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    法学研究方法作业

    时间:2020-03-02 04:05:41来源:佩佩美文网 本文已影响 佩佩美文网手机站

    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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