Put it in Writing? Effective Judgment of Acquittal Motions

Most of us are familiar with the fact that a trial court can enter a judgment of acquittal in both state and federal court if the prosecution fails to introduce sufficient evidence from which a reasonable jury could find proof beyond a reasonable doubt. The rule is set out in Rule 29 of both the Tennessee and Federal Rules of Criminal Procedure.

The issue is how to make the motion mean something. To be successful, it should be more than just standing up to say that the prosecution’s proof failed.

The issue at the Rule 29 stage is whether the prosecution has introduced sufficient proof on each element of the offense. As such, a Rule 29 motion is fact dependent. That does not mean, however, that the legal standard should be ignored. In order to determine whether the prosecution has introduced sufficient proof on each and every element, it is necessary to determine what the elements are. Therefore, the legal standard can sometimes be the most important section in a motion for judgment of acquittal. In fact, judgment of acquittal is probably most common when the prosecutor and the judge do not agree on the elements of the offense.

Rule 29 motions are generally oral and often considered perfunctory. However, where there is a significant legal question that must be decided in order to judge if the prosecution introduced sufficient proof on each element, consider filing a short written motion.

How do you draft an effective written judgment of acquittal during the heat of trial? Generally, you don’t. Chances are slim that counsel is going to be in a position to draft a masterful Rule 29 motion during trial. The motion can be drafted pre-trial, using the facts as anticipated. The factual recitation will be general, but specifics can be provided during argument. The best time to prepare a written motion is when jury instructions are being drafted. Counsel will be researching the elements anyway, and the requested jury instructions can be incorporated into a legal memorandum.

Because it is difficult to anticipate when the prosecution will rest, it may be tricky to finalize and file the draft. If necessary, a preliminary written argument can be provided to the court. The document does not have to be filed in the Clerk’s office to be effective. It can be handed to the judge before argument on the motion. In federal court, the motion can be readied for electronic filing at a break, or it can also simply be proffered to the judge at the time the oral motion is made and used as an exhibit.

Make it short. As Justice Scalia and Bryan Garner point out, the amount of time a judge spends reading a brief is often inversely proportionate to its length.[1] While it should not be a tome, if there is strong authority indicating that the case should not proceed, it should be set out in writing and ready to file.

A written motion can also send a signal that there is a real issue in the case. Writing it also helps prevent the common mistake of forgetting to argue a point while on your feet.

Timing matters

The motion should be made as soon as the prosecution rests. Because a Rule 29 motion can be filed and briefed after the verdict, you might be tempted to wait to submit a written brief after the trial when you have more time to prepare it.[2] Waiting could be a big mistake. A post-verdict judgment of acquittal has different consequences. In both state and federal cases, the prosecution can appeal a post verdict judgment of acquittal. If the appellate court disagrees with the trial court, the conviction is simply reinstated. That happened to the defendants in United States v. Renick,[3] where the district judge reserved ruling on the motion for judgment of acquittal at the close of the government’s proof, but noted he was inclined to grant it. The court then granted a post-verdict judgment of acquittal, but the defendants’ acquittal was short-lived when the Eleventh Circuit ordered the conviction reinstated. On the other hand, pre-verdict judgments of acquittal have the same effect as an acquittal by the jury and cannot be appealed.

Also, defense counsel should push hard for judgment of acquittal before the defense proceeds with proof. As long as the motion is renewed after the close of proof, the denial of a Rule 29 motion can be appealed, but in state court will be judged according to the entirety of proof.[4] Therefore, if defense counsel feels that judgment of acquittal should have been granted at the close of the prosecution’s proof, counsel has to make an important tactical decision about whether to put on proof if there is a chance that defense proof could fill in the gap.

Remember, too, that “[a] judgment of acquittal is not an all or nothing proposition. A court may grant a judgment of acquittal as to the higher charge and proceed on a lesser-included offense.”[5]

Finally, whether oral or in writing, defense counsel must make the motion at the close of the prosecution’s proof and renew it, if necessary at the close of the proof.[6] Put it in your trial outline in bold and capital letters.

Prosecutors, on the other hand, should attempt to persuade the court to defer deciding the motion until after the verdict. That way an erroneous judgment can be appealed.

Notes

  1. Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges, Thomson/West, 1st Ed., 2008, p. 98.
  2. In federal court, the rule specifically provides that the court can defer ruling on the original motion for judgment of acquittal at the close of the government’s proof and even decide the motion (on the basis of the record at the time of the motion) post-verdict. F.R.Crim.P. 29(b). The Tennessee rule anticipates the court ruling on the motion at the close of the state’s proof but authorizes reserving decision on a motion made at the close of all the evidence. T.R.Crim.P. 29(d)&(e); Finch v. State, 226 S.W.3d 307, 313 (Tenn. 2007)(noting that there is no authority to take the Rule 29 motion under advisement at the conclusion of the State’s proof).
  3. United States v. Renick, 273 F.3d 1009 (11thCir. 2003).
  4. State v. Gilley, 297 S.W.3d 739, 763 (Tenn.Crim.App. 2008).
  5. Finch v. State, 226 S.W.3d 307, 318 (Tenn. 2007).
  6. When a Rule 29 motion is made post-trial, it should be accompanied by a 13th juror motion, which deals not with sufficiency of the evidence, but the weight of the evidence. When the judge makes the determination as the 13th juror, the proof is not taken in the light most favorable to the prosecution. Fed. R. Crim. P. 33(a); Tenn. R. Crim. P. 33(d); State v. Carter, (Tenn. 1996); United States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988).

Wade Davies WADE DAVIES is the managing partner at Ritchie, Dillard & Davies PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.