(concurring specially)—I am constrained to concur specially in light of my brother Alexander's dissent, and because I believe the particular ground upon which the trial judge granted a new trial is much misunderstood.
What we have in the instant case is, purely and simply, a question of expert witness competency. Experience has taught us that such "experts" rarely agree. What may be a crucial "fact" to one, may not be to another.
Before affirming the grant of a new trial because the defense expert presented at trial overlooked or thought unimportant a fact or facts now deemed pertinent by an expert who did not testify, we must ask whether all of those defendants who could now unearth a new expert, who finds "new facts"—which if believed by the same jury might cause them to acquit—were denied a fair trial, i.e., failed to receive substantial justice. Surely we have to answer in the negative, or finality goes by the boards and the system fails.
The "fair trial" spoken of in Baxter v. Greyhound Corp., 65 Wn.2d 421, 397 P.2d 857 (1964), cited by the dissent, refers to the now—the actual trial viewed from the present, and not from the future. In other words, unless there was some particular mischief worked against the defendant such as, e.g., keeping from the jury known favorable evidence, *618the ineffectiveness of counsel, or some other violation of due process, the trial has in fact been fair and substantial justice has been accorded. Evidence such as that belatedly offered here must not be entered into the equation, except insofar as it qualifies as newly discovered evidence under CrR 7.6(a)(3).4
The dissent relies upon several factors adopted in Baxter v. Greyhound Corp. for determining whether the losing party has received a fair trial. Prominent among those factors is "the degree and nature of the prejudicial incidents." Baxter, at 441. I submit that the "incidents" spoken of are those occurring during the trial, both on and off the record, the type of incident or occurrence which can be made the subject of the trial judge's "definite reasons of law and facts." CrR 7.6(d). The dissent, however, at page 621 conveniently chooses to ignore this critical factor.
Finally, we must not forget the admonition of Knecht v. Marzano, 65 Wn.2d 290, 297, 396 P.2d 782 (1964) that "the granting of new trials for the lack of substantial justice should be relatively rare, especially since [former Rule of Pleading, Practice and Procedure 59.04W] gives eight other broad grounds for granting new trials."
When defendant's trial is examined—without regard to what might have happened if Kniseley had testified—and in the absence of some "prejudicial incident," defendant was afforded substantial justice. It was error to grant a new trial.
Alexander, J. (dissenting)—I agree with the opinion of the majority in part. However, I disagree with a major element of the opinion and, thus, I respectfully dissent from the holding.
*619I readily concur with the majority insofar as it holds that the defendant is not entitled to a new trial pursuant to CrR 7.6(a)(3). The "newly discovered evidence" that the defendant seeks to introduce at a new trial could have been discovered before the trial with the exercise of "reasonable diligence." The trial judge erred in holding otherwise.
However, I do not believe that the trial judge erred in concluding that a new trial should be granted the defendant for the reason that "substantial justice has not been done." CrR 7.6(a)(8). A trial court has discretion to order a new trial for failure of substantial justice. Zorotovich v. Washington Toll Bridge Auth., 4 Wn. App. 801, 484 P.2d 928, rev'd on other grounds, 80 Wn.2d 106, 491 P.2d 1295 (1971). In my judgment, when that same "newly discovered evidence" is viewed under CrR 7.6(a)(8), it can only be said that it would be an injustice to not grant Evans a new trial.
The majority indicates that it fails to find in the trial court's findings and conclusions any "definite reasons of law and facts" justifying a new trial for reasons of "substantial justice." I find this statement somewhat surprising in light of the trial court's extensive findings and conclusions in which it summarizes the newly discovered evidence and finds that the evidence "would, if believed by the jury, necessarily result" in a verdict of not guilty. Admittedly, the trial judge did not predict that a new jury would believe the new evidence. However, that is understandable. One can certainly comprehend the reason why a trial judge would be reluctant to predict how a jury might evaluate a witness's testimony. In my view, the trial judge has gone as far as he needs to go in that regard.
CrR 7.6(a)(8) seems precisely suited to the situation we have here. In the final analysis, the purpose of a trial is to search for the truth in order to achieve a just result. Here, according to the trial judge who presided over this lengthy trial, if the new evidence is believed, justice has not been done. Of course, CrR 7.6(a)(8) should not be employed lightly. However, my review of the record convinces me that the trial court did not act precipitously and that it reached *620its conclusion carefully and judiciously.5
The proffered evidence that was to be presented by the new defense witness is not, as the majority indicates, simply a new opinion based on an examination of trial evidence. According to witness Kniseley's affidavit, he actually discovered new facts.6 These new facts were: (1) that no proper ground existed for the electrical entry box, because of the dry, sandy soil, and the fact that the sewer pipes were plastic; (2) that the aluminum grounding wire in the entry box was incorrectly connected; and (3) that the plastic thermostat box for the baseboard heater had melted during the fire. From these facts, Kniseley formed a belief that the clothes washer had shorted, causing heat at the improperly connected aluminum wire, and that this heat started the fire. He surmised that these flames, fanned by a draft from the open garage door, melted the thermostat box, thus destroying the thermostat and allowing an uninterrupted flow of electrical current into the baseboard heater. According to Kniseley, clothes were piled on the heater, and these ignited. The heat of this fire ignited other piles of clothing and dry material, thus creating two additional points of origin of the fire.
While this newly discovered evidence could have been discovered with due diligence, thus precluding its consideration as grounds for a new trial under CrR 7.6(a)(3), it is nevertheless substantial evidence that is strongly consistent with the defendant's innocence and inconsistent with his guilt.
In deciding whether to grant a new trial on the ground "[t]hat substantial justice has not been done", the crucial question is "whether the losing party received a fair trial." Baxter v. Greyhound Corp., 65 Wn.2d 421, 440, 397 P.2d *621857 (1964). The resolution of this question involves the consideration of several factors such as:
[T]he complexity of the issues, the length of the trial, the degree and nature of the prejudicial incidents, the nature and amount of the verdict, the cost of retrial, the probable results, the desirability of concluding litigation, and such other circumstances as may be apropos to the particular situation.
Baxter, 65 Wn.2d at 441. Accord, Olpinski v. Clement, 73 Wn.2d 944, 951, 442 P.2d 260 (1968).
In the present case, the evidence presented on the issue of arson was indeed complex and technical in nature. The newly discovered evidence, though equally technical, could shed valuable light on the critical question of whether or not the fire was accidental. The first trial resulted in a felony conviction for Evans, and it, thus, goes without saying that the consequence to Evans of the denial of a new trial motion is considerable. These factors weigh in favor of a new trial.
Balanced against those factors is the possibility that a jury might not be persuaded by Kniseley's evidence. In that case, employing hindsight, one could say that the majority was correct in reversing the trial court. A jury might, however, find that the evidence raises a reasonable doubt as to Evans' guilt. No one can predict with any precision what a jury will do. I for one would rest more easily if we permitted a jury to hear the evidence and determine the question of defendant's guilt or innocence based on a consideration of all relevant evidence. Considerations such as cost and finality pale in comparison to the possibility of a wrongful conviction, and the loss of one's freedom.
In reaching my conclusion that we should affirm the trial judge, I find it especially significant that a trial judge has much wider discretion in the granting of a new trial than in the denial of a motion for a new trial. As the court noted in State v. Taylor, 60 Wn.2d 32, 42, 371 P.2d 617 (1962):
The trial judge, by his very presence, is in a favored position. It has been reiterated in appeals from orders *622granting new trials in both civil and criminal cases that a much stronger showing is required to overturn an order granting the new trial than denying a new trial. The question is: Did the respondents have a fair trial? The trial judge thought that they did not. The question is not whether this court would have decided otherwise in the first instance, but whether the trial judge was justified in reaching his conclusion. In that respect, he has a very wide discretion.
Taylor, 60 Wn.2d at 42. In this case, this experienced trial judge observed firsthand the entire trial and the complex evidence introduced. From that superior vantage point, he came to the conclusion that substantial justice had not been done. We should be slow to question that judgment.
I am mindful of the fact that the newly discovered evidence here is the same evidence that I have conceded does not provide a basis for the grant of a new trial under CrR 7.6(a)(3). This fact, however, should not be fatal to Evans' motion on grounds that substantial justice has not been done. CrR 7.6(a)(8) is a separate ground from CrR 7.6(a)(3), and it should entail a separate analysis. Significantly, although a requirement of reasonable diligence is set forth in connection with CrR 7.6(a)(3), it is not mentioned in connection with CrR 7.6(a)(8).
In my opinion, the fact that the same evidence does not support a motion based on CrR 7.6(a)(3) does not preclude its consideration in support of a motion based on CrR 7.6(a)(8).7 I do not view the rules that strictly. Instead, I *623see the trial judge's duty to insure "substantial justice" as an overriding responsibility. CrR 7.6(a)(8) should be considered broadly to permit its use as a "safety valve" in cases where no other avenue is available to accomplish a just result. The criminal rules exist, after all, "to secure simplicity in procedure, fairness in administration, effective justice, ..." (Italics mine.) CrR 1.2.1 believe that the trial judge's finding that noncumulative newly discovered evidence exists, which "would, if believed by the jury, necessarily result" in a verdict of not guilty supports his conclusion that substantial justice has not been done. I would affirm the trial court for that reason and, thus, I dissent.
Reconsideration denied November 3, 1986.
Review denied by Supreme Court March 3, 1987.
The most common causes for granting a new trial "in the interest of justice" under Fed. R. Crim. P. 33 are serious juror misconduct, receipt by the jury of extrinsic, prejudicial information, governmental interference with communication between client and counsel during trial, and improper references to defendant's past criminal record. See 8A J. Moore, Federal Practice ¶ 33.02[4], Particular Grounds for New Trial "In the Interest of Justice" (2d ed. 1986).
Evans, in his brief, indicates that the judge stated in his oral decision that, "[tjhis is the first motion for new trial I believe that this court has granted in almost 131/2 years."
Kniseley stated in his affidavit: "No other investigator made any determination of [these] fact[s], and [they were] overlooked entirely."
In Berry v. Coleman Sys. Co., 23 Wn. App. 622, 596 P.2d 1365 (1979), a grant of a new trial on grounds of substantial justice was upheld. In Coleman, post-trial investigation by the plaintiff revealed that the defendant, which had prevailed at the trial of this products liability case, had received 31 complaints of injuries or occurrences similar to the plaintiffs claim, and that defendant had been a party to 13 legal actions involving products similar to the product supplied to plaintiff. The defendant argued that the trial court erred in granting the new trial motion because the test for "newly discovered evidence" had not been met. The court rejected the argument noting that the new trial had not been granted because of newly discovered evidence, but, rather, for reasons of substantial justice. The court said, "Coleman's cases are therefore inapposite, even though Coleman interprets 'substantial justice' as the equivalent of newly discovered evidence." Berry v. Coleman Sys. Co., 23 Wn. App. at 624.