Motion for a New Trial – FAQs

1.    If my attorney fails to object to the prosecutorial misconduct when it occurred, can I still make a motion for a new trial on other grounds?

Yes. Depending on the circumstances, if your attorney fails to respond to the prosecutorial misconduct that negatively affected your case, you can request a motion for a new trial based on ineffective assistance of counsel.

2.    What acts qualify as jury misconduct that would warrant a new trial?

Any conduct that is contrary to the instructions of the judge or the duties of the jury constitutes jury misconduct. This can occur in situations where a juror discusses the case with outsiders in the course of the trial, refuses to deliberate, or conducts an independent investigation into the matter. However, in order to warrant a new trial, the misconduct must lead to incurable prejudice that is detrimental to the defense. Mere misconduct is not enough.

3.    What if the motion for a new trial is denied? What can I do then?

If the judge decides to deny the motion for a new trial, the ensuing sentencing hearing will address the question of probation and sentence. Although you may begin to serve the sentence, you can still appeal the verdict. This is a separate proceeding in which your attorney will ask a higher appellate court to review the decision of the trial court and potentially overrule the guilty verdict based on an error of law or procedure. Also available is a petition for writ of habeas corpus, which requests release from unlawful or wrongful confinement in prison.

4.    I know a court can grant a new trial based the motion of a moving party, but are there other circumstances in which a judge will order a new trial?

Yes. A new trial may be ordered when there is a “hung jury,” which is when the jury cannot reach a decision because of some sort of deadlock or impasse during deliberations.