If you get convicted at a criminal trial in Colorado, you may then file a motion for a new trial. If the judge grants this motion, your original guilty verdict is dismissed and you get an entirely new trial.
If you are an immigrant charged with deportable offenses, a new trial can be your best hope for staying in the U.S.
Judges do not grant a motion for a new trial unless you can show your trial was prejudiced by such mistakes as
- prosecutorial misconduct or judicial errors,
- jury misconduct or bias,
- ineffective assistance of counsel,
- insufficient, omitted, or conflicting evidence, or
- crucial evidence that did not come to light until after the trial.
Short of a new trial, if you are convicted in Colorado, you may also file a motion for reconsideration (Rule 35b) in an effort to have your sentence reduced.
Below our Denver Colorado criminal defense attorneys discuss how you may pursue a motion for a new trial in Colorado following a conviction. 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 getting a new trial?
- 4. How do I bring the motion?
- 5. When do I bring the motion?
- 6. What happens if the motion is granted?
- 7. What happens if the motion is denied?
- 8. Am I required to move for a new trial if I’m convicted?
- 9. If I am an immigrant, will a new trial help me stay in the U.S.?
- Additional reading
Also see our articles on motions for reconsideration in Colorado and post-conviction relief in Colorado.
A motion for a new trial is when you ask the trial court that convicted you to hold a brand new trial. In this motion, you explain why the original trial was so problematic it denied your 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 you ask a higher court to review your trial and possibly remand it back to the district court level. Whereas a motion for a new trial is when you ask the same court that conducted your trial to hold a new one.
For example, a trial in Denver Criminal Court may be appealed to the Colorado Court of Appeals. Though if a trial in Denver Criminal Court results in a guilty verdict, you may file a motion for a new trial in the same Denver Criminal Court.
If you are convicted at trial in Colorado, you may file a motion for a new trial. In practice, trial judges rarely grant motions for a retrial.
Though if you show compelling grounds that you were 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 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. Though 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 you show that the mistakes denied you a fair trial.4
Grounds for a new trial
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 you show:
- the evidence was discovered after the trial;
- you and your counsel exercised diligence to discover all possible evidence favorable to you 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 your 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. The judge also has the discretion to grant or deny the motion without a hearing.8
If there is newly discovered evidence, you may file the motion whenever you discover the evidence. Otherwise, you have 14 days after the verdict to file a motion for a new trial. Though you 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 your original trial is void.
However, note that the prosecution may appeal the judge’s decision. If the appellate court finds for the prosecution, your original verdict will stand.10
Then the verdict stands, but you can appeal the court’s denial of a new trial. In addition, you 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 if you do not file a timely motion for a new trial, you will probably lose the option later to file a federal habeas corpus petition in United States federal court in Denver.12
Maybe. If you are a documented non-citizen in Colorado, you can be removed from the U.S. if you have been convicted of a deportable offense at trial.
Though if you are successful in getting the court to grant you a new trial, you have another chance of being acquitted. Then if you are acquitted, you should no longer be deportable.
Learn more about the criminal defense of immigrants in Colorado.
For more in-depth information, refer to the following scholarly articles:
- New Trial in Federal Criminal Cases – Villanova Law Review.
- Evaluating Trial Justice’s Ruling on a Motion for New Trial – Suffolk University Law Review.
- Critical Stage: Extending the Right to Counsel to the Motion for New Trial Phase – William & Mary Law Review.
- Interpreting the Phrase Newly Discovered Evidence: May Previously Unavailable Exculpatory Testimony Serve as the Basis for a Motion for a New Trial under Rule 33 – Fordham Law Review.
- Rethinking the Standard for New Trial Motions Based upon Recantations as Newly Discovered Evidence – University of Pennsylvania Law Review.
- 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 (Colo.App. 1985) 710 P.2d 1167 (“[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 also People v. Clark (Colo.App. 2022) 512 P.3d 1074.
- See id.
- People v. Estep (Colo.App. 1990) 799 P.2d 405.
- 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.