Texas Stamp


PD-0723-18 12/05/2018

1. “Whether, as a matter of law, evidence that has been forgotten by a defendant is unknown, for purposes of the newly-discovered-evidence rule, only if the defendant forgot about it because of a physical or mental condition, such as amnesia or repression, that was caused by a traumatic event, debilitating injury, or disease, the existence of which can be confirmed by science or medicine.”

2. “Whether, as a matter of law, a defendant who fails to recall evidence, once known but since forgotten, has not, for purposes of the newly discovered evidence rule, exercised diligence to discover or obtain such evidence.”

Carsner was convicted of capital murder for killing her elderly mother and stepfather. At trial, she claimed she shot them to protect her daughter because they were granted unsupervised visitation with her custody after they initiated a complaint to CPS. Carsner explained that her stepfather sexually abused her as a child and that her mother knew about it and did not stop it. In response to this strategy, the State argued that Carsner’s allegation was fabricated because she made it for the first time after the CPS complaint.

After Carsner was sentenced, her ex-boyfriend from high school, Henry O’Hara, read about her case in the paper; he was surprised by the report that Carsner had been unable to refute the State’s fabrication claim because she had in fact disclosed the abuse to him thirty years earlier.  O’Hara met with Carsner, who then filed a motion for new trial alleging that her statement to O’Hara is newly discovered evidence that could corroborate her testimony and rebut the State’s fabrication claim. At the hearing, Carsner’s counsel stated that before trial she knew the State would claim fabrication and therefore told Carsner that she needed to identify anyone whom she may have told about the abuse.  Carsner had said she did not tell anyone. The trial court ultimately denied her motion.  Though it found that Carsner’s thirty-year-old outcry to O’Hara was newly discovered due to memory loss, it concluded that it was cumulative of other evidence at trial.

The court of appeals upheld the trial court’s ruling.  It held that Carsner’s statement to O’Hara is not newly discovered evidence not known or unavailable to her at trial and that she failed to exercise due diligence to discover and obtain it. The court determined that it is not newly discovered because Carsner is the one who made the outcry. This, the court stated, is analogous to cases involving the discovery of an alibi witness.  Purported newly discovered alibi witnesses are not deemed previously unavailable because the defendant should have known of the witness at the time of the offense. The court rejected Carsner’s justification that the statement had been forgotten.  The abuse was known to her before trial, and she did not argue she suffered amnesia or a physical or psychological ailment that prevented her from recalling it.  Again, the court observed that, like the alibi witness scenario, such witnesses are not newly discovered when the witness first comes forward after trial. Finally, it held she did not exercise due diligence because she failed to recall the information that was within her personal knowledge.

Carsner argues that the court of appeals improperly characterized the issues as one of law when they are fact issues. In the alibi scenario, the issue comes down to the credibility of the defendant as to whether the defendant knew it all along. Further, as a matter of logic, evidence that is forgotten is not known.  Defendants “are not responsible for a failure to produce such evidence as was both actually unknown to, and actually undiscovered by, them in spite [of] reasonably diligent investigative efforts.”  Carsner asserts that it is the fact of the memory loss, not the reason that is important.  As for the due diligence holding, the court’s rationale lies on the same erroneous presumption that evidence once known can never really be forgotten.  Most importantly, as a fact issue, the court of appeals should have deferred to the trial court’s newly discovered finding, which was based on Carsner’s credibility.

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