法学研究方法作业


    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 nonjury 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 nonjury 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 nonjury trial
    Somehowdespite these two very obvious conclusionsthe 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 nonjury trial
    In a criminal trial at the close of the government's caseinchief 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 caseThis 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 nonjury trial the beyond a reasonable
    doubt standard should be appliedinstead of merely the legal
    sufficiency standardwhen the bench considers a motion for ajudgment
    of acquittal Not knowing whether the government has provenin the
    judge's mindthe 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 nonjury 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 benchas the
    arbiter of lawcannot usurp a defendant's Sixth Amendment protection
    to be tried on the facts by a jury of his peers' Of course in a nonjury
                                                                  
    trial the bench is both the arbiter of law and factfinder' 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 29o 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 factfinder beyond a
    reasonable doubt ofthe defendant's guilt14 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 presumablyand in almost all circumstancesbe 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 caseinchief
    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 casedespite
    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 chargedreduces 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 nonsuit 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
    Procedure20 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 nov) under preRules 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
    nonjury 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 acquittalin a
    jury trial at leastis 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
    doubt23 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 acquittal24 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 jury25 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 nonjury 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 case29 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 Salmano United States v
    Pierce 3 ' United States v MagallonJimenez 32 United States v Carter
    and UnitedStates v Stubler34none ofwhich were decided by the United
    States Supreme Court Salman involved a pretrial 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 MagallonJimenez 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 MagallonJimenez 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 level40
    Out of those five cases Stubler was the only one that happened to be
    a bench trial4' In Stubler the defendant moved for a judgment of
    acquittal after he was convicted42 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 nonjury
    trial' In a surprise demonstration of a lack of understanding of the
                                                               
    standardStublerc ited civil case law regarding the Age Discrimination
    in Employment Act to support that holding4 5
    Wright's Federal Practice and Procedure demonstratesby its citation
    to these inapposite casesthat 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 triallevel 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 Camp46 United States v Laikin4 and United States v
    Cascade Linen Supply Corp of New Jersey8
    In Camp a twodefendant 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 case49 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 doubto 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 crossexamination 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 Feinberg54 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 States57 United States v Velasco and United States v
    DeNiro9 However Glasser Velasco and DeNiro each refer to the
    standard of appellate review60
    United States v Cascade Linen Supply Corp of New JerseyP' similarly
    declined to follow Camp62 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
    heldwithout citing any authoritythat 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 entitled65
    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] ruling6 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
    convicted68
    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 burdenon the
    government's evidenceof 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 TribunalsAn 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 case70 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
    acquittalknown as Rule 98 biS73at 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 Aleksovskin 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 scrutinythat is legal sufficiency79 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 heldciting 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 notedwithout
    citing any authoritythat
    [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 silent83
    An analysis ofKordithe case spawning the seminal misunderstanding
    of the proper application of a motion for a judgment of acquittal at the
    international tribunalsis 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 heldwithout citing any
    authoritythat 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 sufficiento
    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 defence9' 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 BlakdW 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 Wales94 Canada Australia the United States 97 and
    Spain 9 8and 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 Canadaper statutory
    requirementthe factfinder 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 nonjury 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 nonjury trials and a failure to recognize that it is impossible
    for trial judges to usurp the factfinder's function because the trial judges
    themselves are the factfinders
    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 prefersin
    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 maybut is not required
    tomake 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 decisionwithout reservationon 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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