A Trial Judge has the discretion to grant a new trial at any time it appears an injustice was done. After a Defendant has been tried and convicted, he may have grounds to move the court for a new trial for many reasons.

Generally, the common causes for which a new trial may be granted fall into two categories:

  • One category includes occurrences at trial or in the jury’s verdict which demonstrates that an injustice has been done; and
  • The other category is the discovery of new evidence after the trial, or other developments occurring after the trial or conviction, which demonstrates manifest injustice.

The following are some examples of scenarios in which a Defendant may move for a new trial but this is not a complete list but rather some notable examples:

Occurrences at Trial

The first category of cases warranting a new trial are those involving the trial itself, such as accidents, mistakes, or misfortunes in the conduct of the trial, which makes a new trial necessary in order to guard against a failure of justice. These include:

  • Alleged errors in preliminary proceedings;
  • All substantial errors which were committed at the trial and which materially affected the result;
  • Alleged errors and irregularities in the course of the trial including the summonsing, impaneling, and the oath or jurors, or the alleged misconduct of jurors;
  • The verdict was against the weight of the evidence.

Newly Discovered Evidence

patrick noonan in courtpatrick noonan in court

Criminal defense attorney, Patrick Noonan, in Brockton Superior Court during a trial in which, Richard R. Parker, a man who worked for the Boston Fire Department for nearly 26 years and was also a 9/11 responder, faced multiple charges including a charge of assault to murder his wife, Kimberly Boleza Parker, from an alleged incident in 2011. (Marc Vasconcellos/The Enterprise)

Under Rule 30 of the Massachusetts Rules of Criminal Procedure, a Defendant is entitled to a New Trial based on newly discovered evidence if he can prove two things: 1) the evidence was unknown to, and not reasonably discoverable by, either trial counsel or the Defendant prior to trial, and 2) the evidence casts real doubt on the justice of the conviction.


  • Right to Forensic and Scientific Analysis: Incarcerated convicts, claiming to be factually innocent, have a post-conviction, un-waivable, statutory right to file a motion requesting forensic or scientific analysis in support of their innocence claim. See G.L. c. 278A, §2.
  • DNA Evidence: It is a common scenario where a Defendant will be convicted based on DNA evidence. After a trial and conviction, the Defendant can have evidence independently tested or re-examined. Subsequent testing of evidence can rule out the Defendant as the perpetrator, point to another suspect, or completely exonerate the Defendant. We’ve all seen news reports where a Defendant, who has been incarcerated for decades or a lifetime, was exonerated based on newly tested DNA evidence showing that he did not commit the crime.
  • Junk Science: Sometimes, the science relied upon by the Commonwealth to prove its case against the Defendant was later determined to be junk science or no longer accepted as valid science in the scientific or legal community.

For example, George Perrot, a Springfield man was convicted and serving a life sentence for allegedly raping an elderly woman back in 1985. The prosecution’s case was very weak. In fact, the victim testified that Perrot looked nothing like her attacker. The critical piece of evidence that convicted Perrot was a single strand of hair found at the rape scene. An FBI expert testified that the strand of hair found at the rape scene was a match for Perrot. Despite the utter lack of any corroborative evidence, the jury convicted Perrot based entirely on the FBI expert’s testimony regarding the hair match. In granting Perrot a new trial, the judge found that the testimony of the FBI expert was based on fatally flawed forensic science. In fact, in 2013, the FBI admitted that the foundations of “hair comparison evidence” were scientifically invalid.

  • New Science: Sometimes, a new trial is granted based on new developments in science that was not known or made available to the defense.

For example, Rosario, was convicted of eight counts of second-degree murder for allegedly burning down a dwelling in Lowell, which killed the people inside. At his trial, the Commonwealth’s arson experts testified that the fire was caused by flammable liquids, specifically Molotov cocktails. Rosario was granted a new trial based on new fire science, which provided an alternate theory as to the cause of the fire.

  • Drug Lab Scandal: On April 18, 2017, state prosecutors recommended that more than 21,000 drug convictions be dismissed because they were tainted by Annie Dookhan, a former state drug lab chemist, who pled guilty to obstruction of justice, perjury, and tampering with evidence. During her employment as a chemist for the State Drug Lab, Ms. Dookhan admitted, among other things, that she falsified drug tests and would list all samples as positive for illegal drugs when she only tested a fraction of a batch of samples. If you were convicted of a drug offense, you may be entitled to have your conviction vacated if the alleged drugs in your case were tested by Annie Dookhan.
  • Breathalyzer Test Results in Drunk Driving Cases: When a Defendant, arrested for drunk driving, submits to a Breathalyzer Test and blows a 0.08% or above, the Defendant is oftentimes forced to plead guilty or admit to sufficient facts because that breath test result is per se evidence of intoxication and very difficult to overcome at trial. Many defendants have pled guilty because they were led to believe that their breath test result was scientifically reliable and would be admissible at trial. However, in Commonwealth Ananias, a judge ruled that a particular Breathalyzer test device did not produce scientifically reliable blood-alcohol-content results from June 2013 to September 2014. A Defendant, who submitted to a breath test on this particular machine, between June 2013 and September 2014, has pled guilty to an OUI based on his belief that the results were scientifically reliable and admissible at his trial, may have grounds to vacate his guilty plea and move for a new trial.
  • Victim or Witness’s Recantation: Sometimes, a Defendant’s conviction will be based on the testimony of the victim or a key prosecution witness. If the victim or key prosecution witness later recants his / her testimony, the Defendant has grounds to move for a new trial. The key issues for the judge to consider are: the credibility of the recantation, the motivation for the recantation, the delay in the recantation, whether the recantation will affect the witness’s new testimony, whether the recantation effected the result of the trial, and whether there was sufficient evidence (apart from the recantation) to convict the Defendant.

Evidence that is Withheld or is Not Disclosed by Commonwealth

The remedy for the suppression of exculpatory evidence by the prosecution is a new trial. Exculpatory evidence is any evidence that is favorable to the defendant.

When a Defendant claims a new trial based upon the failure of the prosecution to disclose specifically requested exculpatory evidence, the Defendant bears the burden of demonstrating: 1) the evidence was exculpatory, 2) the evidence was material, and 3) the withholding of evidence prejudiced the Defendant.

Where the Defendant did not specifically request exculpatory evidence, he is entitled to a new trial only if he can prove that there has been a substantial miscarriage of justice.


  • Prosecution failed to disclose exculpatory statements.
  • Prosecution failed to disclose exculpatory physical evidence.
  • Prosecution failed to disclose exculpatory forensic evidence.
  • Prosecution failed to disclose exculpatory police reports.
  • Prosecution failed to disclose exculpatory evidence in the possession of other government agencies.
  • Prosecution failed to disclose exculpatory evidence of a third party culpri.
  • Prosecution failed to disclose exculpatory evidence greatly affecting the credibility of a key prosecution witness.
  • Prosecution failed to disclose exculpatory evidence regarding an agreement or arrangement it had with a prosecution witness.

Ineffective Assistance of Counsel

Under Rule 30 of the Massachusetts Rules of Criminal Procedure, a Defendant is entitled to a New Trial if his or her trial lawyer did a poor job at trial. You can prove your lawyer was ineffective if you can establish two things: 1) Serious incompetence, inefficiency, or inattentiveness falling measurably below that which might be expected from an ordinary, fallible lawyer, and 2) that this failing likely deprived the defendant of an otherwise available, substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89 (1974)


  • The Attorney did not conduct an investigation or failed to conduct an adequate investigation.
  • Witnesses were not interviewed.
  • Evidence available to the defense was not considered, not investigated, not used effectively, or not used at all.
  • The Attorney failed to consult with an expert or hire an expert.
  • The Attorney failed to object to clearly inadmissible evidence.

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If you believe you, or a loved one may have the right to a new trial, call our Massachusetts criminal defense attorneys today at (508) 588-0422 for your free legal consultation.

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