Admit or Acquit: Why Circuit Courts Should Admit All New Evidence


To succeed on a claim of actual innocence, a defendant needs to introduce new evidence that was not available at the time of trial. When a defendant wants to introduce new evidence to appeal a federal court conviction, the defendant must undergo an arduous trial. Because an appeal is not a retrial, appellate courts will review the lower court’s record. Defendants who move for a new trial can succeed when new evidence is available which can prove the defendant’s innocence. The process is further complicated because of the circuit court split over the definition of “new evidence.” The Tenth, Sixth, Seventh, and Ninth Circuits are willing to look at evidence that was not presented before the appeal. However, the Third, Fifth, and Eighth Circuits are only willing to review new evidence that was not yet available at the trial court. The circuit split is problematic because criminal defendants could face jurisdictional inequality based on which appellate court they appeal to.

Even when new evidence is available after trial, time constraints can limit what new evidence is sufficient to file for a new trial. To file for a new trial, new evidence must be filed within three years under Federal Rule of Civil Procedure 33(b)(1). Criminal defendants face an uphill battle to overturn their convictions because even when new evidence is found, defendants have to ensure that they avoid running out the period during which new evidence is admissible. 

A recent case demonstrates how the circuit court split favors defendants who appeal to the Tenth, Sixth, Seventh, and Ninth Circuits. Fontenot v. Crow is a Tenth Circuit case where new evidence created reasonable doubt for the defendant’s conviction on a charge of kidnapping, contradicting trial evidence by establishing that . The Tenth Circuit found that the evidence against the defendant was “extremely weak.” In Fontenot, the evidence against the defendant was based on details that were found to have discrepancies. For instance, the defendant’s height was several inches off from what the “key witness” had described. The physical description of the defendant was also inaccurate, since the witness alleged that the suspect had “sandy brown hair” but the defendant had dark or dark brown hair. The Tenth Circuit affirmed the district court’s grant of habeas relief and found that the defendant proved. When the defendant produces compelling new evidence, like in Fontenot, it is in the interest of appellate courts to grant a new trial as a remedy under Federal Rule of Appellate Procedure 10(e). When a defendant produces new evidence after trial, appellate courts would use their authority within Federal Rule of Appellate Procedure 10(e) and clarify the rift as to when appellate courts can consider evidence not presented at a trial court

The Tenth Circuit’s broad standard permitted the defendant in Fontenot to introduce evidence that exposed discrepancies in the State’s case. However, defendants who attempt to succeed on an actual innocence claim will face an uphill battle to challenge their convictions when new evidence is not able to be introduced without a showing of due diligence. In Kidd v. Norman, the Eighth Circuit denied habeas relief for the defendant because the defendant did not produce new evidence that was “.” On appeal, the defendant in Kidd attempted to introduce evidence in the form of testimony from his co-defendant Marcus Merrill. At the district court level, Merrill’s testimony was deemed unreliable because Merrill had hoped to use newly formed testimony to reduce his sentence. The Eighth Circuit rejected Kidd’s attempt to introduce new evidence because the Court found that Merrill’s testimony as evidence was available at trial and that Merrill was unreliable. 

In Kidd, the Eighth Circuit deliberated and reviewed the standards as to which other Circuit Courts permit new evidence to support an actual innocence claim. The Eighth Circuit found that issues with the Seventh and Ninth Circuit’s interpretation of new evidence was faulty because there is no basis for which a defendant can claim that his counsel was ineffective. Similarly, the Eighth Circuit explains that the Third Circuit has adopted a modified approach that requires a defendant who suffered from ineffective counsel to introduce evidence of that issue as new evidence. 

The differences in Circuit Court approaches to new evidence appeals demonstrates the outsized effectof poverty in the criminal appeals process and procedure. In civil cases, the issue of proper access to justice is striking: in New York State Courts, 98% of tenants facing eviction were unrepresented in 2013. Even when a client has some funds for an attorney, underrepresentation can still occur. Over just the past year, the Legal Services Corporation found that 86% of low-income Americans will receive limited or no help for civil legal cases because of lack of resources

Evaluating the Standard

The approach by the Tenth, Sixth, Seventh, and Ninth Circuit appears favorable to the defendant because a broad interpretation of new evidence would allow defendants to succeed on actual innocence claims. However, the bar to introduce new evidence is high. In addition, although the bar is high, the Circuit Courts that require due diligence as part of the standard to introduce new evidence can help defendants provide evidence that will help their cause and ultimately reverse a conviction.

 The Third Circuit’s approach requires a showing of , which can further burden a defendant. Although the Eighth Circuit addresses issues of ineffective counsel, the problem can be more widespread than believed. Further, proving ineffective counsel is difficult, and in a 2010 study by the Innocence Project found that only 51 out of 255 cases that were overturned had claims of ineffective counsel. Given that the defendant might not have legal knowledge or access to other counsel to compare effectiveness of counsel, the Third Circuit’s approach is too burdensome on criminal defendants. 

Potential solutions

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) reformed how defendants can file a writ of habeas corpus. 28 U.S. Code § 2255(h)(1), which falls under AEDPA, describes when a Court of Appeals panel can certify a second or successive motion attacking a sentence given new evidence. The provision of the statute does not contain the phrase “due diligence.” An approach that Courts of Appeals could use is to interpret the statute’s language as-is and consider new evidence according to the Tenth, Sixth, Seventh, and Ninth Circuits’ broad interpretation. An upside to this approach is that a plain reading of the statute would remove burdens for criminal appellants. However, a potential downside to strictly reading the statute is the time period  § 2255 which serves as a barrier, especially for defendants who are the victim of ineffective counsel. Even though the statute is broad, the statute of limitations can run when a defendant is convicted and then later finds evidence that could reverse his conviction but failed to do so before the one-year period. 

Another solution would be to amend the statute to conform with the Third Circuit’s approach. The upside to this approach would be that Circuit Courts would deal with far fewer frivolous claims. For instance, Circuit Courts under the strict-reading of AEPDA approach would have to entertain more § 2255 motions, including those that may not be successful on the merits. This could become a burden on an already overwhelmed criminal justice system that has issues with wrongful convictions. In addition, the Third Circuit’s approach would require Circuit Courts to determine and define what ineffective counsel is. To succeed on a claim of ineffective counsel in the Tenth Circuit, a defendant must allege that their counsel’s error resulted in prejudice and contributed to a longer sentence. Because a criminal defendant already faces hurdles in appealing a conviction,  requirements that a defendant prove ineffective counsel would have negative efficiency and cost considerations. Further, Circuit Courts would have to deal with more ineffective counsel claims if the Third Circuit Court’s approach to new evidence was adopted. 


The current court split highlights an issue with how defendants can seek relief by introducing new evidence of their innocence. The Third, Fifth, and Eighth circuit require a showing of due diligence to introduce new evidence which overburdens a defendant who already faces an uphill battle. The most viable solution is to read ​28 U.S. Code § 2255(h)(1)’s plain language and admit all new evidence. 

About the Author: Antonio Ellorin is a second-year law student at Cornell Law School. He grew up in Los Angeles, California, and has a political science degree from the University of Southern California.

Suggested Citation: Antonio Ellorin, Admit or Acquit: Why Circuit Courts Should Admit All New Evidence, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (November 11, 2021), 

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