Reopening an Idaho Conviction After Excluded Recantation Evidence

Attorney Answer

The recording is your strongest issue, but not as "new evidence" — because it surfaced during the trial, the way to attack this conviction is a direct appeal of the judge's decision to exclude it, or a post-conviction petition, and both run on clocks that may already be tight.

Start with what will not work. Idaho Criminal Rule 34 governs motions for a new trial. A motion grounded on newly discovered evidence must be filed within two years after final judgment, and for this rule "final judgment" occurs when the appeal — or the time for appeal — ends. Motions on any other ground must be filed within 14 days after the verdict, finding of guilt, or imposition of sentence. That two-year period cannot be extended unless the request for an extension is itself made inside the period, and a court has no jurisdiction over an untimely motion. But Rule 34 relief on newly discovered evidence requires evidence that was unknown at trial and could not have been found through reasonable diligence. Your recording was offered at trial and ruled on. A judge is very unlikely to call it "newly discovered."

That leaves two real vehicles. The first is the direct appeal, where the argument is that the trial court got the evidentiary ruling wrong — excluding a recorded recantation from the complaining witness is exactly the kind of trial ruling an appellate court reviews. The second is a petition under Idaho's Uniform Post-Conviction Procedure Act, Idaho Code § 19-4901 et seq. Section 19-4901(a) allows a claim that the conviction violated the U.S. or Idaho constitution or Idaho law, and also a claim that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence. Be aware of the gate: § 19-4901(b) bars issues that could have been raised on direct appeal but were not, unless substantial new evidence genuinely undermines the reliability of the conviction. So the exclusion ruling belongs on appeal, and claims like ineffective assistance of trial counsel belong in the post-conviction petition.

Under Idaho Code § 19-4902, a post-conviction petition must generally be filed within one year from the expiration of the time for appeal, or from the determination of an appeal or of a proceeding following an appeal, whichever is later.

What you can do

1. Find out today whether a direct appeal was filed after the judgment, and if so what stage it is at. Every deadline below is measured from that answer. 2. Get the case number and pull the register of actions from the clerk of the district court where he was convicted. Make sure you have the operative dates: the judgment, any notice of appeal, and any remittitur. They are on the court docket, so request or print the docket rather than reconstructing the dates. 3. Order the trial transcript of the hearing where the recording was excluded. The judge's stated reason is the heart of the appeal. 4. Preserve the recording itself — the original file, the device, and any record of who made it and when. Do not edit it or re-record it. 5. Write down, with dates, when the recording was first obtained, who had it, and when trial counsel learned of it. Whether counsel had it earlier and failed to use it is a possible ineffective-assistance claim. 6. Take all of that to a post-conviction or appellate attorney now, not after the paperwork is gathered. If he cannot afford one, ask the court about appointment of counsel in a post-conviction proceeding.

⏱ Time limits apply. Idaho Criminal Rule 34 sets a two-year outer limit for newly-discovered-evidence motions running from final judgment, and Idaho Code § 19-4902 sets a one-year post-conviction window running from the expiration of the time for appeal or from the determination of an appeal, whichever is later. Which of those dates governs depends on exactly what happened in his case after the judgment, so have someone check the docket before assuming there is still time — or that there is not.