Neb App attempts to clarify rule for newly discovered evidence

Court of appeals notes apparent inconsistency in Nebraska Supreme Court case State v. Atwater and concludes that when Prosecutor witholds material evidence of guilt or innocence the defendant shall have a new trial if the newly discovered evidence would have injected a "reasonable doubt of guilt."State v. Lykens, 13 Neb. App. 849 Filed August 30, 2005. No. A-04-844. Robbery conviction reversed because Court of Appeals finds witheld police interview of alternate suspect qualified as newly discovered evidence that would warrant a new trial under 29-2101 and the Constitutional rule of US v Augurs. The Court of appeals holds that police interview of another suspect that the county attorney did not disclose until after the trial to the defendant met the definition of "newly discovered evidence" in Section Neb. Rev. Stat. § 29-2101 (Cum. Supp. 2004): A new trial, after a verdict of conviction, may be granted, on the application of the defendant, for any of the following grounds affecting materially his or her substantial rights: . . . (5) newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial . . . . "the (alternate suspects) interview transcript was first seen by the defense after the trial, when it was included in the presentence investigation report. In light of this, we conclude that the transcript of the interview with Joseph Brainard does constitute newly discovered evidence because it is evidence material to the defense that could not with reasonable diligence have been discovered and produced in the prior proceedings." The standard for allowing a new trial for any newly discovered evidence in a criminal trial under statute § 29-2101 (Cum. Supp. 2004) is: if the evidence had been admitted at the former trial and would probably have produced a substantially different result, the court should order a new trial. State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).State v. Atwater, 245 Neb. 746, 752-53, 515 N.W.2d 431, 435 (1994). The constitutional standard for allowing a new trial for evidence the defense newly discovers but which the state had witheld is: if the omitted evidence creates a reasonable doubt of guilt that otherwise did not exist, the error violates the defendant's constitutional right to a fair trial and he must have a new trial; the standard is not probable acquittal. [United States v.] Agurs, [427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); State v. Atwater, 245 Neb. 746, 752-53. The Appeals Court concludes that the "substantially different result" standard from 29-2101 is harder to meet than "creating a reasonable doubt of guilt." Therefore the Nebraska Supreme Court concludes that 29-2101 must incorporate both a standard that requires reversal when withheld evidence injects "reasonable doubt" of guilt while reserving the "substiantially different result" standard for newly discovered evidence that law enforcement had not possessed. "A careful reading of Atwater, supra, indicates that the Nebraska Supreme Court intended to make it easier, not harder, for defendants to be granted a new trial based on newly discovered evidence when that evidence is withheld by the prosecution. Because a literal reading of Atwater would produce an unreasonable result, we interpret the Nebraska Supreme Court’s opinion to mean that in cases when the evidence alleged to be newly discovered was withheld by the State, a defendant is entitled to a new trial if the omitted evidence could have created a reasonable doubt that he or she committed the alleged crime or crimes." The Appeals Court opinion does not state whether the "injecting reasonable doubt" standard is equivalent to the Strickland v Washington "reasonable probability of a different outcome test":for the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See earlier post on the Supreme Courts adopting the substantially different outcome test for evaluating DNA testing claims for new trial in State v ElTabech