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1Fix the driver behind crashes, sound loss and screen glitches2Repair Windows errors before they cause bigger problems3Scan for outdated or missing drivers - takes under a minuteIf important evidence goes unreviewed after a criminal conviction, the conviction does not automatically change. A defendant generally must raise the issue through a procedure still available, and a court or other authorized decision-maker must decide whether the evidence meets the applicable legal standard. Deadlines and available routes depend on whether the case is in state or federal court, its procedural stage, and what “not reviewed” means.
What does it mean for evidence not to be reviewed?
The phrase can describe different situations: investigators never examined evidence, the prosecution did not disclose it, a party did not present it at trial, the judge rejected it, or it was discovered only after conviction. Those circumstances can involve different legal duties and procedures; there is no single remedy for every kind of non-review.
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For a post-conviction request, the key questions include what the evidence is, when it became known, why it was not available earlier, how it relates to the conviction, and which filing route and deadline apply. Evidence that was known before trial but not presented is not necessarily treated as newly discovered evidence.
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Can new evidence reopen a criminal case?
A court may consider a properly filed request for a new trial or another form of post-conviction relief, but a request does not guarantee that the case will be reopened or the conviction overturned. The evidence must satisfy the relevant legal test, and the filing must comply with the applicable procedure and deadline.
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In federal court, Rule 33 says that, “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Federal Rule of Criminal Procedure 33 makes relief dependent on the court’s determination; evidence being overlooked does not itself vacate a judgment.
How federal Rule 33 works
Rule 33 applies to federal criminal cases, not automatically to state convictions. It sets different deadlines depending on the basis for a new-trial motion:
| Ground for motion | Federal Rule 33 deadline |
|---|---|
| Newly discovered evidence | Within three years after the verdict or finding of guilty. |
| Other grounds | Within 14 days after the verdict or finding of guilty. |
If an appeal is pending, the district court may grant a newly-discovered-evidence motion only after the appellate court remands the case. The applicable rule and procedural posture matter; these federal time limits should not be assumed to govern a state case.
What federal courts generally look for
A DOJ-filed brief describes common federal criteria for a new-trial motion based on newly discovered evidence. Generally, the evidence must be genuinely new and unknown at trial, not reasonably discoverable earlier through due diligence, material, more than merely cumulative or impeaching, and likely to produce an acquittal. Courts and circuits may state the test differently, and admissibility and the particular claim can matter. The brief is an illustration of federal practice, not a substitute for controlling authority in a particular case. DOJ brief in Person v. United States, No. 13-641.
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The distinction between new evidence and newly available evidence can be important. The DOJ brief discusses a case in which testimony became available after trial, but its substance was already known to the defendant beforehand; that did not make it newly discovered evidence for the motion. A claim that trial counsel failed to present evidence already known may raise a different issue and follow a different procedural route.
Why state cases need a separate deadline check
There is no single deadline for newly discovered evidence across all U.S. criminal cases. In Herrera v. Collins, the Supreme Court discussed variation among state rules while considering a Texas prisoner’s request years after conviction. The opinion also discussed clemency under Texas law as a possible avenue after judicial process was exhausted; it does not establish current Texas procedure or a remedy available in another state. Herrera v. Collins, 506 U.S. 390 (1993).
Other post-conviction claims may have their own requirements. For example, the DOJ brief’s case discussion noted that ineffective-assistance issues might be raised through a timely motion under 28 U.S.C. § 2255. That is a federal-prisoner example, not a universal deadline or route for every conviction. A current, jurisdiction-specific rule is necessary to assess an actual case.
What to establish when asking for review
A person assessing a possible filing should organize the facts that determine which procedure may apply:
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- Jurisdiction: identify whether the conviction is from federal or state court, and which state if applicable.
- Stage: establish whether the case is at trial, on direct appeal, or in post-conviction proceedings.
- Timeline: record when the evidence was discovered, whether its substance was known earlier, and whether an appeal is pending.
- Evidence and significance: explain what the evidence shows, whether it may be admissible, and how it could affect the result.
- Procedure and deadline: confirm the governing motion or petition, its legal test, and the filing deadline before choosing a route.
Prosecutors may also have separate obligations in some circumstances. Cornell LII’s Wex summary describes an ABA model-rule provision concerning a prosecutor who learns of new, credible, material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense. That is a summary of a model rule, not a statement that the same binding duty applies to every prosecutor in every jurisdiction. Cornell LII, “After-discovered evidence”.
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