Interpreting the Phrase Newly Discovered Evidence : May Previously Unavailable Exculpatory Testimony Serve as the Basis for a Motion for a New Trial Under Rule 33?

Rule 33 of the Federal Rules of Criminal Procedure permits a federal court to grant a new trial to a criminal defendant if the “interest of justice so requires,” specifying as one potential basis the availability of “newly discovered evidence.” The federal circuit courts have disagreed as to whether postconviction testimony proffered by a codefendant who had remained silent at trial may serve as the basis for a Rule 33 motion grounded on newly discovered evidence. A majority of the federal circuits, including, most recently, the U.S. Court of Appeals for the Second Circuit, have held that, while a codefendant’s posttrial offer of exculpatory testimony may constitute “newly available evidence,” it does not constitute “newly discovered evidence,” as Rule 33 requires. Conversely, the U.S. Court of Appeals for the First Circuit has concluded that Rule 33’s reference to newly discovered evidence does include a codefendant’s newly available testimony. The history of Rule 33 and the conflict among the circuit courts regarding the interpretation of the phrase “newly discovered evidence” reveals a tension between courts’ desire to protect legitimate convictions against posttrial attack based on unreliable or false testimony and the need to exonerate the wrongly convicted. In view of these conflicting policies, this Note advocates an approach that aligns with the history, purpose, and text of Rule 33 and yields fair and efficient results