Key Takeaways

  • A retrial refers to repeating a trial after the original trial has concluded, often due to a legal error or mistrial.
  • A new trial is typically granted when procedural errors, misconduct, or newly discovered evidence may have affected the original verdict.
  • Retrials may occur in both civil and criminal cases, though constitutional protections like double jeopardy limit retrials after acquittals in criminal proceedings.
  • Common reasons for a new trial include jury misconduct, improper jury instructions, admission of inadmissible evidence, or unfair behavior by parties involved.
  • Both new trials and retrials aim to ensure fairness, justice, and correct application of the law.

Legal Definition of New Trial and Retrial

A retrial is a completed trial that has been set aside and tried again from scratch as opposed to a mistrial which is terminated prior to its conclusion and then tried again. A retrial may also be a reexamination of an issue in fact before a court and jury, which had been tried at least once before the same court and a jury.

A new trial is warranted on the ground of attorney misconduct during the trial where the "flavor of misconduct sufficiently permeates an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict." Kehr, 736 F.2d at 1286 (quoting Standard Oil Co. of California v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965)). Where misconduct permeates the proceeding, the jury is "necessarily prejudiced." Id. "Constant objections are certainly not required, as they could antagonize the jury."

Key Differences Between Retrial and New Trial

While the terms retrial and new trial are sometimes used interchangeably, they have distinct legal meanings:

  • Retrial: Refers to conducting a trial again after the previous trial has been concluded, either by a verdict or dismissal, often because of a mistrial, jury deadlock, or appellate reversal.
  • New Trial: Typically requested by a party immediately following a trial's conclusion, based on grounds such as procedural errors, juror misconduct, or newly discovered evidence that could impact the verdict.

A retrial may be ordered by an appellate court, while a motion for a new trial is usually filed in the trial court where the original case was heard.

When Is a Retrial Required?

A retrial may be required in cases where the counsel repeatedly and impermissibly elicited testimony and made reference to matters previously ruled inadmissible "with the sole purpose of bringing to the jury something it should not have heard." County of Maricopa v. Maberry, 555 F.2d 207, 219 (9th Cir. 1977).

Double Jeopardy and Limitations on Retrial in Criminal Cases

The Fifth Amendment of the U.S. Constitution provides protection against double jeopardy, preventing a defendant from being tried twice for the same offense after acquittal. However, retrials may still be permissible in certain circumstances, including:

  • Hung jury (mistrial): When the jury cannot reach a unanimous decision, allowing the prosecution to retry the case.
  • Reversal on appeal: When a conviction is overturned due to legal error, the prosecution may retry the defendant unless the reversal was based on insufficiency of evidence.
  • Juror misconduct or external influence: If outside interference compromises the integrity of the original trial.

In civil cases, these constitutional protections do not apply, and retrials can occur under broader circumstances.

When Is a New Trial Granted?

Code of Civil Procedure section 657 provides in part: A new trial shall not be granted upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury should have reached a different verdict or decision. Accordingly, in deciding whether to grant a new trial the trial court must independently weigh the evidence and assess whether it sufficiently supports the jury's verdict. As a corollary to this rule, the trial court's ruling is entitled to great weight on appeal." Fortman v. Hemco Inc. (1989) 211 Cal.App.3d 241, 257-258.

The origin of the practice of granting new trials is concealed in the night of time. Formerly new trials could be obtained only with the greatest difficulties, but by the modern practice they are liberally granted in furtherance of justice.

Standards Courts Use to Evaluate New Trial Motions

Courts assess several factors when considering a motion for a new trial, including:

  • Whether the error was prejudicial and likely affected the outcome.
  • Whether the error was properly preserved by objection at trial (unless it constituted plain error).
  • The materiality and impact of any newly discovered evidence.
  • If misconduct by counsel or jury was severe enough to undermine the fairness of the trial.

Judges are granted discretion in weighing these factors to determine whether granting a new trial serves the interests of justice.

Reasons For Granting New Trials

The reasons for granting new trials are numerous and may be classed as matters which arose before and in the course of trial, including:

  • Want of due notice. Justice requires that the defendant should have sufficient notice of the time and place of trial; and the want of it, unless it has been waived by an appearance, and making defense, will, in general, be sufficient to entitle the defendant to a new trial. But the insufficiency of the notice must have been calculated reasonably to mislead the defendant.
  • The irregular impaneling of the jury; for example, if a person not duly qualified to serve be sworn or if a juror not regularly summoned and returned personate another. In Pennsylvania, by statutory, provision, going on to trial will cure the defect, both in civil and criminal cases.
  • The admission of illegal testimony.
  • The rejection of legal testimony. But a new trial will not be granted for the rejection of a witness on the supposed ground of incompetency, when another witness establishes the same fact, and it is not disputed by the other side.
  • The misdirection of the judge.
  • The acts of the prevailing party, their agents or counsel. For example, when papers not previously submitted, are surreptitiously handed to the jury, being material on the point in issue. Or if the party, or one on his behalf, directly approach a juror on the subject of the trial. But if the other party is aware of such attempts and he neglects to correct them when in his power, this will not be a sufficient reason for granting a new trial. When indirect measures have been resorted to prejudice the jury or tricks practiced or disingenuous attempts to suppress or stifle evidence or thwart the proceedings or to obtain an unconscientious advantage or to mislead the court and jury they will be defeated by granting a new trial.
  • The misconduct of the jury, as if they acted in disregard of their oaths drinking spirituous liquors, after being charged with the cause or resorting to artifice to get rid of their confinement and such like causes will avoid a verdict.
  • Cases in which the verdict is improper, because it is either void, against law, against evidence or the damages are excessive.
    • When the verdict is contrary to the record or it finds a matter entirely out of the issue or finds only a part of the issue or when it is uncertain a new trial will be granted.
    • When the verdict is clearly against law, and injustice has been done, it will be set aside.
    • And so will a verdict be set aside if given clearly against evidence, and the presiding judge is dissatisfied.
    • When the damages are excessive, and appear to have been given in consequence of prejudice, rather, than as an act of deliberate judgment.
  • Cases in which the party was deprived of their evidence by accident or because they were not aware of it.
  • The non-attendance of witnesses, their mistakes, their interests, their infirmities, their bias, their partial or perverted views of facts, their veracity, their turpitude, pass in review, and in proportion as they bear upon the merits avoid or confirm the verdict.
  • The absence of a material piece of testimony or the non-attendance of witnesses, contrary to reasonable expectation, and reasonably accounted for, will induce the court to set aside the verdict, and grant a new trial if the witness absent themselves without the party's knowledge after the cause is called on or is suddenly taken sick and the like.

The court will also grant a new trial when the losing party has discovered material evidence since the trial, which would probably produce, a different result; this evidence must be accompanied by proof of previous diligence to procure it. To succeed, the applicant must show four things:

  • The names of the new witnesses discovered.
  • That the applicant has been diligent in preparing, their case for trial.
  • That the new facts were discovered after the trial and are important.
  • That the evidence discovered will tend to prove facts which were not directly in, issued during the trial, or were not then known and investigated by proof.

New trials may be granted in criminal as well as in civil cases when the defendant is convicted, even of the highest offenses. But when the defendant is acquitted, the humane influence of the law, in cases of felony, mingling justice with mercy, does not permit a new trial. In cases of misdemeanor, after conviction a new trial may be granted in order to fulfill the purpose of substantial justice; yet, there are no instances of new trials after acquittal unless in cases where the defendant has procured his acquittal by unfair practices.

Appealing a Denial of a New Trial Motion

If a motion for a new trial is denied, the losing party may appeal the decision. However, appellate courts typically show deference to the trial court’s discretion, intervening only if the denial reflects an abuse of discretion. The appellate review will examine whether:

  • The trial court correctly applied the law.
  • The decision was reasonable based on the evidence.
  • There was any clear error in the judge’s assessment of fairness.

The standard of review makes it crucial for the moving party to present compelling and well-supported reasons for requesting a new trial.

Frequently Asked Questions

  1. What is the difference between a retrial and a new trial?
    A retrial involves trying the case again after a previous trial has concluded, often after a mistrial or appellate reversal. A new trial is granted by the trial court after the original trial, typically due to errors or misconduct affecting the verdict.
  2. Can a retrial happen after an acquittal?
    In criminal cases, double jeopardy protections generally prevent retrials after an acquittal. However, retrials may occur if there was a mistrial, hung jury, or appellate reversal not based on insufficiency of evidence.
  3. What are common reasons for a new trial?
    Common reasons include juror misconduct, improper admission or exclusion of evidence, misdirection by the judge, attorney misconduct, and discovery of new evidence that could significantly impact the outcome.
  4. How does newly discovered evidence lead to a new trial?
    A party must show that the evidence was discovered after the trial, could not have been found earlier with due diligence, and would likely change the result if presented in a new trial.
  5. Who decides whether to grant a new trial or retrial?
    A trial court typically decides whether to grant a new trial based on a motion from one of the parties. Retrials can also be ordered by an appellate court if it finds significant errors in the original proceedings.

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