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Reference materials for guidance of how-to file a motion to leave, to file a motion for a new trial, and subsequent motion for a new trail
Standard definition of Brady
In as much the refusal to turn over this requested documentary evidence can be view as a violation of;
Brady v. Maryland 373 U.S. 83 (1963)
Kyles v. Whitley 514 U.S. 419 (1995)
Strickler v. Greene 527 U.S. 263 (1999)
Youngblood v. West Virginia 547 U.S. 867 ,126 S.Ct. 2188 (2006).
It is clear by the law in these Supreme Court rulings that;
WHAT IS WITHIN THE KNOWLEDGE OR POSSESSION OF ANYONE ACTING ON BEHALF OF THE STATE.
The important thing to recognize about this requirement for BRADY material is that it is not limited to things that are within the actual knowledge or possession of the individual prosecutor on the case.
7- Anything known to or in the possession of anyone in the prosecutor's office.
--- Anything known to or in the possession of the police, even if the prosecutor doesn't know about it.
--- Anything known to or in the possession of anyone else acting on behalf of the state, even if the prosecutor doesn't know about it.
--- THE PROSECUTOR IS THEREFORE PROHIBITED FROM HIDING BEHIND THE EXCUSE OF I DIDN'T KNOW ABOUT THAT. IF THE MATERIAL WAS WITHIN THE KNOWLEDGE OR POSSESSION OF ANYONE WORKING ON BEHALF OF THE PROSECUTION, THE STATE IS CONSIDERED TO HAVE CONSTRUCTIVE KNOWLEDGE OR POSSESSION OF THAT MATERIAL AND MUST OBTAIN AND TURN IT OVER TO THE DEFENCE PURSUANT TO BRADY.
In Kyles v. Whitley the U.S. Supreme Court has explicitly said that the individual prosecutor has an affirmative duty to learn of any favorable evidence known to the other people and any agencies acting on the Government behalf on the case,
INCLUDING THE POLICE. PENNSYLVANIA v. RITCHIE 480 U.S. 39 (1987).
Exculpatory evidence is evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt.
Material evidence Any matter of fact that a party to a lawsuit offers to prove or disprove an issue in the case. A system of rules and standards that is used to determine which facts may be admitted, and to what extent a judge or jury may consider those facts, as proof

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Disclaimer: the following motions are a guideline. We accept no legal responsibility. The motions supplied are for your reference.

Important notice this motion to leave to file a motion for a new trial must be filed jointly with a motion for a new trial as the court's time frame is 7 days therefore filing both together will help you avoid time default with the court please attach the affidavit of indigency with these motions to avoid paying the filing fee it must be notarized which your loved one can do at the law library within their prison.

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing motion for leave to file a motion for a new trial has been sent via regular U.S. mail to the _______________________________ county prosecutor at __________________________________________________________________, on this _____ day of _____________________, 20____.
_________________________________
PRO SE, #

IN THE COURT OF COMMON PLEAS
______________ COUNTY, OHIO
CRIMINAL DIVISION
STATE OF OHIO CASE NO. _____________________
PLAINTIFF,
VS. JUDGE ______________________
__________________ EVIDENTIARY HEARING REQUESTED
DEFENDANT
*************************************************************************************MOTION FOR A NEW TRIAL, PURSUANT CRIMINAL RULE 33
*************************************************************************************
Now comes the defendant, ____________________________, pro se, and respectfully moves this Honorable Court for a new trial pursuant to criminal rule 33, based upon both newly discovered evidence and other evidence collected since trial. Criminal rule 33 (A) (6) provides that;
When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the grounds of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavit of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses.
Case History
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
New Evidence
the evidence defendant is presenting in support of this motion is/are_____________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
Law and Argument
the Supreme Court of Ohio has long ago determine that “to warrant the granting of a motion for a new trial in a criminal case, based on the grounds of newly discovered evidence, it must be shown that the new evidence ( 1 parentheses discloses a strong probability it will change results if a new trial is granted, ( 2 parentheses has been discovered since the trial, ( 3 parentheses as such as could not in the exercise of due diligence have been discovered before the trial, ( 4 parentheses is material to the issue, ( 5 parentheses is not merely cumulative two former evidence, and ( 6 parentheses does not merely impeach or contradict the former evidence.” (Emphasis added.) State v. Petro, 148 Ohio St. 505 (1947 at syllabus. However, much more recently the 8th district has found that;
[*P45] Petro is a 1947 case. It pre- dates Brady versus Maryland (1963 parentheses, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, by some 16 years, and more significantly, Kyles v. Whitley (1995), 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490, by 48 years. In Kyles, The United States Supreme Court articulated a test different from that articulated in Petro, that is, the touch tone of materiality is a “reasonable probability” of a different result. Tiles at paragraph one of the syllabus. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but, whether, in its absence, he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. Id,a “reasonable probability” of a different result is accordingly shown when the government evidentiary suppression “undermined confidence in the outcome of the trial.” Id. we note the very issue was raised in D’Ambrosio, supra, which utilize the “reasonable probability” standard with a nod toward Ohio's 62-year-old “strong probability” standard articulated and petro “used by the lower court in in this case” as perhaps being at the very least outdated, and more probably, overruled. D’Ambrosio at fn. 5.
[*P46] we specifically note State v. Johnston (1988), 39 Ohio St. 3d 48,529 N.E. 2d 898, where are the Ohio Supreme Court and reviewing and appellate decision granting a criminal rule 33 (b) (6) motion for a new trial held as follows
[*P47] “ In United States v. Bagley [(1984), 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481], the court ruled that in determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed material ‘ only if there is a reasonable, probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. A “reasonable probability” is a probability sufficient to Undermind confident in the outcome.’” Johnston at 61, quoting Bagley at 682, and citing Pennsylvania v. Ritchie (1987), 480 U.S. 39, 67, 107 S. Ct. 989, 94 L. Ed. 2d 40.
State v. Siller, 2009-Ohio-2874.
Thus, under the more recent standard, defendant need only show that there is a” reasonable probability” that the new evidence he is presenting in support of his motion would have resulted in a different outcome at trial.
ARGUMENT IN SUPPORT OF REASONABLE PROBABILITY THAT NEW EVIDENCE WOULD RESULT IN A DIFFERENT OUTCOME AT TRIAL PERIOD_______________________________________________
“While Petro stands for the proposition that newly discovered evidence that merely impeaches or contradicts other evidence is not enough for a new trial, we do not read Petro as establishing a per se rule excluding newly discovered evidence as a basis for a new trial simply because that evidence is impeaching or contradicting evidence. The test is whether the newly discovered evidence what create a strong probability of a different result at trial, or whether it is merely impeaching or contradicting evidence that is insufficient to create a strong probability of different results.” Dayton v. Martin, 43 Ohio App. 3d 87 (1987). There, the 2nd district concluded that” the trial court should determine whether Martins newly discovered evidence could not with reasonable diligence been discovered and produced by Martin at trial and, if so, whether there is a strong probability that the evidence would change the result if a new trial were granted, or whether that evidence is merely impeaching or contradicting in nature and, as such, insufficient to create a strong probability of a different result.” Id.
Instructive here is State v. Gray, 2010-Ohio-5842. There, on appeal the 8th district found that” Gray submitted two affidavits that do more than merely impeach or contradict former testimony; if true, they would exonerate Gray. Thus, the affidavit/evidence on their face (S) are you a strong probability of a different result.” Id. At syllabus 24. Similarly, in State v. Wright, 67 Ohio App. 3d 827 (1990), “in support of his motion for a new trial, right submitted an affidavit from [‘Michael Hayes, a coparticipant in the offense’] M which Hayes clearly recanted his testimony and alleged rights innocence.” Id. The second district found that “Hayes’ affidavit does more than merely impeach or contradict his former evidence; if believed it would establish Wright’s innocence. The affidavit on its face thus creates a strong probability of a different result.” Id.
as detailed earlier, the standard to be applied here there's no longer that there exists a strong probability that the newly presented evidence would support a different outcome and a new trial for defendant, but merely that there exists a reasonable probability of it doing so. Siller,supra. The new evidence being presented in support of this motion would likely meet the higher standard of presenting a strong probability, but certainly meets the more current standard of presenting a reasonable probability that they would create a different trial outcome. Consequently, a new trial for defendant is greatly warranted.
Evidentiary Hearing
In regarding the necessity for a hearing on the a fi\or mentioned Wright’s motion for a new trial, the second district further concludes that,
“Although the record in the former trial contains other evidence supporting the movements guilt, the trial court could not properly discredit the affidavit/ evidence on its face and deny the motion without a hearing, at least in the absence of internal inconsistencies in the affidavit/ evidence sufficient to destroy its credibility on its face. The trial court must afford the movant an opportunity to present evidence at a hearing in support of the motion and affidavit/ evidence before electing whether to grant or deny the motion on the full record before it, including evidence considered at the past trial.” Wright, supra.
Or like Cos, the strength of the affidavit(s)/ evidence establishes that this court must must afford defendant an evidentiary hearing on this matter for passing before passing judgment on whether to grant or deny his request for a new trial.
Conclusion
The defendant has established herein just cause as to why he should be granted a new trial. Wherefore, based upon the facts and evidence provided here in, and within the accompanying affidavit(s)/ evidence and attachments, defendant humbly prays this Honorable Court we'll find this motion well- taken and grant him a new trial.
Respectfully Submitted,
_____________________________
PRO SE, #
__________________________Correctional Institution
_______________________________
Address
_______________________________
City, State, Zip
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing motion for leave to file a motion for a new trial has been sent via regular U.S. mail to the _______________________________ county prosecutor at __________________________________________________________________, on this _____ day of _____________________, 20____.
_________________________________
PRO SE, #

Episode 7

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