Decision to conduct discovery on new trial motion must be based on what defense might reasonably be able to prove, not what it has already proved

TRIAL United States v. Velarde, No. 06-2126, ___ F.3d ___ (10th Cir. May 1, 2007)(New Mexico). Appeal of denial of defendant’s motion for new trial brought under Rule 33(b) of Federal Rules of Criminal Procedure. HELD: District court erred by denying defendant’s motion for new trial claiming that government improperly withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). District court’s ruling that allegedly withheld evidence would be inadmissible was reached on basis of evidence actually submitted by defense counsel as opposed to evidence that could reasonably have been expected to be elicited through discovery. When determining whether to conduct discovery on new trial motion, issue is not what defense has already proved, but what defense might reasonably be able to prove if discovery is conducted. Read the opinion here.