Getting a "Motion for a New Trial" in Denver, Colorado
Colorado Rule of Criminal Procedure 33

Defendants who get convicted at a criminal trial in Colorado may then file a motion for a new trial. If the judge grants this motion, the original guilty verdict is dismissed and the defendant gets an entirely new trial.

For immigrants charged with deportable offenses, a new trial can be their best hope for staying in the U.S.

Judges do not grant a motion for a new trial unless the defendant can show his/her trial was prejudiced by such mistakes as (1) prosecutorial or judicial errors, (2) jury misconduct or bias, (3) ineffective assistance of counsel, (4) insufficient, omitted, or conflicting evidence, or (5) crucial evidence that did not come to light until after the trial.

Below our Denver criminal defense attorneys discuss how convicted defendants may pursue a motion for a new trial in Colorado. Click on a topic to go to that section.

Also see our articles on motions for reconsideration in Colorado and post-conviction relief in Colorado.

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1. What is a motion for a new trial in Colorado?

A motion for a new trial is when a defendant who is convicted at trial requests that the court hold a brand new trial. In this motion, the defendant explains why the original trial was so problematic it denied his/her right to a fair trial. In short, a motion for a new trial asks for a redo as if the original trial never happened.1

Note that a motion for a new trial is very different from an appeal. An appeal is when the defendant asks a higher court to review the trial. Whereas a motion for a new trial is when the defendant asks the same court that conducted the trial to hold a new one...

For example, a trial in Denver Criminal Court may be appealed to the Colorado Court of Appeals. But if a trial in Denver Criminal Court results in a guilty verdict, the defendant may file a motion for a new trial in the same Denver Criminal Court.

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Judges rarely grant motions for a new trial.

2. Can I get a new trial?

Everyone who is convicted at trial in Colorado may file a motion for a new trial. In practice, judges rarely grant new trials...

But if the defendant shows compelling grounds that he/she was denied a fair trial, the judge may agree to order a do-over.2

3. What are the grounds for a motion for a new trial in Colorado?

Colorado courts may grant a new trial if "required in the interest of justice."3 No trial is perfect, so a judge will not grant a new trial if only minor mistakes were made. Denver criminal defense attorney Michael Becker gives an example:

Example: Lillian gets convicted at trial for the Colorado crime of arson. Lillian moved for a new trial on the grounds that the Denver Police Department conducted an illegal search of her home.

It is true that the police violated Lillian's constitutional rights by not securing a search warrant before conducting the search. But the prosecution did not end up introducing any evidence from this search. Since Lillian's defense was therefore not prejudiced from this unlawful search, the judge rejected her motion for a new trial.

In sum, a judge will grant a new trial only if the defendant shows that the mistakes denied him/her a fair trial.4 Just some of the common grounds for granting a new trial include the following:

  • Prosecutorial misconduct
  • Judicial errors
  • Unfair or improper jury instructions
  • Jury misconduct or bias5
  • Ineffective assistance of counsel
  • Perjury
  • Insufficient evidence, conflicting evidence and/or erroneous admission of evidence
  • Newly discovered evidence that sheds new light on the case

Standard for newly discovered evidence

Courts will grant a motion for a new trial based on newly discovered evidence if the defendant shows:

  1. the evidence was discovered after the trial;
  2. the defendant and his/her counsel exercised diligence to discover all possible evidence favorable to the defendant prior to and during the trial;
  3. the newly discovered evidence is material to the issues involved, and not merely cumulative or impeaching; and
  4. the newly discovered evidence is of such a character as probably to bring about an acquittal verdict if presented at another trial.

In short, newly discovered evidence can justify a motion for a new trial if its absence probably resulted in the conviction.6

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Unless there is newly discovered evidence, motions for a new trial in Colorado must be filed within 2 weeks of the verdict.

4. How do I file a motion for a new trial in Colorado?

As with most court motions, a motion for a new trial must be in writing. The motion must also "identify with particularity" the defects and errors in the first trial.

If the motion is based on newly discovered evidence or jury misconduct, the motion must be accompanied by an affidavit.7 Once the motion for a new trial is filed, the prosecution will probably file a response in opposition of the motion.

The judge has the discretion to order a hearing on the matter. A hearing is where the defense and prosecution make their arguments live in open court. But the judge also has the discretion to grant or deny the motion without a hearing.8

5. When do I file a motion for a new trial in Colorado?

If there is newly discovered evidence, the defendant may file the motion whenever he/she discovers the evidence. Otherwise, the defendant has 14 days after the verdict to file a motion for a new trial. But note that the defendant may ask for an extension of time during that 14-day time frame.9

6. What happens if my motion for a new trial is granted?

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If a judge denies a motion for a new trial in Colorado, the defendant may appeal.

The judge schedules a new trial, and the guilty verdict of the original trial is void.

However, note that the prosecution may appeal the judge's decision. And if the appellate court finds for the prosecution, the original verdict will stand.10

7. What happens if my motion for a new trial is denied?

Then the verdict stands, but the defendant can appeal the court's denial of a new trial. In addition, the defendant can appeal the trial's guilty verdict and pursue other post-conviction options.11

8. Do I have to file a motion for a new trial if I am convicted in Colorado?

No, but defendants who choose not to file a motion for a new trial will probably lose the option later to file a federal habeas corpus petition in federal court in Denver.12

9. If I am an immigrant, will a motion for a new trial help me stay in the U.S.?

Maybe. Lawful non-citizens in Colorado can be removed from the U.S. if they have been convicted of a deportable offense at trial...

But if they are successful in getting the court to grant them a new trial, they have another chance at being acquitted. And if they are acquitted, they should no longer be deportable. Learn more about the criminal defense of immigrants in Colorado.

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Call our Colorado criminal defense attorneys at (720) 955-6112.

Call a Colorado criminal defense attorney...

If you have been convicted at trial in Colorado, contact our Denver criminal defense attorneys for a FREE consultation at 720-955-6112. We may be able to get you a new trial and fight for a full acquittal.


Legal references

  1. CO ST RCRP Rule 33.
  2. See id.
  3. CO ST RCRP Rule 33(c).
  4. People v. Evans, 710 P.2d 1167, 1168 (Colo. App. 1985) ("[T]he defendant must establish that he was prejudiced by the misconduct in order to overturn his conviction, and the prejudicial impact of the misconduct is a question of fact to be determined in light of all the circumstances of the trial[.]")
  5. See id.
  6. People v. Estep, 799 P.2d 405 (Colo.App.1990).
  7. CO ST RCRP Rule 33(c).
  8. CO ST RCRP Rule 33(a).
  9. CO ST RCRP Rule 33(c).
  10. CO ST RCRP Rule 33(d).
  11. CO ST RCRP Rule 33.
  12. 28 U.S.C. § 2254(b) (1996).

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