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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v MALINI RAO, Defendant-Appellee.

Chief Justice:

Justices:

Robert P. Young, Jr. Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra

FILED MAY 17, 2012 STATE OF MICHIGAN SUPREME COURT

No. 142537

BEFORE THE ENTIRE BENCH MARKMAN, J. In People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003), this Court reiterated the four-part test that has governed motions for a new trial based on newly discovered evidence for well over a century. This case requires us to elucidate, and reemphasize, several aspects of this test. We begin with the unremarkable observation that when the defendant possesses knowledge of evidence at the time of trial, that evidence cannot be characterized as "newly discovered" under the first part of the Cress test. In addition, we clarify that knowledge of evidence at the time of trial necessarily implicates the third part of the Cress test, which requires the defendant to undertake

"reasonable diligence" to discover and produce the evidence at trial.

Finally, we

emphasize that the defendant carries the burden of making the requisite showing regarding each of the four parts of the Cress test. Adherence to these principles-- each of which is discernable from our caselaw-- is necessary to maintain the balance between generally upholding the finality of criminal judgments, and unsettling such judgments in the unusual case in which justice under the law requires. The Court of Appeals strayed from these principles, in our judgment, by overlooking that defendant and defense counsel were both well aware at the time of trial that the alleged newly discovered evidence could have supported the defense and impermissibly relieved defendant of her burden of showing that she could not, through the exercise of reasonable diligence, have discovered and produced the evidence at trial. Accordingly, we reverse the judgment of the Court of Appeals, reinstate the trial court's order denying defendant's motion for a new trial, and remand to the Court of Appeals for consideration of defendant's remaining issues. I. FACTS AND HISTORY Defendant, Malini Rao, was convicted of abusing her daughter, RS, who was 3

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Michigan Law