Petition for Certiorari on Issue of Whether Defense Witness Invoking Fifth But Offering Testimony After Conviction is Newly Discovered Evidence (11/14/12)

I have previously written on the problems of a defense witness asserting his or her Fifth Amendment Privilege.  See Defense Witness Immunity: Prosecutor Discretion and Compelling Testimony of a Reluctant Witness in Criminal Cases (Federal Tax Crimes Blog 9/6/11), here; and Defense Witness Immunity (Federal Tax Crimes Blog 10/10/12), here.  The defendant desiring that testimony for defense has limited options, since the general rule is that the prosecution and the Court are not required to confer immunity to a potential defense witness.

Circuit Splits Blog has an entry on whether a witness' testimony after asserting the Fifth during the trial constitutes "newly discovered evidence" under FRCrP Rule 33  Cert. Petition Challenges Lopsided Split Involving the Scope of “Newly Discovered Evidence” in Criminal Cases (Circuit Splits Blog 11/12/12), here.  FRCrP 33 provides:

Rule 33. New trial
(a) Defendant's Motion.   Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.
(b) Time to File.
(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.
(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty. 

The Circuit Split Blog notes:

This summer the Fourth Circuit joined a majority of its sister circuits in holding that a convicted co-defendant’s exculpatory testimony given after their invocation of the Fifth Amendment does not constitute “newly discovered evidence” under Federal Rule of Criminal Procedure 33. Griffin v. United States, No. 11-7466 (4th Cir. July 24, 2012) (per curiam) (unpublished).

The Second, Third, Fifth, Sixth, Seventh, Tenth, Eleventh, and D.C., Circuits reach the same conclusion as Griffin.  The one competing Circuit opinion is from the First Circuit.  United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (1st Cir. 1997).

The defendant in Griffin has filed a petition for certiorari on the basis the split.  The link to the petition for certiorari is here.