Nov 23

Appeals are argued almost entirely on the basis of the existing trial record. In limited cases, however, an appeal lawyer can introduce new evidence.

Known as “fresh evidence”, this material must have been unavailable at the time of the trial.  It cannot be relied on in an attempt to further litigate facts heard already at trial.

Appellate courts have very broad discretion to allow the introduction of fresh evidence. In determining whether to receive fresh evidence, courts are required to balance four factors:

  1. Was the evidence available during the trial?
  2. Is the proposed evidence relevant to a core issue at the trial?
  3. Is the proposed evidence credible, in the sense that it is reasonably capable of belief? And
  4. If believed, would the introduction of the proposed evident have affected the verdict?

Some fresh evidence can have an impact on the soundness of a verdict. James Lockyer has been at the forefront of challenging wrongful convictions by relying on fresh evidence, examples of which include newly discovered DNA or state misconduct.

If handled properly, fresh evidence can be a valuable tool for use on an appeal. Lockyer Zaduk Zeeh are leaders in this area. Please contact us to discuss your matter if it concerns fresh evidence: 416-613-0416, and