Fresh Evidence in Fiction and Real Life

Sophie Weber, in Beyond All Reasonable Doubt by Malin Persson Giolito, undertakes the difficult task of winning a criminal appeal in the Swedish court system. 

The challenge is compounded by the lack of legal error in the conduct of the trial.

She is left with establishing the evidence securing the conviction was unreliable. In her thorough review of the file she finds important evidence not presented at trial and evidence that forensic testimony was unreliable. Presenting evidence and attacking an expert are both very difficult on appeal.

As I do not know Swedish criminal law I shall discuss the case in the book using the process that would apply in Canada. I have personal experience in this area from a civil case. The law is essentially the same in criminal law.

To bring evidence to the Court of Appeal not given at trial is to apply to introduce fresh evidence. Such applications are rarely granted.

They are considered on what is often called the Palmer test. In a case involving Walmart the Saskatchewan Court of Appeal set out the four factors from the test that must be met to admit fresh evidence:

“The evidence will not be admitted, if by due diligence it could have been used at trial;

“The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the action;

“The evidence must be credible in the sense that it is reasonably capable of belief; and,

“ It must be such that if believed could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.”

The fresh evidence in the Swedish case was available though buried in the extensive disclosure provided by the prosecution.

In my case involving a question of arson in a claim for insurance coverage the original lawyer for my clients, though he knew samples had been taken from the house, did not check for the results. Had he obtained the results he would have learned there was no evidence of accelerants. My clients had lost the trial with him as their lawyer.

Weber could argue as we did that the trial lawyer did not do his job properly. While appellate courts do not want to be plagued with cases on the competency of trial lawyers there is a sub-factor that in criminal cases the element of “due diligence” is not applied as strictly.

In the Swedish case and my case the second factor was clearly met for the fresh evidence dealt with the decisive issue. In the criminal case it challenged the forensic base for tying the accused to the murder. In my case it challenged the report of an expert who had said the fire was deliberately set though that expert had not considered the negative test results for accelerants in his report.

With regard to the third factor the evidence was in Sweden, as in my case, physical evidence that was reliable.

The fourth factor is met in the Swedish case for, when the fresh evidence is accepted, there is no evidence to tie the accused to the murder. In my case the test results  of the crime laboratory could, in the words of the factor, “reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result” on the cause of the fire.

“Fresh” is a vivid word to use in describing evidence sought to be admitted on appeal that was not part of the trial. I cannot recall any crime fiction featuring a “fresh” evidence application.

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Giolito, Malin Persson - (2019) - Beyond All Reasonable Doubt