When can fresh evidence be used in a criminal appeal?

There are occasions when certain evidence is not heard during a trial. This might happen if the evidence has only just been discovered, or trial counsel or the court mistakenly overlooked the evidence. Yet this evidence could be exactly what you need to prove your innocence, or to persuade the court to show leniency during sentencing.

Appeal courts can be reluctant to allow fresh evidence. There is a test for admitting fresh evidence at appeal. This means that the evidence must:

• Not be admitted if, by due diligence, it could have been included at trial (although this principle is stricter in civil cases than in criminal cases)
• Be relevant, in that it is a potentially decisive issue
• Be credible
• Be expected to have an impact on the result

Getting fresh evidence admitted on appeal

When you ask us to handle your criminal appeal, we will examine whether fresh evidence has materialised which could undermine the court’s decision. If so, we will submit an appeal, arguing that fresh evidence should be admitted in your case. What happens next depends on whether you have made a conviction appeal or a sentence appeal.

If you make a conviction appeal and the appeal court agrees that fresh evidence should be admitted, then the verdict must be set aside. There will be a re-trial, during which the new evidence will be put to the judge or jury. This might call into question the reliability of a key Crown witness, or place you somewhere other than the crime scene. This could completely alter the final outcome, resulting in a not guilty verdict being passed.

If you make a sentence appeal and the appeal court agrees that fresh evidence should be admitted, then the appeal court may change the sentencing order. Your sentence could be reduced or thrown out altogether.

Vancouver appeals lawyers

Fresh evidence can have a significant bearing on your case, but it must be presented to the appeal court in the correct way. Otherwise, your appeal could be denied. The lawyers at Mickelson & Whysall Law Corporation are highly experienced in criminal appeals and know how to manage fresh evidence. We will prove that the evidence meets the legal test required by the courts, leaving no doubt that it should be heard.

If you have been found guilty of a criminal offence, contact us now to discuss your options. If we believe your case could be advanced through fresh evidence, we will pursue an appeal on your behalf, applying our expertise to reach a favourable outcome.