newly discovered evidence test in Wisconsin

2026Because we conclude that Speth fails so show that the proffered new evidence “is not merely cumulative,” see id., we do not address the reasonable probability prong of the newly discovered evidence analysis. 45 No. 2025AP638-CR complaint containing two allegations of sexual intercourse was not available as evidence at time of trial. ¶140 Speth renews his arguments here that the filing of the lawsuit is highly relevant to impugn A.B.’s credibility in two respects: (1) it shows that A.B. had “significant financial motivation” to lie about Speth’s alleged sexual misconduct in the criminal case; a

2025On this basis as well, the newly discovered evidence claim fails. ¶49 Finally, Jones argues that the circuit court erred when it concluded that Salahadyn’s testimony did not satisfy the final prong, whether a “reasonable probability that a jury, looking at both the old and the new evidence, would have a reasonable doubt as to the defendant’s guilt.” State v. Avery, 2013 WI 13, ¶25 , 345 Wis. 2d 407 , 826 N.W.2d 60 .

2023Our supreme court held that these motives satisfied the newly-discovered evidence requirement “inasmuch as the motives for [the victim’s] initial accusation were unknown until she revealed them when she recanted.” Id. ¶27 In McAlister, two of McAlister’s co-defendants recanted their statements against him.

2020“A reasonable probability of a different result exists if there is a reasonable probability that a jury, looking at both the old and the new evidence, would have a reasonable doubt as to the defendant’s guilt.” Id. ¶26 For purposes of resolving this appeal, we assume without deciding that Gross’s motion satisfied the first two prongs of the newly discovered evidence standard, namely, that all of the evidence was discovered after conviction and that Gross was not negligent in seeking the evidence.

2025Applying the first and second factors under the first part of the newly discovered evidence analysis, the court acknowledged that Ehrike’s statements were discovered after Staab’s conviction and stated, “It’s hard for this court to find negligence in obtaining this information if there was an attempt to do it.” See Plude, 310 Wis. 2d 28, ¶32 .

2025Id., ¶47. ¶16 To establish a newly discovered evidence claim, a defendant must first show that: “(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking the evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative.” State v. Plude, 2008 WI 58, ¶32 , 310 Wis. 2d 28 , 750 N.W.2d 42 (citation omitted).

2023Newly discovered evidence ¶9 For a defendant to obtain a postconviction evidentiary hearing on a newly discovered evidence claim, the defendant must show specific facts, by clear and convincing proof, that “(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking the evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative.” State v. McAlister, 2018 WI 34, ¶31 , 380 Wis. 2d 684 , 911 N.W.2d 77 .

2023Newly discovered evidence ¶9 For a defendant to obtain a postconviction evidentiary hearing on a newly discovered evidence claim, the defendant must show specific facts, by clear and convincing proof, that “(1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking the evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative.” State v. McAlister, 2018 WI 34, ¶31 , 380 Wis. 2d 684 , 911 N.W.2d 77 .

2025See Vollbrecht, 344 Wis. 2d 69, ¶25 .

2022Id. ¶15 Santana argues that Jackson’s letter satisfies the newly discovered evidence standard because it: (1) came to light after his trial; (2) he was not negligent in seeking out the information; (3) it was material because it impugned M.B.’s credibility as a witness; and (4) it was not cumulative because the jury did not hear about M.B. making false allegations in the past.

2025“Once those four criteria have been established, the court looks to ‘whether a reasonable probability exists that a different result would be reached in a [new] trial.’” Id. (citation omitted). ¶19 The circuit court determined that the Sowinski evidence satisfied the first two prongs of the newly-discovered-evidence test (evidence was discovered after Avery’s conviction and Avery was not negligent in seeking the evidence).

2025See Edmunds, 308 Wis. 2d 374, ¶13 .

2022Id. at 697 . ¶33 As with a newly discovered evidence claim, a circuit court is required to hold an evidentiary hearing on an ineffective assistance of counsel claim only if the defendant has alleged “sufficient material facts that, if true, would entitle the defendant to relief.” Allen, 274 Wis. 2d 568, ¶14 .

2022See Allen, 274 Wis. 2d 568, ¶9 .

2021See id. at 246-47 . ¶27 Still, the State concedes that this court previously applied the newly discovered evidence test in State v. Ferguson, 2014 WI App 48 , 354 Wis. 2d 253 , 847 N.W.2d 900 , where the defendant sought to withdraw his pleas after entering a 11 No. 2020AP2131-CR “straight” guilty plea.

2021See id. at 246-47 . ¶27 Still, the State concedes that this court previously applied the newly discovered evidence test in State v. Ferguson, 2014 WI App 48 , 354 Wis. 2d 253 , 847 N.W.2d 900 , where the defendant sought to withdraw his pleas after entering a 11 No. 2020AP2131-CR “straight” guilty plea.

2021See id. at 347 . ¶26 In its argument for applying judicial estoppel, the State points out that Anderson relies on State v. Krieger, 163 Wis. 2d 241, 255 , 471 N.W.2d 599 (Ct. App. 1991), for its assertion that the newly discovered evidence test may be applied in motions for plea withdrawal.

2021See id. at 347 . ¶26 In its argument for applying judicial estoppel, the State points out that Anderson relies on State v. Krieger, 163 Wis. 2d 241, 255 , 471 N.W.2d 599 (Ct. App. 1991), for its assertion that the newly discovered evidence test may be applied in motions for plea withdrawal.

2021See State v. Kaster, 148 Wis. 2d 789, 801 , 436 N.W.2d 891 (Ct. App. 1989). ¶17 Like the circuit court, we focus primarily on the third requirement of the newly discovered evidence test, specifically, materiality.

2021See State v. Kaster, 148 Wis. 2d 789, 801 , 436 N.W.2d 891 (Ct. App. 1989). ¶17 Like the circuit court, we focus primarily on the third requirement of the newly discovered evidence test, specifically, materiality.

2025See id. ¶47 Because Avery’s postconviction motion did not allege sufficient facts to satisfy the Denny requirements for third-party perpetrator evidence, the Sowinski evidence is not material and therefore does not satisfy the newly- discovered-evidence test.

2024See Sweet v. Berge, 113 Wis. 2d 61, 67 , 334 N.W.2d 559 (Ct. App. 1983). 9 No. 2022AP172-CR ¶19 Concerning the first four elements of the newly discovered evidence test, Larson explains that successor defense counsel learned of the recantation and other-accusations evidence from Lucy’s mother one year after she had contacted the district attorney’s office.

2024See Sweet v. Berge, 113 Wis. 2d 61, 67 , 334 N.W.2d 559 (Ct. App. 1983). 9 No. 2022AP172-CR ¶19 Concerning the first four elements of the newly discovered evidence test, Larson explains that successor defense counsel learned of the recantation and other-accusations evidence from Lucy’s mother one year after she had contacted the district attorney’s office.

2023See Sheehan v. State, 65 Wis. 2d 757, 768-69 , 223 N.W.2d 600 (1974) (holding that there was not newly discovered evidence where the defendant knew that his co-defendant was involved in the offense and had knowledge of the facts 3 Herrera does not contend that E.H.’s affidavit meets the newly discovered evidence test.

2023See Sheehan v. State, 65 Wis. 2d 757, 768-69 , 223 N.W.2d 600 (1974) (holding that there was not newly discovered evidence where the defendant knew that his co-defendant was involved in the offense and had knowledge of the facts 3 Herrera does not contend that E.H.’s affidavit meets the newly discovered evidence test.

2023See State v. Armstrong, 2005 WI 119, ¶161 , 283 Wis. 2d 639 , 700 N.W.2d 98 .

2023See State v. Armstrong, 2005 WI 119, ¶161 , 283 Wis. 2d 639 , 700 N.W.2d 98 .

2022See McCallum, 208 Wis. 2d at 474 ; see also State v. Blalock, 150 Wis. 2d 688, 703 , 442 N.W.2d 514 (Ct. App. 1989) (courts decide cases on the narrowest possible grounds). ¶14 We first conclude that Karen’s asserted motive for falsely accusing Kaleb is not feasible.

2022See McCallum, 208 Wis. 2d at 474 ; see also State v. Blalock, 150 Wis. 2d 688, 703 , 442 N.W.2d 514 (Ct. App. 1989) (courts decide cases on the narrowest possible grounds). ¶14 We first conclude that Karen’s asserted motive for falsely accusing Kaleb is not feasible.

2019See State v. Eckert, 203 Wis. 2d 497, 516 , 553 N.W.2d 539 (Ct. App. 1996) (holding that a newly discovered evidence claim fails unless it meets all of the requirements).

2019See State v. Eckert, 203 Wis. 2d 497, 516 , 553 N.W.2d 539 (Ct. App. 1996) (holding that a newly discovered evidence claim fails unless it meets all of the requirements).

2019See State v. Holt, 128 Wis. 2d 110, 124-26 , 382 N.W.2d 679 (Ct. App. 1985). 5 No. 2018AP502-CR ¶12 In addition, Woller’s request for plea withdrawal is meritless because the victim’s postconviction recantation lacked sufficient corroboration under the sixth element of the newly discovered evidence test.

2019See State v. Holt, 128 Wis. 2d 110, 124-26 , 382 N.W.2d 679 (Ct. App. 1985). 5 No. 2018AP502-CR ¶12 In addition, Woller’s request for plea withdrawal is meritless because the victim’s postconviction recantation lacked sufficient corroboration under the sixth element of the newly discovered evidence test.

2019See State v. Pettit , 171 Wis. 2d 627 , 646, 492 N.W.2d 633 (Ct. App. 1992). 6 ¶25 In any event, Luckett's newly discovered evidence claim fails on its merits.

2019See State v. Pettit , 171 Wis. 2d 627 , 646, 492 N.W.2d 633 (Ct. App. 1992). 6 ¶25 In any event, Luckett's newly discovered evidence claim fails on its merits.

2004See Bentley, 201 Wis. 2d at 313-18 .