Motion for a New Trial in California (Penal Code 1181 PC)
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What is a "Motion for a New Trial?" – A Former D.A. explains
Penal Code 1181 PC is the California statute that allows a defendant convicted of a crime to petition for a new trial. A motion for a new trial is a defendant's request to have a new jury hear and redecide the case. If the motion is granted, the accused is given a second chance as if no previous verdict had taken place.
Our California criminal defense attorneys will discuss the following in this article:
1. What are the grounds to make a motion for a new trial?
1.1. Jury misconduct
1.2. Prosecutorial misconduct
1.3. An error of law by the court
1.4. Insufficient evidence
1.5. Newly discovered evidence
1.6. Loss or destruction of record or transcript
1.7. Other grounds
2. Is Penal Code 1181 PC the same as an appeal?
3. When does a defendant bring the motion?
4. What happens if it is granted?
5. What happens if it is denied?
6. Can there be motions for a new trial in civil cases?
A PC 1181 motion is a defendant's request to have a new jury trial.
There are six primary grounds for a defendant to get a grant of a new trial and set aside the verdict in California courts. These are:
jury misconduct,
prosecutorial misconduct,
an error of law by the court,
insufficiency of the evidence,
newly discovered evidence, and
loss or destruction of trial record or transcript.
(Other grounds include inadequate damages, excessive damages, or an accident or surprise that ordinary prudence would not have prevented.)
Misconduct of the jury is when a jury does any of the following:
receives outside information,
intentionally misleads the attorneys during jury selection,
participates in any form of jury misconduct, or
engages in improper deliberations.
An example of improper deliberations is when the jury discusses that a defendant did not testify.
Such motions for new trials brought because of jury misconduct will be:
granted if the misconduct prejudiced the defendant, or
denied if there was no prejudice.1
"Prejudice" means that the misconduct unfairly harmed or biased the defendant, and the jury's verdict should be ignored because the defendant did not get a fair trial.
Prosecutorial misconduct refers to the use of "deceptive or reprehensible methods to influence the jury" in criminal cases.2
Examples of such misconduct include:
commenting on inadmissible evidence,3
intentionally eliciting inadmissible and/or prejudicial answers from witnesses,4
conducting an improper cross-examination of the defendant or other defense witness,5 and
appeals to passion or prejudice.6
As with jury misconduct, prosecutorial misconduct will only lead to new trials – and therefore potential acquittals – if it prejudiced the defendant.
An error of law by the court happens when the trial court judge:
misdirects the jury on a matter of law, or
makes a wrong legal ruling
A trial judge will grant a motion brought under this ground if the significant legal errors impacted one of the defendant's substantial rights.
This ground applies to the situation when:
the jury verdict is guilty, but
the defendant believes there was insufficient weight of the evidence to support guilt.
A judge will grant a PC 1181 motion if he agrees.
Note, though, that if granted:
the defendant does not get another jury, but
he receives a full dismissal of the charges against him.
A dismissal is awarded since "double jeopardy" prevents the prosecution from retrying the case.
A defendant may be granted a second chance if:
following his verdict,
he discovered evidence that would probably result in a more favorable case outcome.
A judge will consider the following factors in deciding whether a more favorable outcome would result:
whether the evidence (and not just its relevance) is new,
whether the evidence is cumulative of what has previously been admitted,
whether the evidence might result in a different outcome during a retrial, and
whether the defense could have reasonably discovered or produced the evidence at trial.7
This ground asserts that the record or transcript of a criminal trial has been lost or destroyed.
The problem with loss or destruction is that a judge cannot properly analyze an appeal if the defendant files one.
Another trial will be granted, based on this ground, if the court agrees that:
based on all of the circumstances of the trial,
the lost or destroyed portion of the record or transcript is substantial,
so that it affects the ability of the court to fully review an appeal or the defendant's ability to perfect his appeal.8
In addition to the above, the following will result in a fresh trial:
ineffective assistance of counsel,9
erroneous admission of evidence,10
wrong findings of fact or conclusions of law,
the prosecutor's failure to disclose exculpatory evidence (i.e., evidence favorable to the accused),11 and
a material change in the law.12
A motion for a fresh trial is not the same thing as an appeal in criminal law.
A motion for a new trial is a different criminal procedure from an appeal.
An appeal is when:
a higher court, called an appellate court (or court of appeals),
reviews a defendant's trial (usually in district court).
Therefore, an appeal is outside of the trial court's jurisdiction. During an appeal, a defendant cannot present new evidence or additional testimony. Further, the appellate court does not re-try the case.
Rather, the court conducts a re-examination of the record and looks to see if the lower court made any procedural mistakes.
If the appellate court grants a defendant's appeal, then the following may take place:
the original decision of the lower court gets reversed,
a new trial takes place, or
the case is sent back to the lower court and that court corrects any mistakes made.
The grounds for an appeal are:
prejudicial error,
a lack of substantive evidence, and
ineffective assistance of counsel.
A defendant must file a motion for another trial with the clerk of the court before either:
the defendant's sentencing hearing begins, or
the judge grants probation (if applicable).
Per Penal Code 1191, the court must rule on the motion within either:
20 days after a guilty verdict, or
30 days after the verdict if the defendant needs more time to perfect his motion.13
The court has broad discretion to grant the motion and may draw reasonable inferences when reweighing the evidence and conducting a re-examination of an issue of fact.
Following a new trial order, a fresh trial is conducted with a new jury.
Note that, if granted, and a defendant is in custody, he may ask to be released on bail per California's bail laws.
A denial of the motion means that the initial guilty verdict stands. But even after a denial of the motion, a defendant though can still win a second chance if he is successful on appealing his case.
Also note that there are times when a court, even though it does not order another trial, may:
modify the defendant's verdict to a lesser included offense of the convicted charge, or
reduce the degree of the charge.14
Yes. There are seven primary grounds to make this motion. These are:
Insufficient evidence to justify the verdict or decision.
Newly discovered evidence. This evidence is material. And it could not have been – with reasonable diligence – produced in court.
Damages for the plaintiff that are excessive or inadequate.
Jury misconduct. (A juror can provide an affidavit to help prove misconduct.)
There was an "error in law."
The verdict is against the law.
The verdict was not fair due to:
Abuse of discretion, or
Proceeding irregularities of the court, an adverse party, or jury
The party seeking another chance (moving party) first must file a "notice of intention to move for a new trial." This must occur either:
After the verdict but before the entry of the judgment; or
Within a 15 day time period after parties are notified of or served with the notice of entry of judgment – or within 180 days of the entry of judgment (whichever is earlier)
Then the party has 10 days to accomplish service of that notice to the opposing party:
Supporting affidavits, and
A memorandum of points and authorities with statutory and case citations
(A court can stipulate to extend this 10-day time limit.) Finally, the court has 60 days after the "notice of intention" to rule whether to grant or deny another trial.
Judges deny a party's motions for new trials more often than not. But if granted, they can be a valuable opportunity to reexamine evidence and issues. In this sense, the court serves as a "thirteenth juror."15
Civil cases commonly involve the following issues:
Divorce or child custody/support
For additional help…
Call our law firm for help or fill out the form on this page.
Our attorneys serve clients throughout the state, including Los Angeles, Glendale, San Francisco, and more.
California Penal Code 1181 PC. (Under federal rules, it is rule 59.)
People v. Strickland (California Supreme Court, 1974) 11 Cal.3d 946.
People v. Aragon (1957) 154 Cal.App.2d 646.
People v. Williams (1951) 104 Cal.App.2d 323.
People v. Chandler (1957) 152 Cal.App.2d Supp. 916.
People v. Stansbury (1993) 4 Cal.4th 1017.
People v. Turner (1994) 8 Cal.4th 137.
People v. Holloway (1990) 50 Cal.3d 1098.
People v. Cornwell (2005) 37 Cal.4th 50.
People v. Albarran (2007) 149 Cal.App.4th 214.
Merrill v. Superior Court (1994) 27 Cal.App.4th 1586.
People v. DeLouize (2004) 32 Cal.4th 1223.
California Penal Code 1191 PC; see also Van Beurden Insurance Services, Inc. v. Customized Worldwide Weather Insurance Agency, Inc. (1997) 15 Cal. 4th 51.
California Penal Code 1181 PC.
Code of Civil Procedure sections (a.k.a. Code Civ / CCP / Civ. Code Proc.) 656 through 663.2; see People v. Craney, 96 Cal. App. 4th 431, 117 Cal. Rptr. 2d 147 (2002). Also see CCP 629 re. judgment notwithstanding the verdict.
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