法学研究方法作业
The Forgotten Dinner Guest:
The "Beyond a Reasonable Doubt"
Standard in a Motion for a Judgment
of Acquittal in a Federal Bench Trial
Jared Kneitelt
Abstract
In comparison to civil trials, criminal trials are decided on more stringentstandardsofproof However, motionsforjudgmentofacquittal in criminal non-jury trials are currently decided on a mere legal sufficiency standard as opposed to the "beyond a reasonable doubt" standard. This Article examines the lack ofreasoning and uniformity in deciding these motions as well as the potential dangers and injustices posed to a defendant by applying a lower standard. Through an examination of both domestic andforeign law, the author argues for the
application ofthe "beyond a reasonable doubt "standard when determining motions for judgment of acquittal in criminal non-jury trials.
Welcome to the Dinner Party: Introduction
The standard for judging a civil trial is lower than the standard for
judging guilt in a criminal trial, and there is no jury in a non-jury trial.
Somehow-despite these two very obvious conclusions-the nineteenth
century standard for determining a motion for a directed verdict in a civil
jury trial is still applied to our modem motion for a judgment of acquittal
in a criminal non-jury trial.
In a criminal trial, at the close of the government's case-in-chief, the
defense may make a motion for a judgment of acquittal on one or more
offenses charged.' If the motion is unsuccessful and the defense calls
a case, the defense may make another motion for ajudgment of acquittal
at the close of its case.This Article concerns only the motion at the end
of the government's case. At present, the motion will succeed only if the
government has not presented legally sufficient' evidence of all the
elements of the particular offense or offenses.
This Article discusses why, in a non-jury trial, the "beyond a reasonable
doubt" standard should be applied-instead of merely the legal
sufficiency standard-when the bench considers a motion for ajudgment
of acquittal. Not knowing whether the government has proven-in the
judge's mind-the defendant's guilt before inviting the defendant to call
a case actually militates against the presumption of innocence, the
assurance that the government discharges its burden, and the defendant's
right to remain silent.
This Article shows that the jurisprudence in the United States
improperly cites, for the standard for determining whether to grant or
deny a motion for a judgment of acquittal in a non-jury trial, either the
standard in a jury trial or the standard for appellate review. This Article
examines the historical (lack of) development of the motion for a
judgment of acquittal and the perceived constitutional preclusion against
the "beyond a reasonable doubt" standard. Namely, the bench-as the
arbiter of law-cannot usurp a defendant's Sixth Amendment protection
to be tried on the facts by a jury of his peers.' Of course, in a non-jury
trial, the bench is both the arbiter of law and fact-finder;' hence, there
is no Sixth Amendment preclusion.
At present, there is no rule in the Federal Rules of Criminal Procedure
explicitly governing a motion for ajudgment of acquittal in a bench trial.
Is it Rule 236 ("Jury or Nonjury Trial") or Rule 29' ("Motion for a
Judgment of Acquittal [in a Jury Trial]") that governs the motion?
Although district court judges in almost all of the reported decisions
assume Rule 29 governs, there are several cases in which district court
judges have turned to Rule 23 as the governing statute.' Further, even
among the authors of treatises on the Federal Rules of Criminal Procedure,
there is disagreement as to what Rule governs.' Wright's Federal
Practice and Procedure discusses a motion for a judgment of acquittal
in a bench trial under Rule 29.o Yet Moore's Federal Practice states,
"Rule 29 has no real application when a case is tried by the court since
the plea of not guilty asks the court for a judgment of acquittal.""
This Article concludes by proposing a new Rule 29(e) to resolve this
ambiguity and to make clear that the "beyond a reasonable doubt" standard
is the standard that should be employed in determining a motion for
a judgment of acquittal in a bench trial.
I. By Invitation Only: Respondez S'il Vous Plait
A criminal defendant is not guilty unless proven guilty; the government
bears the burden of proving the criminal defendant guilty beyond
a reasonable doubt; " and the government (not the defendant) must
introduce evidence sufficient to persuade the fact-finder, beyond a
reasonable doubt, ofthe defendant's guilt.14 Thus, ifthe government does
not introduce evidence to prove the defendant guilty beyond a reasonable
doubt, then the defendant is not guilty.
At the conclusion of the government's case, the government's case
will presumably-and in almost all circumstances-be at its highest. If
the government has not proven its case beyond a reasonable doubt after
the presentation of its evidence, when will it ever be able to prove its case
beyond a reasonable doubt? This begs the very simple question: If the
defendant is not guilty at the conclusion of the government's case-inchief,
why should the defendant be "invited" to call a defense?
Although the government may have presented legally sufficient
evidence of the offenses charged, the judge still may not find at the close
of the government's case that the government proved its case beyond a
reasonable doubt. For example, the judge may find the accounts of the
government witnesses to be unworthy of belief (either alone or in
combination) or circumstantial evidence presented to be too circumspect
to sustain a conviction. As always, the government must prove its case
beyond a reasonable doubt. This burden is without the assistance of any
defense evidence (including the defendant's testimony)."
Effectively, "inviting" the defendant to call a defense case-despite
the uncertainty of whether the government has proved its case beyond
a reasonable doubt at the close of its case and whether the judge would
have acquitted the defendant of an offense charged-reduces the govemment's
burden at that stage. This "invitation" to the defendant to call
defense witnesses or for the defendant to testify on his own behalf
militates against the government's obligation to prove its case. Such an
invitation should be correctly considered as not only a reduction of the
government's burden (and therefore impermissible burden shifting) but
also a violation of due process.'
Elevating the government's burden at the motion for a judgment of
acquittal stage to beyond a reasonable doubt actually strengthens the
presumption that the defendant is not guilty and properly holds the
government to its burden. This strengthens the requirement that the
government prove its case based solely on its own evidence and without
the assistance of the introduction of a defense case.
1I. The Forgotten Dinner Guest:
Historical Development of the
Motion for a Judgment of Acquittal
The motion for ajudgment of acquittal in criminal suits evolved from
its counterpart in civil procedure. Federally, in the late 1700s, civil
judges could withdraw a civil case from ajury and decide the case; then,
the common law motion for non-suit came; and finally, in the midnineteenth
century, the civil motion for a directed verdict emerged. 7
"The motion for judgment of acquittal in criminal cases came still later
and was probably influenced by these earlier developments in the civil
trial."" "The early cases directing acquittal did so without citing any
authority but apparently assumed such power was inherent in thejudge's
role as presiding officer."' 9
Indeed, Moore's Federal Practice states that Rule 29 ("Motion for
a Judgment of Acquittal" in ajury trial) of the Federal Rules of Criminal
Procedure was modeled on Rule 50 of the Federal Rules of Civil
Procedure.20 "Thus, a motion for acquittal [in a jury trial] is equivalent
to a motion for a directed verdict (now called 'judgment as a matter of
law' under Civil Rule 50), or judgment notwithstanding the verdict
(judgment n.o.v.) under pre-Rules practice." 2 1
However, there still remains no legislation specifically directed
towards a motion for a judgment of acquittal in a criminal bench trial.
This is due to legislative oversight based, seemingly, on the mere
importation of the standards employed in a civil jury trial into a criminal
non-jury trial without appropriate consideration for the defendant's
exposure to a deprivation of his liberty, his right to remain silent, the
government's burden ofproving the defendant guilty beyond a reasonable
doubt rather than by a preponderance, and the presumption of the
defendant's innocence.
III. The Head of the Table:
The Prevailing Legal Sufficiency Standard
The standard for judging a motion for a judgment of acquittal-in a
jury trial at least-is based on Burks v. United States." "The prevailing
rule has long been that a district judge is to submit a case to the jury if
the evidence and inferences therefrom most favorable to the prosecution
would warrant thejury's finding the defendant guilty beyond a reasonable
doubt."23 "Even the trial court, which has heard the testimony of witnesses
first hand, is not to weigh the evidence or assess the credibility
of witnesses when it judges the merits of a motion for acquittal."24 This
view is accepted on the Sixth Amendment right that a defendant be tried
by a jury of his peers. In jury trials, the court cannot substitute its
judgment for that of the jury.25 To do so would usurp the power of the
jury and violate the Sixth Amendment guarantee to be tried by one's
peers26 as well as the Fifth and Fourteenth Amendments' due process
protections.
To date, however, the Supreme Court has not considered the standard
on a motion for a judgment of acquittal in a non-jury trial. This might
be because esteemed and erudite practitioners have effectively written
off considering the "beyond a reasonable doubt" standard in bench trials
and, as such, the issue has not reached the Supreme Court. For example,
Section 467 of Wright's Federal Practice and Procedure states, "A
motion for judgment of acquittal at the close of the prosecution's
evidence in a case tried to the court is considered by the same standard
as in ajury case."29 However, none of the cases Wright relies on for this
proposition in Section 467 are on point.
IV. The Unwelcome Guest:
When Wright Is Wrong
For support, Wright cites United States v. Salman,o United States v.
Pierce, 3 ' United States v. Magallon-Jimenez, 32 United States v. Carter,"
and UnitedStates v. Stubler34-none ofwhich were decided by the United
States Supreme Court. Salman involved a pre-trial dismissal of an
indictment." Pierce involved the test to be applied in appellate review"
of the sufficiency of evidence after a trial, jury or bench, and quoted
Jackson v. Virginia for the appellate standard." Thus, Pierce did not
concern a determination by the trial court on a motion for acquittal."
Both Magallon-Jimenez and Carter held that, in both jury and bench
trials, "there is sufficient evidence to support a conviction if, viewing the
evidence in the light most favorable to the [government], any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt."" As with Pierce, Magallon-Jimenez and Carter
concerned the appellate review of the sufficiency of the evidence and did
not relate to a determination of a motion for acquittal at trial level.40
Out of those five cases, Stubler was the only one that happened to be
a bench trial.4' In Stubler, the defendant moved for a judgment of
acquittal after he was convicted.42 The district court held that "Rule 29
of the Federal Rules of Criminal Procedure allows for a motion for
judgment of acquittal[, and] [t]he standard the court must apply is
whether 'the evidence is insufficient to sustain a conviction."" Further,
the district court held "this standard remains the same [even in] a non-jury
trial."' In a surprise demonstration of a lack of understanding of the
standard-Stublerc ited civil case law regarding the Age Discrimination
in Employment Act to support that holding.4 5
Wright's Federal Practice and Procedure demonstrates-by its citation
to these inapposite cases-that it has not appropriately analyzed the
jurisprudence in making its assertion that the standard in a bench trial is
the same as in ajury trial. None of these cases concern a trial-level determination
of a motion for a judgment of acquittal in a bench trial at the
conclusion of the government's evidence. Thus, Wright has propounded
a baseless proposition on a mere cursory examination, preventing a
proper analysis of the standard. A more thorough examination is
warranted.
V. A Nostalgic Affair:
Let Us Go Back to Camp
In the United States, there are only three cases found to date in which
the "beyond a reasonable doubt" standard was discussed in a bench trial:
United States v. Camp,46 United States v. Laikin,4 and United States v.
Cascade Linen Supply Corp. of New Jersey.8
In Camp, a two-defendant case tried before a district judge, a motion
for ajudgment of acquittal was made after the close of the government's
evidence and before either defendant put on a case.49 The court expressly
considered whether the standard on the motion should be "whether the
evidence was insufficient to sustain a conviction" and held, "logically,"
that standard meant whether the government's evidence proved the
defendant guilty beyond a reasonable doubt.o According to the court,
if the government did not prove the defendant guilty and the case were
to proceed, continuing with the case
would put upon the defendant the risk that by his own evidence, as by
testimony produced on cross-examination, he might supply the evidence
which convinces the trier of fact of his guilt, where absent such evidence
the trier of fact would not be so convinced. To subject the defendant in a
criminal case to such a risk would be contrary to the principles by which the
criminal law has developed in [the United States]. It would in effect require
the defendant to assist in providing a vital element of the evidence which
convicts him."
Thus, Camp allowed for a coordinated effort of (1) the presumption of
innocence, (2) the government's evidentiary burden of proving the
defendant guilty (if it can), and (3) the defendant's right to remain silent
to protect the defendant from conviction."
While Camp's reasoning appears sensible, some courts have expressly
rejected the Camp logic. In Laikin, the defendant in a bench trial
requested the court to consider whether, on his motion for a judgment
of acquittal, the government's evidence proved him guilty beyond a
reasonable doubt. The Laikin court, citing the Seventh Circuit case of
United States v. Feinberg5,4 held that the correct standard is taking the
government's evidence in the light or aspect most favorable to the
government." The Feinberg" court, in making its holding, cited Glasser
v. United States,57 United States v. Velasco," and United States v.
DeNiro.9 However, Glasser, Velasco, and DeNiro each refer to the
standard of appellate review.60
United States v. Cascade Linen Supply Corp. of New JerseyP' similarly
declined to follow Camp.62 The defendants in a bench trial moved
forjudgments of acquittal after the close of the government's evidence.
Camp was not followed in Cascade Linen because the district judge
held-without citing any authority-that determining whether the government
proved its case beyond a reasonable doubt at the close of the
government's case would "severely impair the orderly disposition of the
issues."" The judge also held, again without citing any authority, that
determining the motion using the "beyond a reasonable doubt" standard
"would be tantamount to submitting the evidence to the trier of the facts
twice. To this defendants are not entitled."65
The judge further indicated, without discussion, that "[he was] unable
to understand [the] defendants' contentions that the presumption of their
innocence and their right to remain silent and offer no proof [were] in
some way diminished or impaired by [his] ruling."6 From the language
and tone in Cascade Linen, it appears the judge was eager to convict the
defendants. Indeed, after the defendants' respective motions for judgment
of acquittal were denied, the defendants rested.' They were then
convicted.68
Herein lies the problem. The court can readily deny a motion for a
judgment of acquittal. Upon this denial, the defendant is still left to
speculate and guess whether the government satisfied its burden-on the
government's evidence-of proving the defendant guilty beyond a reasonable
doubt. Thus, not knowing whether the government has discharged
its burden leaves the presumption of innocence and the defendant's
right to remain silent in competition with the government's
obligation to discharge its burden when, in fact, these three aims should
be cooperating with one another.
VI. Pass the Salt:
The International Tribunals-An Exercise
in Impermissible Burden Shifting
As a comparative study, consider that the proceedings before international
war crimes tribunals are bench trials." Although in a number of
instances the "beyond a reasonable doubt" standard was argued by
defense counsel on a motion for a judgment of acquittal at the close of
the government's case,70 the use of the legal sufficiency standard became
settled law. Unfortunately, this was without the benefit of any real
analysis.
The Appeals Chamber Judgement in Prosecutor v. Jelisid" is the
leading case among the international tribunals" for use of the legal
sufficiency standard in determining a motion for a judgment of
acquittal-known as Rule 98 biS73-at the close of the prosecution's
evidence.
The Appeals Chamber inJelisid followed74 its prior Appeals Chamber
Judgement in Prosecutor v. Delalid," which in turn cited the Appeals
Chamber Judgement in Prosecutor v. Tadie," the Appeals Chamber
Judgement in Prosecutor v. Aleksovski,n and the Trial Chamber's
"Decision on Motion for Acquittal" in Prosecutor v. Kunara78 for
support.
However, those portions of Aleksovski and Tadid referred to by the
Delalid Appeals Chamber Judgement concern the standard of appellate
review in determining whether a trial chamber's factual finding can
withstand appellate scrutiny-that is, legal sufficiency.79 As such, Tadid
and Aleksovski are incorrectly cited by Delalid for the proposition that
the standard a trial court sitting without a jury should use to determine
a motion for a judgment of acquittal is also legal sufficiency."
The Trial Chamber's "Decision on Motion for Acquittal" in Prosecutor
v. Kunara6 held--citing the Trial Chamber's "Decision on Defence
Motions for Judgement of Acquittal" in Prosecutor v. Kordi8 '-that the
appropriate test to be applied on a motion for a judgment of acquittal
"was not whether there was evidence which satisfied the Trial Chamber
beyond reasonable doubt of the guilt of the accused (as the defence in
that case had argued), but rather it was whether there was evidence on
which a reasonable Trial Chamber could convict." 82
All things considered, the Trial Chamber in Kunaral did its best not
to impugn the prior jurisprudence on the issue. Thus, Kunarad, shifting
the burden of proof off the shoulders of the prosecution, noted-without
citing any authority-that
[i]f the Trial Chamber were entitled to weigh questions of credit generally
when determining whether a judgment of acquittal should be entered, and
if it found that such a judgment was not warranted, the perception would
necessarily be created (whether or not it is accurate) that the Trial Chamber
had accepted the evidence of the prosecution's witnesses as credible. Such
a consequence would then lead to two further perceptions: (1) that the
accused will bear at least an evidentiary onus to persuade the Trial Chamber
to alter its acceptance of the credibility of the prosecution's witnesses, and
(2) that the accused will be convicted if he does not give evidence himself.
He would virtually be required to waive the right given to him by the
Tribunal's Statute to remain silent.83
An analysis ofKordi--the case spawning the seminal misunderstanding
of the proper application of a motion for a judgment of acquittal at the
international tribunals-is thus warranted.
First, the Trial Chamber in Kordid seemed satisfied that because other
trial chambers at the International Criminal Tribunal for the former
Yugoslavia were using a standard lower than beyond a reasonable doubt,
using a lower standard was the appropriate thing to do." Without any
analysis, the Trial Chamber indicated that "[i]mplicit in Rule 98 bis
proceedings is the distinction between the determination made at the
halfway stage of the trial, and the ultimate decision on the guilt of the
accused to be made at the end of the case, on the basis of proof beyond
a reasonable doubt."" The Trial Chamber failed to provide any basis or
reasoning for that distinction.
Next, the Kordid Trial Chamber looked to the Trial Chamber's
"Decision on Defence Motion to Dismiss Charges" in Prosecutor v.
Tadid," the Trial Chamber's "Order on the Motions to Dismiss the
Indictment at the Close of the Prosecutor's Case" in Prosecutor v.
Delali6," the Trial Chamber's "Decision of Trial Chamber I on the
Defence Motion to Dismiss" in Prosecutor v. Blaikid," and the Trial
Chamber's "Decision on Motion for Withdrawal ofthe Indictment against
the accused Vlatko Kupregki6" in Prosecutor v. Kupregkid."
The Trial Chamber in Tadid merely held-without citing any
authority-that, because it would ultimately determine whether each
count was proven beyond a reasonable doubt at the conclusion of the
entire case, it would only determine whether the evidence presented was
legally sufficient."o
In Delalid, the Trial Chamber held that a motion for judgment of
acquittal will be denied if, "as a matter of law, there is evidence before
it relating to each of the offences in question for the accused persons to
be invited to make their defence."9' There was no analysis as to the
foundations for this principle nor did this decision cite any jurisprudence.
After citing Tadi6 and Delalid, the Trial Chamber in Blakd.W held:
CONSIDERING that, on these legal foundations, based on a strict application
of the spirit and letter of the Rules, the Trial Chamber limits the review
of the Motion:
[1] in fact: to the mere hypothesis that the Prosecutor omitted to provide
the proof for one of its counts;
[2] in law: to the mere hypothesis that the Prosecution failed to show a
serious prima facie case in support of its claims.
That decision was made without any legal analysis as to the foundations
for this principle nor did the decision cite any jurisprudence for that
Holding.
Lastly, the Trial Chamber in Kupregkid merely referred to the test
enunciated in Tadid and dismissed the motion to withdraw the indictment
because the Trial Chamber was of the opinion that there was "evidence
as to each count charged in the indictment, which were it to be accepted
by [the] Trial Chamber, could [have] lawfully support[ed] [the] conviction.""
Other than referring to Tadi6, the Kupreikid Trial Chamber did
not provide any legal support for that standard.
Kordid then examined the practice in five domestic jurisdictions-
England and Wales,94 Canada," Australia," the United States, 97 and
Spain 9 8-and found "the test that is applied on motions for acquittal at
the end of the Prosecution's case is not the high standard of proof beyond
[a] reasonable doubt. 9 However, the practice referred to in England and
Wales, the United States, and Spain is in relation tojury trials, not bench
trials.'o As explained above, the low legal sufficiency standard is used
in jury trials because the judge is precluded from usurping the factfinder's
role. As such, the jury trial practice in these jurisdictions
provides Kordid no support. Next, Australian practice allows for ajudge
to acquit a defendant after the close of the prosecution's case'o' and is
in direct contradistinction to Kordid.
Finally, Canadian practice is the lone exception that does provide some
support for Kordid's proposition. However, in Canada-per statutory
requirement-the fact-finder can only render a verdict after the defendant
declares, after the prosecution's evidence, whether the defendant intends
to call a defense case (and upon such an affirmative declaration, after
hearing the defense evidence).102 Notably, there is no such requirement
in the Rules of Procedure and Evidence at the international tribunals nor
in the Federal Rules of Criminal Procedure in the United States. Consequently,
Kordid's citation to Canadian procedure does not support
Kordid's proposition.
Ultimately, what happened at the international level was that a meager
legal analysis emanating from the domestic practice in jury trials was
applied to the motion for a judgment of acquittal in non-jury trials. Of
course, the jurisprudence demonstrates worry that the court would usurp
thejury's function and, as such, would allow only for a court's determination
as to legal sufficiency on a motion for ajudgment of acquittal. This
led to a fundamental misunderstanding of how such a motion should be
decided in non-jury trials and a failure to recognize that it is impossible
for trial judges to usurp the fact-finder's function because the trial judges
themselves are the fact-finders.
Further propounding this misunderstanding was (1) the misapplication
of the standard of appellate review (as in Tadid and Aleksovski) as the
standard for a trial court's determination, (2) reliance on a "consistent
pattern" in the jurisprudence of solely a legal sufficiency standard
(although this pattern developed without any forethought),' and (3) a
demurrer to the trial chambers' ultimate responsibility of determining
guilt beyond a reasonable doubt at the close of the trial. What remains
is a very low hurdle for the prosecution to meet for a motion for a
judgment of acquittal to be denied. Thus, "since the denial of such a
motion is, in no sense, an indication of the view of the Chamber as to the
guilt of the accused on any charge, little meaningful guidance is provided
to the accused in connection with his defence case.""
As highlighted in Kunara6, the jurisprudence implicitly prefers-in
attempts to avoid the twin perceptions that the accused has to persuade
the trial chamber "to alter its acceptance of the credibility of the prosecution's
witnesses" and that "the accused will be convicted if he does not
give evidence himself'-the defense to call a case instead of holding the
prosecution to its evidentiary burden of proving the defendant guilty. 05
It should be the opposite. The government should be held to its
burden. If, and only if, the government has satisfied its burden ofproving
the defendant guilty beyond a reasonable doubt, the defendant may then
choose to waive his right to silence. Indeed, if the trial chamber finds
that the defendant is guilty beyond a reasonable doubt, the government
has discharged its burden.
VII. The Invitee: The Proposed Rule 29(e)-
"Motion for a Judgment of Acquittal,
Nonjury Trial"
To remedy the problems previously discussed, the author proposes
the following addition to Rule 29:
(e) Nonjury Trial. After the government closes its evidence, the
court on the defendant's motion must enter a judgment of acquittal
of any offense on the ground that the government did not prove that
the defendant is guilty of such offense beyond a reasonable doubt.
Note, with this proposed rule, the defendant may-but is not required
to-make a motion for a judgment of acquittal. Further note that the
language in the proposed Rule 29(e) would require the court, upon such
a motion, to make a decision-without reservation-on the motion.
Of course, if acquitted on one or more counts, double jeopardy
attaches. If the bench indicates, upon decision of the motion, there will
be a conviction on one or more counts, the defendant may elect to call
a case and may elect to testify. The proposed rule does not include the
prospect for a defendant to make a motion at the conclusion of the
evidence.'o
Just Desserts: Conclusion
"[I]t may fairly be said, that, so soon as a man is arrested on a charge
of crime, the law takes the prisoner under its protection, and goes about
to see how his conviction may be prevented."' Elevating the standard
in determining a motion for a judgment of acquittal from prima facie to
beyond a reasonable doubt is the "forgotten" protection that a criminal
defendant deserves. Odd would be the prosecutor who would fuss about
elevating the standard. After all, the government bears the burden of
proving the defendant guilty beyond a reasonable doubt, and if the
government cannot do so on its own evidence, the defendant must be not
guilty.
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