Often individuals come to our firm concerned that favorable evidence was not presented to the jury. They frequently want to know how to petition for a new trial.
Military law generally creates a few different ways to request a new trial.
1) Before the record of trial is authenticated the Military Judge can reopen the trial proceedings under Article 39(a). Post-trial sessions generally only occur if a manifest injustice would result absent the hearing. They generally require newly discovered evidence. United States v. Hull, 70 M.J. 145 (C.A.A.F. 2010). Classic examples include cases where the government failed to disclose important impeachment evidence. Another example might include instances when potential jurors lied during voir dire. United States v. Albaaj, 65 M.J. 167 (C.A.A.F. 2007).
2) After the Record of Trial is authenticated, but before the Convening Authority takes action, the Convening Authority can order Article 39(a) sessions to address any errors. Rule for Courts-Martial 1102.
3) After the Convening Authority takes action, an accused can petition for a new trial under Article 73 UCMJ. It states:
"ART. 73. PETITION FOR A NEW TRIAL
At any time within two years after approval by the convening authority of a court-martial sentence, the accused may petition the Judge Advocate General for a new trial on the grounds of newly discovered evidence or fraud on the court. If the accused's case is pending before a Court of Military Review or before the Court of Military Appeals, the Judge Advocate General shall refer the petition to the appropriate court for action. Otherwise the Judge Advocate General shall act upon the petition."
The decision to grant or deny a new trial is reviewed by the courts under an abuse of discretion standard. US v. Meghdadi, 60 M.J. 438 (C.A.A.F. 2005). In conducting consultations, our firm is looking to determine whether:
1) The military judge's findings of fact were accurate and supported by the record;
2) Whether the military judge's legal principles were correct; and,
3) Whether the military judge drew appropriate conclusions.
We want to carefully investigate grounds for a new trial. We look at:
1) Whether the jurors were honest. US. v. Sonego, 61 M.J. 1 (C.A.A.F. 2005).
2) Whether witnesses have recanted. US v. Cuento, 60 M.J. 106 (C.A.A.F. 2004).
3) Whether witnesses committed perjury.
4) Whether there are new witnesses not previously known to the defense.
There are times when evidentiary hearings are required.
We're happy to discuss your case, if you believe that a new trial is needed.
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