Newly Discovered Evidence in Michigan vs Newly Available

In Michigan post-conviction litigation, there are many common mistakes people make. However, very few are as fatal as confusing newly discovered evidence with newly available evidence. On paper, this difference may seem academic. But in Michigan courtrooms, it can determine whether a motion is seriously considered or dismissed outright.

Judges don't treat all new evidence the same. Michigan courts apply a strict, multi-factor test to newly discovered evidence claims. Understanding this distinction is quite essential if you're considering a motion for a new trial or a motion for relief from judgment. 

It also helps a lot when making any post-appeal request based on evidence that the jury did not see. And not many Michigan appellate lawyers understand this distinction better than Mark Linton. He routinely demonstrates on the record and in open courts why one form of new evidence survives judicial scrutiny, and the other doesn't. 

Here, he explains why the difference matters. He also guides you on how Michigan courts analyze claims of new evidence under Michigan Court Rules (MCR) 6.431 and MCR 6.500, Michigan Compiled Laws (MCL) 770.1, and decades of appellate precedent. 

The Legal Framework for New-Evidence Motions

Michigan law provides various procedural paths for challenging a conviction based on new evidence. These include MCL 770.1, which governs motions for a new trial in the interest of justice. MCR 6.431(B) handles trial-level motions for a new trial based on newly discovered evidence. 

Another path is through MCR 6.500, and the sections that follow. This deals with 6.500 motions or motions for relief from judgment. These rules may differ procedurally. However, Michigan courts apply a consistent substantive standard when evaluating claims based on newly discovered evidence. 

That standard comes from Michigan case law, instead of statutes. And it's very unforgiving.

What Counts as Newly Discovered Evidence in Michigan?

Michigan courts use a four-part test to determine what newly discovered evidence is. The test was first articulated decades ago and reaffirmed repeatedly in various cases, including the People v. Cress (2003) case. To qualify as newly discovered evidence, a defendant must show four things. 

Firstly, the evidence itself is newly discovered, not just newly presented. Secondly, the defendant exercised reasonable diligence and couldn't have discovered the evidence earlier. Thirdly, the evidence goes beyond what was previously presented. Fourthly, the evidence would likely produce a different result on retrial. 

All four elements must be satisfied, and failure on any single prong ends the court's inquiry. 

Newly Available Evidence is a Whole Different Thing

Newly available evidence refers to evidence that existed at the time of trial and was known to the defense. However, the evidence couldn't be presented because a witness refused to testify, invoked the Fifth Amendment, or was otherwise unavailable.

The courts have repeatedly held that this type of evidence doesn't qualify as newly discovered evidence. In the People v. Rao (2012) case, the Michigan Supreme Court addressed a common scenario related to newly available evidence. A witness had refused to testify at trial but later came forward with favorable testimony. 

The Court argued that evidence isn't newly discovered if the defendant knew about it at the time of trial. This is regardless of the fact that the witness was unavailable or unwilling to testify. This means that a witness changing their mind is not newly discovered evidence. This distinction is decisive and often misunderstood.

Why Michigan Courts Draw the Line Between the Two

 

Michigan appellate courts are deeply concerned with finality. And trials are meant to resolve factual disputes once, not repeatedly. If every post-trial change of heart could justify a new trial, then convictions would never truly be final. 

That's why Michigan courts ask a threshold question of whether the evidence itself was unknown or if it was simply unusable. They aim to focus on the substance of evidence. If it was known at trial, courts generally consider it newly available, not newly discovered.

Appeals courts in Michigan often reject evidence in various common scenarios and label it as newly available evidence. One common scenario, as earlier mentioned, is when a co-defendant invokes the Fifth Amendment at trial but later agrees to testify.

The second scenario is when a witness refuses to cooperate with the defense counsel but later provides an affidavit. And thirdly, when a family member “didn't want to get involved” during trial but is now willing to talk. 

Michigan judges have consistently held that these three scenarios don't satisfy the first prong of the four-part Cress test. And this is evident in the People v. Johnson (1996) and the People v. Grissom (2012) cases.

When the Evidence is Truly Newly Discovered 

Courts in Michigan have also recognized newly discovered evidence in various forms. The first form is unknown forensic evidence that's later uncovered through testing. Previously undisclosed police or prosecution records and scientific developments that undermine trial evidence are other forms. 

Additionally, witness recantations (although under very limited circumstances) can be newly discovered evidence. Recantations are viewed with extreme suspicion and are rarely enough on their own. Courts closely look at their timing, credibility, and motive. 

The diligence requirement in newly discovered evidence is the silent killer of motions. Even if evidence is truly new, the motion can still fail if the defendant can't prove reasonable diligence. The Michigan system expects defendants to show three things when it comes to diligence.

Firstly, what investigative steps were taken before trial. Secondly, why the evidence couldn't have been discovered earlier. And finally, how the evidence ultimately came to light. A defendant merely stating they didn't know about the evidence without proper demonstration isn't enough.

MCR 6.431 and MCR 6.508 indicate that a lack of diligence is a viable ground for denial of motions for a new trial and relief from judgment. And this overlooks how compelling the evidence may be. 

The “Different Result” Requirement

Perhaps the most difficult hurdle is the final prong of the Cress test. This is proving that the new evidence would likely produce a different result on retrial. The courts don't focus on how helpful the evidence is. Instead, they ask if it's outcome-determinative. 

In the People v. Cress case, the court emphasized that speculation alone isn't sufficient. A defendant has to go the extra mile to show there's a reasonable probability of acquittal or a materially different verdict. 

Judges deny motions where the evidence simply impeaches a witness or the prosecution's remaining evidence is stronger than the challenged evidence. They also don't accept motions where the new evidence conflicts with physical or forensic proof. 

Post-appeal motions come with an even higher bar. Once direct appeals are exhausted, defendants face additional roadblocks under MCR 6.508(D). And to succeed, a defendant must show actual prejudice and good cause for failing to raise the issue earlier. 

Actual prejudice means there's a real and substantial likelihood of a different outcome. And mislabeling newly available evidence as newly discovered evidence is a common reason post-appeal motions fail at this stage. 

Why the Label Matters More Than the Evidence Itself

Judges don't simply read the evidence and decide whether they like it. Instead, they first decide what category the evidence falls into. 

And if it's newly available rather than newly discovered, the court often never reaches credibility, weight, or fairness checks. The motion fails as a matter of law. 

That's why precise framing and a deep understanding of Michigan precedent are important. 

How Mark Linton Keeps New-Evidence Motions Alive 

In Michigan appellate and post-conviction practice, words matter. And so do labels and categories. Calling evidence “newly discovered” doesn't make it so.

Courts will scrutinize your claims deeply. And this is often the difference between a serious hearing and a summary denial.

Courts decide what your evidence is before they decide what it means. And if it's labeled wrong, the door closes immediately. Mark Linton is an established appellate attorney with a strong record before Michigan courts. 

He understands how Michigan judges dissect new evidence line by line. And he builds motions that survive that first, unforgiving screen. He knows how to frame motions so the court is forced to engage. 

And he shines in cases involving evidence that surfaced years later, records the jury never saw, and testimony the law treats with suspicion. Contact Mark Linton today to frame your motion with precision before your evidence is buried under the wrong legal label.