BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
Go to Federal Manuals Table of Contents - Go to Benchbook Table of Contents

Section 2 - Plea Taking/Criminal Trial

    2.10 Trial And Post-Trial Motions (FRCP 29, 33, 34, and 45(b))

        2.10.1 Trial And Post-Trial Motions: FRCRP 29-Motion For Judgment Of Acquittal
        2.10.2 Trial And Post-Trial Motions: FRCRP 33-Motion For New Trial
        2.10.3 Trial And Post-Trial Motions: FRCRP 34-Motion For Arrest Of Judgment
        2.10.4 Trial And Post-Trial Motions: Other Sources

Effective December 1, 2005, FRCP 29, 33, and 34 were amended to eliminate the restriction that a court may extend the time to make a motion under these rules only if it acts within the seven-day period the defendant has to file the motion or seek an extension. Motions for extending time to file under these rules are now covered by Rule 45(b).

Also note that if the motion occurs during a "public court proceeding," any victims of the offense must be notified and allowed to attend. If the motion is granted and the defendant might be released, victims would have the right to "be reasonably heard." See 18 USC 3771(a)(2)–(4).

The case law on this subject will vary from circuit to circuit. The suggested procedure may be varied to conform with the law of the circuit, the practice of the district, and the preferences of the individual judge.

Motion for Judgment of Acquittal

1. Timing

(a) The motion may be made by the defendant or the court before submission to the jury, after the evidence on either side is closed. FRCP 29(a).

(b) The motion may also be made or renewed (if the court earlier reserved decision under FRCP 29(b)) within seven days of a guilty verdict or discharge of the jury, whichever is later, or within such further time as the court may fix. FRCP 29(c)(1) and 45(b); Carlisle v. United States, 517 U.S. 416 (1996).

(c) Failure to make a FRCP 29 motion prior to submission of the case to the jury does not waive the defendant’s right to move after the jury returns a guilty verdict or is discharged without reaching a verdict. FRCP 32(c)(3).

2. Procedure

(a) The motion should be heard out of the presence of the jury. Whether an oral hearing will be held or the motion will be decided on written submissions only is a matter within the court’s discretion. If the court reserved decision on a motion that is later renewed, "it must decide the motion on the basis of the evidence at the time the ruling was reserved." FRCP 29(b).

(b) If the defendant moves for a judgment of acquittal, but not for a new trial under FRCP 33, the district court may not grant a new trial in lieu of granting the motion for judgment of acquittal. If the motion for acquittal is granted and the defendant has moved for a new trial, the court must conditionally determine whether any motion for new trial should be granted in case the judgment of acquittal is vacated or reversed on appeal. The reasons for that determination must be specified. See FRCP 29(d)(1).

(c) When the court grants a motion for judgment of acquittal, it should consider whether the evidence was sufficient to sustain conviction of a lesser offense necessarily included in the offense charged.

3. Standard

(a) The motion shall be granted for "any offense for which the evidence is insufficient to sustain a conviction." FRCP 29(a).

(b) In resolving the motion, the court should not assess the credibility of witnesses, weigh the evidence, or draw inferences of fact from the evidence. [FOOTNOTE 1] The role of the court is simply to decide whether the evidence viewed in the light most favorable to the government was sufficient for any rational trier of fact to find guilt beyond a reasonable doubt.

FOOTNOTES:

Footnote 1:    Of course, these restrictions do not apply in a bench trial. However, the standard for deciding the motion remains the same.

Whether an oral hearing will be held or the motion will be decided on written submissions only is a matter within the discretion of the court. The propriety of holding a hearing will depend necessarily on the grounds invoked. This motion may be made only by the defendant and cannot be granted by the court sua sponte. FRCP 33(b).

(a) Any alleged error in the trial that could be raised on appeal may be raised on a motion for a new trial, and the motion may be granted "if the interest of justice so requires," that is, if letting the verdict stand would result in a miscarriage of justice. FRCP 33(a).

(b) When the motion for a new trial is made on the ground that the verdict is contrary to the weight of the evidence, the motion should be granted only in exceptional cases where the evidence preponderates heavily against the verdict. Unlike a motion for judgment of acquittal, a motion for a new trial does not require the court to view the evidence in the light most favorable to the government. Some circuits hold that the court has broad power to weigh the evidence and consider the credibility of witnesses. However, other circuits reject the idea of the court as a "thirteenth juror" and limit the extent to which courts may reweigh the evidence. Courts should look to the law of their circuit on this issue.

(c) For a motion based on newly discovered evidence, a defendant must show that the evidence is newly discovered and was unknown to the defendant at the time of trial; failure to discover the evidence sooner was not due to lack of diligence by the defendant; the evidence is material, not merely cumulative or impeaching; and the new evidence would likely lead to acquittal at a new trial. Many circuits have held that such motions are disfavored and should be granted with caution.

The court’s findings and conclusions should be placed on the record. An order denying a new trial is appealable as a final decision under 28 USC 1291. An order granting a new trial may be appealed by the government under 18 USC 3731.

Whether an oral hearing will be held or the motion will be decided on written submissions only is a matter within the discretion of the court. Despite the fact that this motion raises jurisdictional issues, after trial it cannot be granted by the court sua sponte but may only be made by the defendant. Compare FRCP 12(b)(2) (same issues raised here may be raised pretrial by either the defendant or the court).

The motion is resolved upon examination of the "record" (i.e., the indictment or information, the plea or the verdict, and the sentence). The court does not consider the evidence produced at trial. A motion for arrest of judgment is based only on one or both of the following contentions: (i) the indictment or information does not charge an offense or (ii) the court was without jurisdiction of the offense charged. FRCP 34(a)(1) and (2).