Is a New Trial Based on An Affidavit of a Convicted Co-Defendant Possible ?
In People v. Molstad, 101 Ill. 2d 128, 461 N.E.2d 398, 77 Ill. Dec. 775 (1984), our supreme court held the affidavit of a convicted codefendant constitutes newly discovered evidence because such an affidavit could not have been acquired before the codefendant's conviction on the same charges.
The court held:
"The affidavits submitted as the basis for a new trial could not have been discovered with the exercise of due diligence.
The record reveals that the defendants were acquainted with each other, and presumably due diligence on the part of Molstad or his counsel could have ascertained what posture the codefendants would have taken at trial.
However, no amount of diligence could have forced the codefendants 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 majority distinguishes Molstad, noting the affidavits in that case were presented after the codefendants had been found guilty, but prior to sentencing.