What is the scope of review of a motion for a new trial based on newly discovered evidence?

The scope of review of the denial of a motion for a new trial based on newly discovered evidence is narrow. Once the trial court has made a factual determination as to whether there has been suppression or perjury, for example the appellate court may not intervene except "when the findings of fact are wholly unsupported by evidence; * * * it should never do so where it does not clearly appear that the findings are not supported by any evidence." United States v. Johnson, 327 U.S. 106, 111-112, 66 S.Ct. 464, 466, 90 L.Ed. 562 (1946).

The generally held essentials for a new trial based on newly discovered evidence are the following: (1) the evidence must have been discovered since the trial; (2) it must be material to the

[416 F.2d 577]

factual issues at the trial, and not merely cumulative nor impeaching the character or credit of a witness; (3) it must be of such a nature that it would probably produce a different verdict in the event of a retrial. United States v. Costello, 255 F.2d 876 (2 Cir.), cert. denied 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958).

[416 F.2d 577]

Where the conviction is shown to be based even in part upon perjured testimony, however, a court will not stop to inquire as to the precise effect of the perjury, but will order a new trial if without the perjury the jury might not have convicted. Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956); Larrison v. United States, 24 F.2d 82 (7 Cir. 1928).