(Citation omitted; emphasis in original.) Lombardo v. State , 172 Conn. 385, 391, 374 A.2d 1065 (1977) ; see also Skakel v. State , 295 Conn. 447, 468, 991 A.2d 414 (2010). This analysis requires the trial court hearing the petition to weigh the impact the new evidence might have on the original trial evidence.
Finally, in Hamlin v. State, 48 Conn. 92, 93-94 (1880), we articulated the test in terms virtually identical to that which we later adopted in Asherman. See also Smith v. State, 141 Conn. 202, 208, 104 A.2d 761 (1954); Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433 (1955); Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959); Lombardo v. State, 172 Conn. 385, 391, 374 A.2d 1065 (1977); Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983)." (Internal quotation marks omitted.)
With respect to the first count, claiming newly discovered evidence, the court concluded that the petitioner had failed to establish, by a preponderance of the evidence, that the evidence in question was"'newly discovered, material to the issues on a new trial . . . not merely cumulative and likely to produce a different result. Lombardo v. State, 172 Conn. 385, 390-91 [ 374 A.2d 1065] (1977).'" In the court's view, the shirt was not material evidence because it bore no resemblance to the shirt reportedly worn by the petitioner on the night of the homicide.
Connecticut cases have employed this standard, which we will refer to as the Asherman standard, in several different contexts involving newly discovered evidence. Lombardo v. State, 172 Conn. 385, 389, 374 A.2d 1065 (1977) (new testimony of two witnesses, one of whom did not testify at trial and one of whom invoked the fifth amendment at trial); Taborsky v. State, supra, 142 Conn. 624-25 (new evidence of mental disease); Krooner v. State, 137 Conn. 58, 66, 75 A.2d 51 (1950) (evidence by friends, doctors and fellow shipmates that defendant was drunk or mentally ill at the time of the murders); Link v. State, 114 Conn. 102, 157 A. 867 (1932) (newly discovered witness). The petitioner does not cite, nor does our research reveal, any Connecticut case employing the Asherman standard in a petition for a new trial based solely on a claim of false testimony, i.e. recantation.
54 Conn. App. at 632. This standard is, as Channer explains, one articulated by our Supreme Court in Lombardo v. State, 172 Conn. 385, 374 A.2d 1065 (1977). Lombardo states that the newly discovered evidence "must be evidence which persuades the judge that a jury would find [the defendant] not guilty."
This is classic cumulative evidence. See Lombardo v. State, 172 Conn. 385, 392 (1977); Summerville v. Warden, 229 Conn. 397, 438-439 (1994). The final essential requirement that the plaintiff has failed to prove is that the allegedly newly discovered evidence, in conjunction with the evidence presented at the criminal trial, would probably result in a different verdict at a new trial.
Insofar as inferential testimony may be admitted in support of an alibi, we have noted in at least two prior cases that the location of a vehicle directly involved in a crime may be an integral part of an alibi defense. See Johnson v. Commissioner of Correction, 222 Conn. 87, 93, 608 A.2d 667 (1992) (concluding that defense counsel not ineffective for presenting alibi defense at defendant's insistence even though habeas court found "untenable" defendant's alibi that he was not in car in which victim was assaulted "because of the strength of the evidence relating to the identification of the car involved in the crime, including the victim's fingerprint found on its exterior"); Lombardo v. State, 172 Conn. 385, 386-87, 374 A.2d 1065 (1977) (referring to defendant's alibi that he was "preparing to attend a funeral . . . without an operable car available" at time of illegal drug transaction in which third party removed twenty-four kilograms of marijuana from trunk of car driven by defendant and sold it to undercover officers). This court never has been asked to determine, however, and the rules of practice do not address, whether inferential testimony regarding the defendant's location at the time of the alleged offense properly falls within the definition of an alibi and is subject to disclosure under Practice Book § 40-21.
Finally, in Hamlin v. State, 48 Conn. 92, 93-94 (1880), we articulated the test in terms virtually identical to that which we later adopted in Asherman. See also Smith v. State, 141 Conn. 202, 208, 104 A.2d 761 (1954); Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433 (1955); Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959); Lombardo v. State, 172 Conn. 385, 391, 374 A.2d 1065 (1977); Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983). In addition to considering the specific elements articulated previously, we have held that a court's decision on the petition should be guided by the more general principle that a new trial will be warranted on the basis of newly discovered evidence only where "an injustice was done and whether it is probable that on a new trial a different result would be reached."
We have applied this general rule to statutes that affect other important interests that are not purely financial. Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 183, 540 A.2d 693 (1988) (proof of criminal activity as element of a civil action); Mallory v. Mallory, supra, 207 Conn. 52-53 (determination of whether a parent has sexually abused a child for the purposes of child custody modification); Lavertue v. Niman, 196 Conn. 403, 407, 493 A.2d 213 (1985) (general rule applied to paternity actions despite their "`quasi-criminal' overtones"); Lombardo v. State, 172 Conn. 385, 390-91, 374 A.2d 1065 (1977) (petition for a new trial following a criminal conviction on grounds of newly discovered evidence). Second, adoption of the fair preponderance standard best furthers the interests of the probationer and the state in the revocation proceeding.
Id. (emphasis added). For an identically stated standard, see Lombardo v. State, 172 Conn. 385, 374 A.2d 1065 (1977); State v. James, 490 So.2d 616, 620 (La.App. 1986); and State v. Volpato, 102 N.M. 383, 696 P.2d 471 (1985). See also Solis v. State, 262 So.2d 9, (Fla.App.) cert. denied 265 So.2d 372 (Fla. 1972), which was superseded by Mollica v. State, 374 So.2d 1022 (Fla.App. 1979), cert. denied 386 So.2d 639 (Fla. 1980) on the issue of exercised discretion.