This is another question I’m often asked, mostly in the criminal context. So, here it is.

In the criminal context, a motion for new trial comes under Massachusetts Rules of Criminal Procedure 30(b). Rule 30(a) involves trying to correct or vacate an illegal sentence, while leaving the conviction in place.

Rule 30(b) is about vacating the conviction and seeking a new trial altogether, whether a person was convicted after a bench or jury trial, or whether a person pleaded guilty sometime in the past. A motion to withdraw a guilty plea is treated as a motion for new trial. As with a direct appeal, you should have good legal reasons to seek a new trial or a withdrawal of a guilty plea.

A motion for new trial is a post-conviction remedy available to a person which, though different from a direct appeal, has much in common with an appeal. Appellate lawyers generally pursue these motions on behalf of clients in addition to doing direct appeals.

The motion itself is a request of the trial court to vacate the conviction, whether rendered through trial or plea, and to allow for a new trial. Usually, the motion will be decided upon by the same judge as the judge who presided over the trial or the guilty plea.

If that judge is no longer available, however, then a new judge will decide on the motion. Many times a motion for new trial on an old case will go to a new judge because the original judge had since retired.

The motion pleadings that you file with the court will generally include:

  • The Motion for New Trial itself
  • A Memorandum of Law accompanying the motion for new trial
  • Affidavits of various persons in support of the motion for new trial

See below for a fuller description of these items.

1. When Can Someone File A Motion For New Trial?

According to Massachusetts Rules of Criminal Procedure 30(b), a motion for new trial can be filed at any time. There are no time limits imposed on when such a motion can be filed, unlike in direct appeals.

And, under the rule, a judge may grant such a motion “if it appears that justice may not have been done.”

The older the case, of course, the more practical difficulties there are in succeeding, but that’s another issue (see below). I’ve done motions for new trial on cases that were only a few years old and on cases that were decades old (one that was 40 years old!).

2. How Do You File A Motion For New Trial?

If you retain an attorney for this, then the attorney must first file a notice of appearance in your case with the trial court. The attorney then has quite a lot of work to do on your behalf, which generally includes the following:

A. BUILDING THE EVIDENTIARY RECORD

An evidentiary record basically amounts to all the factual information that you will file with the court along with your motion. Because you’re asking the court to reverse a conviction, the court needs factual information about what happened in order to make a legal decision about whether to allow the motion or not.

Under the best of circumstances, the evidentiary record would include 1) the transcript of the plea proceeding, 2) a transcript of any prior important motion hearings (such as a motion to suppress), 3) the docket sheet in the case, 3) the indictments (if a superior court case), and 4) the all-important affidavits and exhibits (see section b below).

If the case is relatively new, then you must act to preserve the plea transcript (and that of any motion hearing as well). This can be done by either ordering a CD from the court (if it is district court) or filing a motion for transcripts (if it is superior court).

The danger here is that all courts in Massachusetts, under their own rules, will dispose of the recordings of proceedings after a few years.

Because of this, it is crucially important to preserve a record of the plea proceeding—even if you’re not sure that you want to file a motion for new trial right away. If the record of the plea proceeding is disposed of by the court, then the actual record of what happened in court is lost forever.

If this happens to you, it will be far more difficult to proceed and the courts will often hold it against you that you did not timely preserve the record. You could still succeed under these circumstances, though it is just that much more difficult to do. You’d basically have to find an alternative way to reconstruct the record, which would generally be by affidavits (from whom depends on the circumstances).

If there is no way to reconstruct the record of what happened in court, however, then it might be impossible to allege in your motion that certain legal problems existed there. I discuss this in more detail below.

Sometimes in older cases, however, a transcript was ordered some years ago and may be sitting in the court file or your attorney’s file. If so, get your hands on it and preserve it.

B. THE IMPORTANCE OF AFFIDAVITS

The affidavits that support a motion for new trial are often the most important part of the entire set of pleadings filed with the court. The reason for this is that an affidavit is a set of factual assertions, made in a sworn statement, that did not come into the record during trial or during the plea proceeding. By submitting affidavits along with the motion and other documents, you are asking the court to credit the affidavits and thus take into account the new facts they contain.

Who provides affidavits for a motion for new trial?

While your attorney handling the motion will usually draft all the affidavits, they can come from a wide range of possible people. Generally, however, the following people are the most common sources of supporting affidavits:

• The attorney handling your motion for new trial itself (such as me). This affidavit will usually attest to the record during trial or during the plea and will attach relevant copies of these proceedings to the affidavit as exhibits. Though this affidavit might also include other subject matter as well.

• You, the litigant seeking the motion for new trial. This is a little tricky because you have some hurdles to overcome here. One is to make sure that you do not say too much and hurt yourself. The other is to make sure you are credible with the court, that is, to make sure you are not making extravagant claims to make yourself look as good as you possibly can. Sometimes people do this in their affidavits, thinking it strengthens their claims in their motions, but it can backfire badly by making them look dishonest or self-serving to the judge. It is usually best to make sure that your affidavit contains bare bones assertions, such as stating that you would like a new trial, or that you would not have pleaded guilty and would have gone to trial instead had something (a legal error of some sort—see below) not occurred. Factual assertions that you have personal knowledge of and which are necessary to support the motion can also come in, as can exhibits to back up what you say, but caution is in order.

• Your original trial or plea attorney. This person’s affidavit can become vitally important for the simple reason that this attorney was your representative in the legal proceeding you’re now contesting. Sometimes it’s very difficult to get an affidavit from your old attorney, however, for any number of reasons.

• Any witness who had helpful information for you at trial, and was known to your attorney, but never investigated by the attorney or never called as a witness at trial (when they should have been). This is a relatively common problem. The trick is to investigate this witness thoroughly, determine if this witness is a credible person and really has facts that could have helped you at trial, and then to make sure you can get an affidavit from this person. If you get a hearing on your motion, you would want to call this person as a witness.

These are the most common affidavits you might have. They can be short and sweet or very long and packed with documents as attached exhibits. All depends on what is going on in the case.

C. THE MOTION ITSELF AND THE MEMORANDUM OF LAW

The motion itself is the easiest document to draft. It definitely has to be legally precise and correct, which can take a bit of effort, but it’s usually a short document. It’s basically made up of a request for a new trial or a request to withdraw your guilty plea, backed up by a series of legal claims that, if accepted by the judge, would allow the judge to grant your request.

The memorandum of law that accompanies the motion for new trial, in contrast, is usually a pain in the neck to write—if it’s done well. Like writing an appellate brief, the memorandum of law is made up of legal arguments and comes with a good deal of legal research. It’s the set of legal arguments for why each legal claim made in the motion should be accepted by the judge, such that the judge should allow the motion for new trial. It is an attempt to legally persuade the judge to agree with you.

In my experience, the clarity of your legal argument (no rambling, no needless or inaccurate citations of cases, no murky reasoning, etc.), good writing (tight, grammatically correct, etc.), and the right legal authorities to back up the argument (cases, statutes, rules, etc.) is the way to go. It usually takes a lot of effort to put such a memorandum together, however.

While the memorandum of law can be lengthy, it should not be needlessly long and rambling either. Judges are human too. A long piece of bad writing can put a judge to sleep and might also annoy him, which we do not want to do. Making the memorandum of law concise, tightly written and relevant to the motion really helps.

3. The Four Main Categories People Fall Into

Generally, a person who wants to pursue a motion for new trial in the trial court most often falls into one of the 4 categories below. Each one is a little different.

CATEGORY 1: YOU GOT A NEW CRIMINAL CONVICTION AT TRIAL AND NOW HAVE A DIRECT APPEAL RIGHT

Though you have a right to a direct appeal, you may also have a motion for new trial in your case. You can do both, though not at the same time. It’s often best in these circumstances to do the motion for new trial first and, if you lose, the direct appeal second. You can appeal the loss of your motion for new trial and combine it with the direct appeal.

How you go about this depends on whether your direct appeal is already docketed in the Appeals Court. If so, you need the Appeals Court’s permission to file the motion for new trial in the trial court before you go forward with the direct appeal.

A big question often asked here is why someone would do both a motion for new trial and later a direct appeal.

The answer is simple. Some legal issues that you want a court to decide on after a conviction belong in a motion for new trial and some legal issues belong in a direct appeal. What’s the difference between the two types of issues?

The most important difference is evidentiary. Any legal issue that you want a court to decide on in reviewing your case and conviction, where that court can rule on the issue (either for you or against you) solely by relying on the facts in the trial record (with no outside information) is a direct appeal issue.

Any legal issue that requires a court to consider outside information, such as new facts contained in affidavits and the attached exhibits, is a motion for new trial issue.

In fact, the Appeals Court will not hear legal issues that require affidavits and outside information not on the trial record, unless they were first considered by the trial court.

So, when an appellate lawyer examines your case and conviction to determine whether you have any issues that could help you in a post-conviction effort, a major question is whether any of the issues you have belong properly in a direct appeal or in a motion for new trial.

How can this actually play out for you?

Your lawyer’s investigation of the case for possible legal issues will result in 1 of 4 possible outcomes. After the investigation of your case, you may have 1) no legal issues in your case that can help you at all (the worst possibility), 2) both direct appeal issues and motion for new trial issues (the best outcome), 3) direct appeal issues, but no motion for new trial issues (the most common outcome), and 4) motion for new trial issues, but no direct appeal issues (less common, but it happens).

Only a thorough examination of your case can determine which situation you’re in.

CATEGORY 2: YOU HAVE AN OLD CRIMINAL CONVICTION WHERE YOU ALREADY HAD A DIRECT APPEAL AND LOST

You may have already had a direct appeal after a conviction, but you can still pursue a motion for new trial in the trial court. Remember that Rule 30(b) of the Massachusetts Rules of Criminal Procedure allows you to file such a motion at any time.

Given that you already had a direct appeal, the transcript of the trial should be available or preserved. If it was thrown away, no longer kept at the appeals court, and no longer in state archives, then you might try the court stenographer to see if it’s still available through this person. You would have to pay for it again if you get it through the stenographer.

CATEGORY 3: YOU HAD A GUILTY PLEA, EITHER OLD OR NEW, WHERE YOU DO NOT HAVE A RIGHT TO A DIRECT APPEAL

This is a straight forward matter of determining if you have an good legal issues n your case by reading through the transcript of the plea proceeding and any previous important hearings (such as a motion to suppress).

Needless to say, you need the transcripts.

It’s often important to review the entire file in the case as well. Lots of stuff can turn up here that might help you.

Once issues are identified, then, as above, you draft the pleadings and file it in the court.

CATEGORY 4: YOU HAVE AN OLD CASE WHERE YOU HAVE ALREADY FILED ONE OR MORE MOTIONS FOR NEW TRIAL IN THE PAST AND LOST

This can happen if you had a trial and later a direct appeal and lost. It can also happen when you pleaded guilty. It is surprisingly common to see people filing their own motions (pro se, or without an attorney). Sometimes, people do this twice or several times.

The problem here is that, you are expected by the court (whether on your own or with an attorney) to put forth all issues of legal merit you have in a case when you filed that first motion for new trial—as long as these issues are known or otherwise discoverable at the time.

If you fail to do this and put forth one or two issues, while leaving other items out, then the doctrine of waiver will apply when you file another motion for new trial in the future. The prosecutor is most certainly going to argue this.

The argument is that you waived your right to have the new issue heard by a judge because you failed to put it into the old motion. Many times, a judge will agree and deny your motion outright. But it is within the discretion of the judge to hear the new issues as well.

So it’s crucial that, if you have already filed a motion for new trial and believe that you have good legal reasons to file another one, that you get it right this time and convince a judge in the pleadings that discretion should be exercised and the new motion should be heard.

Sometimes, when you have a very good issue, but there was a past pro se motion, the judge might allow some leeway because you are not a lawyer. If the past motion was filed by an attorney, however, the hurdle might be a little higher in getting a judge to hear a second (or third) motion for new trial.

Whatever category you fall into, however, it may be to your advantage to hire a post-conviction attorney to pursue a motion if you do have good legal issues in your case.

4. Requesting a Hearing

When you file your pleadings with the court, you would generally want to request a hearing on the pleadings. Most of the time, the hearing you seek is evidentiary in nature, where you will call witnesses to the stand. These witnesses will generally be the people who provided supporting affidavits.

Sometimes, you can get a hearing that is not evidentiary, but is just plain legal argument where both sides put forth their cases to the judge.

Generally, however, a judge will not allow a motion for new trial without a hearing first if the prosecutor opposes the motion—which they usually do.

So if the judge grants a hearing after you file, that’s a great sign that you have something good in your case. You have at least hit first base here.

The majority of times, however, motions for new trial are simply denied by the judge with no hearing. This goes to the fact that getting a motion for new trial allowed is a really difficult task.

To have the best chance of success, you really do need to have good legal issues in your case, plain and simple.

5. How Long Does It Take For The Judge to Make a Decision About The Motion?

This question is always on a client’s mind. It’s understandable because a client has a strong interest in vacating a conviction and wants a fast answer. But there is no clear answer.

The short answer is that it can take a month, a handful of months, or even a handful of years (rare).

Why? I have no idea.

Judges are busy. They have lots of cases in front of them, each one requiring a huge amount of time and mental energy.

Judges are human too. So, imagine the headaches they get when they receive thick sets of post-conviction pleadings on their desks—from old trials they actually presided over.

Now they are asked by your attorney to re-open the coffin and exhume the body because, as you’re trying to argue, the body may not actually be dead after all.

It’s tough to know why things can take a long time because, as defense attorneys, we don’t get to see inside the judge’s chambers too often.

6. What Happens If You Win?

Congratulations. Now you have to wait to see if the Commonwealth will appeal the judge’s decision allowing your motion for new trial. If so, you have to go to the Appeals Court next to defend the Commonwealth’s attack on the judge’s decision. This is called a collateral appeal.

If the Commonwealth appeals, you may either win this or loose this. It depends.

If the judge’s allowance of your motion for new trial stands, however, then you may next be facing a new trial in the trial court altogether. How this plays out depends on quite a number of factors. I won’t address this here because it would take a very long answer.

7. What Happens if You Lose?

Condolences. If you believe the judge was wrong in denying your motion, however, you can appeal this to the Appeals Court. You need to show that the judge had abused discretion, or made erroneous findings of fact (as contradicted by the record of the motion hearing) which were important errors and, from there, made faulty conclusions of law.

You also have to be wary of all the traps that may lie before you. The Appeals Court, like the trial judge, wants to uphold the finality of conviction. Finality means that you are convicted, so accept it and move on. A post-conviction motion to get your conviction vacated is also an attempt to unseat finality of conviction in your case. You need powerful reasons for the Appeals Court to agree with you.

Okay, that’s about all I should say at this point. I hope it was helpful.