Motion for a New Trial in California (Penal Code 1181)


Penal Code 1181 is the California statute that allows a defendant convicted of a crime to seek a new trial. This motion for a new trial is a defendant's request to have a new jury hear and redecide his or her case. If the motion is granted, the accused is given a new trial as if no previous trial had taken place.

Our California criminal defense attorneys will discuss the following in this article:

judge inside a courtroom hearing a Penal Code 1118 motion for a new trial
A motion for a new criminal trial is a defendant’s request to have a new jury hear and decide his case.

1. What are the grounds to make a motion for a new trial?

There are six primary grounds for a defendant to make this motion. These are:

  1. jury misconduct,
  2. prosecutorial misconduct,
  3. an error of law by the court,
  4. insufficient evidence,
  5. newly discovered evidence, and
  6. loss or destruction of trial record or transcript.

1.1. Jury misconduct

Jury misconduct is when a jury does any of the following:

  • receives outside information,
  • intentionally misleads the attorneys during jury selection,
  • participates in any form of jury misconduct, or
  • engages in improper deliberations.

An example of improper deliberations is when the jury discusses that a defendant did not testify.

Motion for new trials brought because of jury misconduct will be:

  1. granted if the misconduct prejudiced the defendant, or
  2. denied if there was no prejudice.1

Prejudice” means that the misconduct unfairly harmed or biased the defendant.

1.2. Prosecutorial misconduct

Prosecutorial misconduct refers to the use of “deceptive or reprehensible methods to influence the jury.”2

Examples include:

  • commenting on inadmissible evidence,3
  • intentionally eliciting inadmissible and/or prejudicial answers from witnesses,4
  • conducting an improper cross-examination of the defendant or other defense witness,5 and
  • appeals to passion or prejudice.6

As with jury misconduct, prosecutorial misconduct will only lead to new trials if it prejudiced the defendant.

1.3. An error of law by the court

An error of law by the court happens when the judge:

  1. misdirects the jury on a matter of law, or
  2. makes a wrong legal ruling.

A judge will grant a motion brought under this ground if the error impacted one of the defendant's substantial rights.

1.4. Insufficient evidence

This ground applies to the situation when:

  1. a jury finds a defendant guilty, but
  2. the defendant believes there was insufficient evidence to support guilt.

A judge will grant a motion for a new trial if he agrees.

Note, though, that if granted:

  • the defendant does not get a fresh trial, but
  • he receives a full dismissal of the charges against him.

A dismissal is awarded since “double jeopardy” prevents the prosecution from retrying the case.

1.5. Newly discovered evidence

A defendant may be granted a new trial if:

  • following his trial,
  • he discovered evidence that would probably result in a more favorable case outcome.

A judge will consider the following factors in deciding whether a more favorable outcome would result:

  1. whether the evidence (and not just its relevance)is new,
  2. whether the evidence is cumulative of what has previously been admitted,
  3. whether the evidence might result in a different outcome during a retrial, and
  4. whether the defense could have reasonably discovered or produced the evidence at trial.7

1.6. Loss or destruction of trial record or transcript

This ground asserts that the record or transcript of a criminal trial has been lost or destroyed.

The problem with loss or destruction is that a judge cannot properly analyze an appeal if the defendant files one.

Another trial will be granted, based on this ground, if the court agrees that:

  • based on all of the circumstances of the trial,
  • the lost or destroyed portion of the record or transcript is substantial,
  • so that it affects the ability of the court to fully review an appeal or the defendant's ability to perfect his appeal.8

1.7. Other grounds

In addition to the above, the following will result in a fresh trial:

  • ineffective assistance of counsel,9
  • erroneous admission of evidence,10
  • the prosecutor's failure to disclose exculpatory evidence (i.e., evidence favorable to the accused),11 and
  • a material change in the law.12
attorneys negotiating
A motion for a new trial is not the same thing as an appeal. The appellate court does not re-try the case.

2. Is it the same as an appeal?

A motion for a new trial is not the same thing as an appeal.

An appeal is when:

  • a higher court, called an appellate court,
  • reviews a defendant's trial.

During an appeal, a defendant cannot present new evidence. Further, the appellate court does not re-try the case.

Rather, the court examines the record of trial and looks to see if the lower court made any procedural mistakes.

If the appellate court grants a defendant's appeal, then the following may take place:

  • the original decision of the lower court gets reversed,
  • a new trial takes place, or
  • the case is sent back to the lower court and that court corrects any mistakes made.

The grounds for an appeal are:

  • prejudicial error,
  • a lack of substantive evidence, and
  • ineffective assistance of counsel.

3. When does a defendant bring the motion?

A defendant must file a motion for another trial before either:

  1. the defendant's sentencing hearing begins, or
  2. the judge grants probation (if applicable).

Per Penal Code 1191, the judge must rule on the motion within either:

  1. 20 days after a guilty verdict, or
  2. 30 days after the verdict if the defendant needs more time to perfect his motion.13

4. What happens if it is granted?

A judge granting a motion for a new trial means that a fresh trial takes place. The trial is conducted with a new jury.

Note that, if granted, and a defendant is in custody, he may ask to be released on bail per California's bail laws.

5. What happens if it is denied?

A denial of a motion means that the initial guilty verdict stands. A defendant though can still win a fresh trial if he is successful on appealing his case.

Also note that there are times when a court, even though it does not order another trial, may:

  1. modify the defendant's verdict to a lesser included offense of the convicted charge, or
  2. reduce the degree of the charge.14

6. Can there be motions for a new trial in civil cases?

Yes. There are seven primary grounds to make this motion. These are:

  1. Insufficient evidence to justify the verdict or decision.
  2. Newly discovered evidence. This evidence is material. And it could not have been - with reasonable diligence -  produced at the trial.
  3. Damages for the plaintiff that are excessive or inadequate.
  4. Jury misconduct. (A juror can provide an affidavit to help prove misconduct.)
  5. The trial had an "error in law."
  6. The verdict is against the law.
  7. The trial was not fair due to:
    1. Abuse of discretion, or
    2. Proceeding irregularities of the court, adverse party, or jury

The party seeking another trial first must file a "notice of intention to move for a new trial." This must occur either:

  • After the verdict but before the entry of judgment; or
  • Within 15 days after parties are notified of or served with the entry of judgment - or within 180 days of the entry of judgment (whichever is earlier)

Then the party has 10 days to serve:

  • Supporting affidavits, and
  • A memorandum of points and authorities with statutory and case citations

(A court can stipulate to extend this 10-day time limit.) Finally, the court has 60 days after the "notice of intention" to rule whether to grant or deny another trial.

Judges deny motions for new trials more often than not. But if granted, they can be a valuable opportunity to reexamine evidence and issues. In this sense, the court serves as a "thirteenth juror."15

Civil trials commonly involve the following issues:

  • Breach of contract
  • Eviction
  • Personal injury
  • Divorce or child custody/support
  • Wrongful termination

For additional help...

california criminal defense attorneys
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For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

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