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A witness who is alive can be brought back for a new trial.camescope image by Jerome Dancette from Fotolia.com
Decide if a petition for a new trial or a dismissal is the proper remedy to the violation. If the witness is still available, a new trial will be an effective remedy. But in cases in which the witness is not available due to death or lack of mental competency, the only effective remedy will be dismissal. - 2
Write a brief supporting your motion.writing image by Horticulture from Fotolia.com
Prepare a motion and brief in support of the motion. On the first page, you will write the name of the court, the name of the case, the case number and the judge. Include the words, "Oral Argument Requested." Underneath this, state the legal reason for your demand. Your brief could state, "PETITIONER JOHN DOE'S MOTION FOR RELIEF FROM JUDGMENT UNDER RULE 60(b)."
Include a table of contents that will list introduction, background, argument, conclusion and table of authorities.
In the introduction explain the ground for seeking relief. It could state something like, "John Doe seeks relief from the conviction for murder because the prosecution knew of a witness whose testimony could have resulted in the acquittal of the defendant, but did not reveal his identity to the defense and the witness is now deceased."
In the background section explain the details of the case and the the result of the court decisions.
In the argument, state the reason for the relief that you seek and analogize your case to the existing case law. You will want to rely on Brady v. Maryland, a United States Supreme Court case decided in 1963 that held that prosecutors must reveal evidence that is beneficial to the defendant.
If you are beyond the statute of limitation on filing an appeal, address the issue of the due diligence of the defendant in pursuing the evidence necessary for an appeal. Cite case law such as Banks v. Dretke, a 2003 United States Supreme Court opinion. This holds that when the prosecution represents to the defendant that he has disclosed all exculpatory evidence, it cannot fault the defendant for not discovering evidence necessary for an appeal.
Write a conclusion in which you reiterate your reason for relief and summarize your arguments.
Compile a table of authorities that will include every case you have cited in your argument. - 3). Attend a hearing before the court. Here you will present your arguments in favor of relief. The state will present its arguments. The judges will ask you questions about your argument. While the judge can render a decision at the hearing, she will generally deliver it months later.
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