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed;

7. When the verdict or finding is contrary to law or evidence, but in any case wherein authority is vested by statute in the trial court or jury to recommend or determine as a part of its verdict or finding the punishment to be imposed, the court may modify such verdict or finding by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed;

8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable.

9. When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.

If you or a loved one has been convicted at trial and you have concerns that there was not a full and fair opportunity, consult with a criminal defense attorney now to discuss the options.  A new trial motion must be filed before a defendant is sentenced, so time is of the essence.  Contact a Los Angeles Criminal Defense Lawyer now for a FREE CONSULTATION 213-375-3775.