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 misconduct 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.
Short of a new trial, defendants convicted in Colorado may also file a motion for reconsideration (Rule 35b) in an effort to have the sentence reduced.
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.
- 1. What is a motion for a new trial in Colorado?
- 2. Can I get a new trial?
- 3. What are the grounds for a motion for a new trial in Colorado?
- 4. How do I file a motion for a new trial in Colorado?
- 5. When do I file a motion for a new trial in Colorado?
- 6. What happens if my motion for a new trial is granted?
- 7. What happens if my motion for a new trial is denied?
- 8. Do I have to file a motion for a new trial if I am convicted in Colorado?
- 9. If I am an immigrant, will a motion for a new trial help me stay in the U.S.?
Also see our articles on motions for reconsideration in Colorado and post-conviction relief in Colorado.
A motion for a new trial is when a defendant who is convicted at trial requests that the trial 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 of a criminal conviction in Colorado. An appeal is when the defendant asks a higher court to review the trial and possibly remand it back to the district court level. 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.
Everyone who is convicted at trial in Colorado may file a motion for a new trial. In practice, trial judges rarely grant a defendant’s motion for a retrial.
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
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 pursuant to the 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 / Abuse of discretion
- Unfair or improper jury instructions
- Juror misconduct or bias5
- Ineffective assistance of counsel
- Improper closing arguments by prosecutors
- Insufficient evidence, conflicting evidence and/or erroneous admission of evidence to support the verdict as a matter of law
- 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:
- the evidence was discovered after the trial;
- the defendant and his/her counsel exercised diligence to discover all possible evidence favorable to the defendant prior to and during the trial;
- the newly discovered evidence is material to the issues involved, and not merely cumulative or impeaching; and
- 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
As with most court motions, a motion for a new trial must be in writing. Such motions 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
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 additional time during that 14-day time frame. Note that these motions may be filed before the entry of judgment.9
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
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 to Colorado’s appellate court and Colorado Supreme Court and pursue other post-conviction options.11
No, but defendants who do not file a timely motion for a new trial will probably lose the option later to file a federal habeas corpus petition in United States federal court in Denver.12
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 of being acquitted. And if they are acquitted, they should no longer be deportable. Learn more about the criminal defense of immigrants in Colorado.
Call a Colorado criminal defense attorney…
If you have been convicted at trial in Colorado, contact our Denver criminal defense attorneys. Our law firm may be able to get you a new trial and fight for a full acquittal. Our first time meeting with you is always a free consultation, no matter the subject matter. Effective July, 2020, we offer payment plans discount rates for the COVID 19 pandemic.
Arrested in Nevada? See our article on motions for a new trial in Nevada.
- CO ST RCRP (Colorado Rules of Criminal Procedure) Rule 33. (Compare to Colorado Rules of Civil Procedure (CRCP) 59).
- See id.
- CO ST RCRP Rule 33(c).
- 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[.]”)
- See id.
- People v. Estep, 799 P.2d 405 (Colo.App.1990).
- CO ST RCRP Rule 33(c).
- CO ST RCRP Rule 33(a).
- CO ST RCRP Rule 33(c).
- CO ST RCRP Rule 33(d).
- CO ST RCRP Rule 33. There are several appellate rules tha appellants need to follow to get an appellate review, including filing a notice of appeal. Note that it is rare for the U.S. Supreme Court to grant cert on cases.
- 28 U.S.C. § 2254(b) (1996); Tanksley v. Warden of State Penitentiary, (10th Cir. 1970) 429 F.2d 1308.