February 10, 2022 By Paul Wallin

How Newly Discovered Evidence Can Be Raised While Your Case Is On Appeal

Let’s say you are a defendant in a criminal case.  You believe the charges against you are wrong, the allegations are false, and you proceed to a jury trial to prove your innocence.  You are hoping for the best, but prepared for the worst.  Your attorney presents evidence and you might even choose to testify on your own behalf.  Despite your best efforts, the jury returns a guilty verdict.  

What Does It Mean To Appeal A Conviction?

So now what do you do?  You can appeal the conviction and hope that your appellate attorney can convince the court of appeals that an error within the record exists that severely prejudiced your case and affected the outcome.  It is of course your right to appeal.  However, most appellants, the person appealing and sometimes called the petitioner, are surprised to find out that an appeal is not a new trial and that the court of appeals is limited to reviewing only issues within the record.  This means that the court of appeals cannot hear witnesses or consider errors not previously brought to the trial court’s attention.  The court of appeals can only look to issues that were addressed at some point during the proceedings, meaning your attorney objected to evidence offered by the prosecution or rulings made by the judge. 

So what happens if, following your conviction, you or your attorney, discovers new evidence that absolutely should have been considered by the jury and trial court?  One would think that when a case is before the court of appeals, the old adage that the court of appeals can only look to “the four corners of the record” would prevent you from raising this issue.  However, there is a little known process that is available for just this instance. 

What is a Writ of Error Cornam Nobis?

Enter the common law writ of error cornam vobis.  Some attorneys are familiar with the common law writ of error cornam nobis, but very few are familiar with its appellate cousin.  A writ of error cornam nobis (Latin for “before us”) is a common law petition alleging some form of reversible error before a trial court.  By contrast, a writ of error cornam vobis (Latin for “before you”) is filed before the appellate court.   For these reasons, if your case is pending appeal, then the appellate court has jurisdiction over your writ of error cornam vobis.

Although presently, the writ of error cornam vobis is largely unused due to restrictions on when it can be raised and the existence of the statutorily available motions for a new trial, this writ is nevertheless a powerful option.  

Writ of Error Cornam Nobis | Petitioner Requirements

The writ is subject to certain specific requirements that the petitioner must show before the court of appeals can rule on the merits.  First, the petitioner must show: “some fact existed which without any fault or negligence on his part, was not presented to the court at the trial on the meris, and which if presented would have prevented the rendition of the judgment.”  (People v. Kim 45 Cal. 4th 1078 (2009).) 

Next, the petitioner would have to show that “the newly discovered evidence . . . [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly cannot be reopened except on a motion for a new trial.’  [Citations] This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied.”  (Kim, 45 Cal. at 1093.)

Thirdly, “the facts upon which [the petitioner] relies were not known to [the petitioner] at any time substantially earlier than the time of [the] motion for the writ.”  (Kim, 45 Cal. 4th AT 1097.)  This requires “the showing of diligence essential to the granting of relief by way of cornam nobis should be no less than the similar showing required in civil cases where relief is sought against lately discovered fraud.  In such cases it is necessary to aver not only probative facts upon which the basic claim rests, but also the time and circumstances under which the facts were discovered, in order that the court can determine as a matter of law whether the litigant proceeded with due diligence; a mere allegation of the ultimate facts, or of the legal conclusion of diligence is insufficient.”  (Id.at 1096-97 [emphasis omitted].) 

When can the Writ Error of Cornam Nobis be Used?

You cannot file this writ “where the defendant had a remedy by (a) appeal or (b) motion for a new trial and failed to avail himself of such remedies.”  (Kim, 45 Cal. 4th at 1093.)  In some instances, the court will not entertain the petition without a showing of fraud/misrepresentation or when a party fails to disclose material facts thus depriving the other party from having a meaningful hearing and fully presenting all of the evidence in support of his or her case.  (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian 218 Cal. App. 3d 1058, 1090-91 (1990).)    

Additionally, the writ can only be used “to correct an error of fact.  It never issues to correct an error of law.”  (People v. Forest (2017) 16 Cal. App. 5th 1099, 1112.)  The petitioner cannot file the writ to reevaluate findings or opinions in light of the newly discovered facts.  “The writ of error cornam vobis exists to ‘correct’ an error of fact which was unrecognized prior to the final disposition of the proceeding.  It is not intended as a means of revising findings based on known facts, or facts that should have been known by the exercise of ordinary and reasonable diligence.”  (In re Derek W. 73 Cal. App. 4th 828, 831-32 (1999).)

“[T]he writ of error cornam vobis permits the appellate court” to “independently evaluate  whether the newly discovered fact presented in the petition warrants relief,” and, if so, “command  a trial court to reconsider its decision in light of evidence discovered during the pendency of an appeal.”  (Forest, 16 Cal. App. 5th at 1111.) 

Although powerful when available, this form of relief is completely discretionary and should only be reserved when there are no other options available. 

Contact Wallin & Klarich Today

At Wallin & Klarich, our skilled and knowledgeable criminal appeal lawyers have been successfully representing clients in appeal matters for more than 40 years. We’ve helped thousands of people in their time of legal need, and we can help you now.

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles, and San Diego, you can find an experienced Wallin & Klarich criminal appeal lawyer available near you no matter where you work or live. Contact our law firm today, toll-free at (877) 4-NO-JAIL or (714) 831-5293 for a free phone consultation regarding your case. We will get through this together.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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