Within 2 years of initial action by the CA. B. Requirements:
- Evidence discovered after trial or fraud on the court.
- Evidence not such that it would have been discovered by petitioner at time of trial in exercise of due diligence.
- Newly discovered evidence, if considered by a court-martial in light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused.
Approval authority for a New Trial
United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011). Petition for a new trial based upon misconduct by USACIL serology analyst. The CAAF cited to the three requirements above and held that this evidence would not have resulted in a substantially more favorable result for the appellant. Several of the judges would also have found this request for a new trial time barred under Article 73, UCMJ, which requires a petition to be filed within two years of CA action. In this case, the request came in four years after the two year window (due to the late discovery of the serology analyst misconduct).(National Institute of Military Justice)
United States v. Hull, 70 M.J. 145 (C.A.A.F. 2011). SJA advised the convening authority of the three requirements above in the addendum to the SJAR after the defense post-trial submissions contained an unsworn statement from a witness that could potentially provide evidence that the victim lied. However, the SJA also advised the convening authority that a petition for a new trial should not be granted since the witness was uncooperative and refused to participate, thus impacting her credibility. The CAAF held that this advice was not erroneous and that “requests for a new trial, and thus rehearings and re-openings of trial proceedings, are generally disfavored.”