There is no doubt that in many cases, defenders attempt to retry by merely reassessing previous evidence. The problem is that the courts will not allow a retrial even if it is not simply a reassessment of earlier evidence, but the new (private expert) opinion is based on aspects (facts) not previously examined at all or, more often, on (partially) different substantive findings. In many cases, the expert opinions referred to in a motion for reconsideration therefore not only challenge issues relating to the methodology or findings of the previous expert opinions, but also formulate new conclusions by presenting new facts. For this reason, a judicial finding that “the same evidence from a different source, obtained by a different means of proof, is not new evidence” can only be justified if the subsequent evidence in question is not based in part on new facts, but merely concerns facts already considered relevant, remains within the framework of those facts, and seeks to reassess or alter the probative value of the earlier evidence on those facts. This is the case with the reference in the application for revision to a medical diagnosis or an IMEI opinion which was already known in the main proceedings, but which the court did not give the same weight as the applicant claims it should have.3

A common reason given for the court’s rejection of motions to reopen is therefore that “the motion to call a new expert was already heard in the main proceedings and is therefore not new evidence” or “the motion to suppress evidence is the material of the trial and the purpose of the reopening procedure is not to replace evidence that the court in the main proceedings found to be unnecessary.”4 However, this is clearly not always the correct conclusion based on the above. It is another matter that if a private expert opinion has already been used by the court in the main proceedings in accordance with the rules of documentary evidence, it is (documentary) evidence that has already been assessed by the court in the main proceedings. Therefore, the motion for a rehearing seeking the subsequent inclusion of this expert in the proceedings is manifestly unfounded.