Can a New Trial Be Granted on the Basis of Newly Discovered Evidence Consisting of Affidavits Executed by the Codefendants ?
In People v. Molstad, 101 Ill. 2d 128, 135, 461 N.E.2d 398, 77 Ill. Dec. 775 (1984), the supreme court granted a new trial based on newly discovered evidence consisting of affidavits executed by the codefendants of the defendant.
In that case, following a guilty verdict but prior to the sentencing of four convicted defendants, defense counsel offered affidavits of four convicted codefendants and one acquitted codefendant that stated that the defendant had not been present at the scene of the crime.
The supreme court concluded that those affidavits would create new issues to be considered by the trier of fact. Molstad, 101 Ill. 2d at 135.
The court held that the new affidavits could not have been discovered with the exercise of due diligence, since the codefendants could not have been forced to violate their fifth amendment right to avoid self-incrimination if the codefendants did not choose to do so. Molstad, 101 Ill. 2d at 135.
The court reasoned that the evidence in that case likely would have produced a different result because the testimony of the sole prosecution witness placing the defendant at the scene of the crime would have to have been weighed against the defendant's own alibi testimony as well as the testimony of the five codefendants. Molstad, 101 Ill. 2d at 135-36.