Sunday, December 3, 2006

Recanted testimony can be considered newly discovered evidence

In Armstrong,

we explained that recanted testimony can be considered newly

discovered evidence, but in making that determination, the trial court

must examine "all the circumstances of the case. " 642 So. 2d at 735

(emphasis supplied). We cautioned, however, that recanted testimony

is "exceedingly unreliable, and it is the duty of the court to deny a new

trial where it is not satisfied that such testimony is true." Id. Only

where the recanted testimony is of such nature that a different verdict

would probably be rendered should a new trial be granted. See id.

In this case the trial court concluded that Carson's recanted

testimony would not probably produce a different result on retrial. In

making this determination, the trial court did not consider Emanuel's

testimony, which it had concluded was procedurally barred, and did

not consider Carnegia's testimony from a prior proceeding. The trial

court cannot consider each piece of evidence in a vacuum, but must

look at the total picture of all the evidence when making its decision.

Lightbourne, 742 So. 2d at 247.

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