BERRY RULE

Berry rule. The doctrine that a defendant seeking a new trial on grounds of newly discovered evidence must show that (1) the evidence is newly discovered and was unknown to the defendant

at the time of trial; (2) the evidence is material rather than merely cumulative or impeaching; (3) the evidence will probably produce an acquittal; and (4) the failure to learn of the evidence was not due to the defendant’s lack of diligence. Berry v. State, 10 Ga. 511 (1851). [Cases: Criminal Law  938(1). C.J.S. Criminal Law § 1447.][Blacks Law 8th]