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Trial Court Finding that Proffered Newly Discovered Evidence “Incredible”

State v. Robert Carnemolla, 229 Wis.2d 648, 600 N.W.2d 236 (Ct. App. 1999)
For Carnemolla: Robert T. Ruth

Issue/Holding: No error found in trial court’s credibility-bound denial of new trial based on newly discovered evidence claim:

In the instant case, the trial court found Sautier to be “incredible.”  It also found “that a jury would [not] find []his testimony credible.”  Under McCallum, this is the equivalent of finding that there is no reasonable probability of a different outcome on retrial.  The circuit court had the opportunity to view Sautier’s demeanor on the stand, weigh evidence of bias or motive to testify falsely, consider past convictions and other impeaching evidence and look for any other indicia of reliability or the lack thereof.  As in all such cases, the trial court is in the best position to evaluate the credibility of his testimony.  See Estate of Dejmal, 95 Wis.2d 141, 151-52, 289 N.W.2d 813, 818 (1980) (deference to the trial court’s credibility assessments is justified because of its superior opportunity to observe the demeanor of witnesses and to gauge the persuasiveness of their testimony).

This is an expansive and therefore problematic reading of State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 (1997) and State v. Kivioja, 225 Wis. 2d 271, 592 N.W.2d 220 (1999). Those cases deal with recantation evidence, which by its very nature is a separate species of newly discovered evidence: the trial court has to decide whether a retraction of an earlier statement is worthy of belief. Even so, Kivioja supports a relatively narrow interpretation, that the trial court is limited to determining whether “a reasonable jury could believe the recantation,” [not that is, whether the trial court believes it]. ¶54. No doubt, a trial court has authority to find a witness “incredible”; but that determination will virtually by definition occur at the margins. If by “incredible,” the court simply means, the trial judge doesn’t believe the witness, then significant problems arise, because the judge will then potentially invade the jury’s province. To make this point concrete, consider this more detailed statement of the test (emphasis supplied), U.S. v. Rouse, 410 F.3d 1005 (8th 2005):

To receive a new trial, the movant must show that “the newly discovered evidence is of such a nature that, in a new trial, [it] would probably produce an acquittal.” United States v. Papajohn, 212 F.3d 1112, 1118 (8th Cir. 2000) (quotation omitted). When the claim of newly discovered evidence is based on a recantation, the district court must first determine whether the recantation is credible. In this regard, “the real question . . . is not whether the district judge believed the recantation, but how likely the district judge thought a jury at a second trial would be to believe it.” Grey Bear, 116 F.3d at 350. Our review of this credibility finding for clear error is extremely deferential. See Grey Bear, 116 F.3d at 351. We review the denial of the new trial motion for a clear abuse of discretion. See Papajohn, 212 F.3d at 1117-18.


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