¶ 47. (dissenting). I respectfully dissent on both grounds. First, the trial court did not err in its application of the newly discovered evidence test and was correct that there is not a reasonable probability that Avery's new photogrammetry evidence would create a reasonable doubt when viewed alongside all of the other evidence. If the test was possibility of a different result, then I would join the Majority. It is not.
¶ 48. Second, a new trial is not warranted under Wis. Stat. § 752.35 because the new scientific evidence here does not "discredit!]" the old evidence, see State v. *588Hicks, 202 Wis. 2d 150, 171, 549 N.W.2d 435 (1996), such that an exception should be made to the well established and well-reasoned judicial policy of finality.
I. Newly Discovered Evidence
¶ 49. As to the first ground, newly discovered evidence, there is no dispute that the applicable test is whether the new evidence, alongside all of the evidence, would create a reasonable probability of reasonable doubt in the jury's mind. See State v. Love, 2005 WI 116, ¶ 44, 284 Wis. 2d 111, 700 N.W.2d 62 ("A reasonable probability of a different outcome exists if 'there is a reasonable probability that a jury, looking at both the [old evidence] and the [new evidence], would have a reasonable doubt as to the defendant's guilt.'") (citing State v. McCallum, 208 Wis. 2d 463, 474, 561 N.W.2d 707 (1997)) (brackets in Love). The trial court applied that test and concluded that there was no reasonable probability of reasonable doubt. I agree.
¶ 50. The Majority concludes that the trial court erroneously exercised its discretion by wrongly applying the "test when it weighted] competing credible evidence" and found one expert's opinion less weighty than another expert's opinion. See Majority, ¶ 32. The Majority faults the trial court for saying that Avery's expert's opinion was " 'not reliable enough'" to warrant a new tried. See Majority, ¶ 31 (emphasis omitted).
¶ 51. The Majority takes the trial court's comment out of context. The trial court was not saying that Avery's new evidence was unworthy of belief, or even that it was less believable than the State's new evidence. Rather, the trial court was saying that, even with Avery's new evidence, the rest of the trial evidence and the State's rebuttal to Avery's new evidence were so *589strong, that the trial court could not say that the jury would have a reasonable doubt. The trial court was distinguishing the type of new evidence here, an expert's photogrammetry opinion, from the type of new evidence in Hicks, DNA. DNA is unquestionably "hard" scientific evidence, unlike opinion testimony. In that context, the trial court's remarks were consistent with the correct test and not an erroneous exercise of discretion.
¶ 52. In fact, the newly discovered evidence test requires a weighing of all of the evidence, new and old, and requires a judgment by the reviewing court as to the effect that the new evidence would have on the jury's reasonable doubt decision. If weighing all of the evidence is impermissible, as the Majority says, then the newly discovered evidence test can never be performed.
¶ 53. The trial court's conclusion that the new evidence was not reasonably probable to create reasonable doubt is supported by the record. The record shows that the State's evidence at trial was strong. The State presented two eyewitness identifications, Avery's detailed confession, Avery's unsolicited apology letter and Avery's apology phone call to his mother. Avery's defense was rigorous as well. The jurors had the opportunity to hear him recant his confession and present his alibi. The jurors make the credibility decision and the jurors did not believe him. Nor did they believe the recantation at trial of one of the eyewitnesses.
¶ 54. So, the question for review is whether the new evidence would, not could, create reasonable doubt. That requires an evaluation of what the new evidence is. Avery's new evidence here is expert opinion, not DNA. It is "softer" scientific evidence in the form of an expert's opinion, which is then rebutted by another *590expert's opinion. Avery's new evidence is distinguishable from both Hicks and State v. Armstrong, 2005 WI 119, 283 Wis. 2d 639, 700 N.W.2d 98, in which the new evidence consisted of unrebutted DNA evidence that directly contradicted a piece of the State's trial evidence. See Hicks, 202 Wis. 2d at 171; Armstrong, 283 Wis. 2d 639, ¶ 109. Avery does not cite a case with new evidence of the type presented here where the court has concluded that there is a reasonable probability that the new evidence would cause the jury to have a reasonable doubt.
¶ 55. Not all new evidence entitles a defendant to a new trial. The test requires a reviewing court to look at all of the evidence and determine whether the new evidence would create reasonable doubt. The trial court did that here and should be affirmed.
II. New Trial in the Interest of Justice under Wis. Stat. § 752.35
¶ 56. As to the second ground, the Majority concludes that Avery is entitled to a new trial under Wis. Stat. § 752.35 on the ground that the real controversy was not fully tried because the jury did not hear the new photogrammetry evidence. In support of its conclusion, the Majority relies on Hicks.
¶ 57. I respectfully dissent because granting a new trial in the interest of justice is a power to be used "infrequently and judiciously," see State v. Ray, 166 Wis. 2d 855, 874, 481 N.W.2d 288 (Ct. App. 1992), and should only be done in "exceptional cases," see Hicks, 202 Wis. 2d at 161. This case does not meet the "exceptional" standard illustrated by Hicks. See id.
¶ 58. The real controversy here was identification and it was fully litigated at trial. The State presented *591two eyewitnesses and Avery's confession. Avery testified and recanted his confession and presented his alibi. Compare with id. at 153-56 (indicating that Hicks did not testify at his trial). The jury heard strong rebuttal to the State's identification evidence. Avery recanted his confession. Avery gave reasons why he confessed and why he wrote an unsolicited apology letter to his mother and why he asked to phone her to apologize. Avery presented his alibi himself and through witnesses. The jurors had the opportunity to hear all of that evidence and made their own credibility determination when they found him guilty. The real controversy was fully tried.
¶ 59. Avery's new evidence, an expert's scientific opinion, fails to meet the Hicks test for a new trial in the interest of justice. The court in Hicks held: "We cannot say with any degree of certainty that the hair evidence used by the State during trial played little or no part in the jury's verdict." Id. at 153. In reaching that holding, the supreme court observed that the State had "relied heavily," id. at 164, on the hair evidence at trial to prove Hicks' identification. The supreme court noted that Hicks' new DNA evidence directly "discredited]" the State's trial evidence. Id. at 171. The supreme court granted Hicks a new trial because it could not say "that the hair evidence used by the State during trial played little or no part in the jury's verdict." Id. at 158-59 (emphasis added).
¶ 60. The Majority paraphrases, and thus changes, Hicks' holding by saying that "[therefore, we must conclude that the real controversy was not fully tried where '[w]e cannot say with any degree of certainty that the [now challenged] evidence used by the State during trial played little or no part in the jury's verdict.'" See Majority, ¶ 37 (citing Hicks, 202 Wis. 2d *592at 153) (brackets in Majority opinion; emphasis added). There is no piece of "now challenged" evidence in this case.
¶ 61. Avery's new evidence merely "chips away" at identification generally. In contrast, the supreme court observed in Hicks that "this is not a case in which the evidence proffered by Hicks tended to chip away at the accumulation of evidence produced by the State to prove guilt." See id., 202 Wis. 2d at 171. The implication of the supreme court's statement is that "chipping away" type evidence is insufficient to warrant a new trial. To warrant a new trial, the court found that the evidence must "discredit[] one of the pivotal pieces of evidence forming the foundation of the State's case." Id. (emphasis added). That is not the case here.
¶ 62. Here, Avery's new evidence fails to "discredit[]" any particular piece of the State's evidence. There was no photogrammetry evidence at trial. The State's identification evidence was based on the two eyewitnesses and Avery's confession. Avery's new evidence merely "chips away" at identification generally, but does not "discreditD one of the pivotal pieces" of the State's trial evidence and therefore does not warrant a new trial under Hicks. See id.
¶ 63. Additionally, granting a new trial for every new scientific discovery that "chips away" but does not discredit evidence offered at trial is contrary to long-established judicial policy favoring finality and consistency. See Love, 284 Wis. 2d 111, ¶ 58 ("After a defendant's trial and appeal rights have been exhausted, however, our system must become attentive to finality, and to the significant costs in time and money of never-ending challenges to the defendant's conviction. Public resources are limited.") (Prosser, J., dissenting) (citations omitted); see also Armstrong, 283 Wis. 2d *593639, ¶ 180 ("In doing so, the majority opinion misapplies our precedent and equates the idea of the ‘matter not being fully tried' with new scientific identification procedures in a way that threatens to reopen convictions statewide every time a scientific improvement occurs, regardless of the lack of a probable effect on the issues underlying the jury's verdict.") (Roggensack, J., dissenting). Applying the test as the Majority would, will lead to mandatory retrials every time there is a new scientific "breakthrough," regardless of whether there is any probable effect on the outcome of the retrial. This lack of finality would undermine the justice system given the very limited public resources. I believe that the record shows that the real controversy, identification, was fully tried, showing no basis for a new trial in the interests of justice. Accordingly, I would affirm the trial court.