People v. Lemmon

Cavanagh, J.

(concurring). I agree with the majority when it holds that a trial judge may not grant a new trial solely on the basis of an evaluation “ ‘of the credibility of witnesses testifying to diametrically opposed assertions of fact.’ ” Ante at 645. 1 I write separately, however, because I do not find this holding inconsistent with our opinion in Herbert, and therefore I see no need to overrule any portion of that decision. People v Herbert, 444 Mich 466 ; 511 NW2d 654 (1993).

In Herbert , we held that it was error for the trial judge to conclude that he was not allowed to consider the credibility of witnesses when deciding a *649 motion for a new trial. 2 In distinguishing the standard for determining whether to grant a new trial and the standard for directing a verdict of acquittal, we explained that under the great weight of the evidence standard, “a judge necessarily reviews the whole body of proofs,” which may include the credibility of witnesses. Id. at 475 . 3 In elaborating on this distinction, we quoted the language that is at the heart of today’s opinion:

On a motion for new trial, the judge acts “as the thirteenth juror,” i.e., he evaluates the credibility of the orally-testifying witnesses and therefore their demeanor. But on a motion for a directed verdict he does not. [Dyer v MacDougall, 201 F2d 265, 272 (CA 2, 1952) (Frank, J., concurring).]

Part of the difficulty with this case is that the “thirteenth juror” concept has not been well defined by either case law or commentators. The opinion states that under the thirteenth juror concept the authority of the trial judge is equal to, or greater than, that of the other jurors when “the court does not agree with the outcome,” ante at 639-640, and that it allows the trial judge to “freely repudiate the jury’s findings.” Id. at 637. The opinion characterizes the Herbert decision as allowing a judge to effectively set aside a jury verdict any time the judge would hold otherwise. I disa *650 gree with this characterization of the thirteenth juror concept. 4

Referring to the trial judge as the “thirteenth juror” is an analogy to the trial judge’s unique position to view the evidence and the witnesses in court. Unlike an appellate judge, the trial judge sits alongside the jury and is able to form opinions with respect to the strengths and weaknesses of the respective party’s cases. 5 However, this does not mean that the trial judge acts like a juror or orders a new trial every time the judge disagrees with the jury’s conclusions. As explained in Williams v City of Valdosta, 689 F2d 964, 973, n 7 (CA 11, 1982):

“There are statements in the cases that, in ruling on the motion, the trial judge acts as a 13th juror. Properly understood and applied, no fault can be found with them for the judge does act to evaluate and weigh the evidence. But while he has a responsibility for the result no less than the jury, he should not set the verdict aside as against the weight of the evidence merely because, if he had acted as trier of the fact, he would have reached a different result; and in that sense he does not act as a 13th juror in approving or disapproving the verdict. And since the credibility of witnesses is peculiarly for the jury, it is an invasion of the jury’s province to grant a new trial merely because the evidence was sharply in conflict.” [Quoting Moore’s Federal *651 Practice, ¶ 59.08[5], pp 59-158 to 159 (emphasis in original).]

Herbert specifically states that review of a jury’s verdict under the great weight of the evidence standard is to be undertaken “mindful of the special role accorded jurors under our constitutional system of justice.” 444 Mich 477 . I see today’s opinion not as overturning this portion of Herbert; rather, today’s opinion gives substance to the meaning of the “special role accorded jurors under our constitutional system of justice.” Indeed, other jurisdictions using the thirteenth juror analogy have limited a trial court’s discretion to grant a new trial in a manner similar to the limitations adopted today. As stated by the Supreme Court of Rhode Island:

[T]he trial justice must act as a thirteenth juror, exercising his or her independent judgment on the credibility of witnesses and on the weight of the evidence. If, after this analysis, the trial justice disagrees with the verdict of the jury, he or she must then determine whether the evidence is so evenly balanced that reasonable minds might fairly come to differing conclusions. If he or she finds the evidence so evenly balanced, then he or she should defer to the findings of the jury. [State v Warren, 624 A2d 841, 843 (RI, 1993) (citations omitted).] [6]

*652 It is for these reasons that I disagree with the majority’s conclusion that “[t]he thirteenth juror standard posits that the authority of the trial judge is equal to, or greater than, that of the other jurors when the court does not agree with the outcome.” Ante at 639-640. The term “thirteenth juror” does not mean that the trial judge substitutes personal judgment for that of the jury; rather, it refers to the trial judge’s unique position, enabling the judge to observe the presentation of evidence in court. Thus, it is entirely consistent to say that a trial judge sits as a thirteenth juror when evaluating the weight of the evidence presented at trial, but that the judge should invoke this perspective sparingly when granting a new trial on the basis of the great weight of the evidence. In short, I believe the holding of the majority is further elaboration of our statement in Herbert , and, therefore, it is unnecessary to overrule any portion of that opinion.

Kelly, J., concurred with Cavanagh, J.

As the majority explains, there are some circumstances where a witness’ testimony may be so impeached or illogical that a trial judge may legitimately grant a new trial on the basis of the credibility of such a witness. Ante at 643-644. Moreover, a trial court may also rely on other substantial “noncredibility” evidence when deciding whether a new trial is warranted under the great weight of the evidence.

Under today’s decision, this would still be the case. The majority does not eliminate the consideration of witness credibility by the trial judge. Rather, it clarifies the standard a trial judge must use when deciding whether to grant a new trial on the basis of the credibility of a witness alone.

In contrast, a motion for a directed verdict requires the trial judge to consider the evidence in a light most favorable to the prosecution. In that instance, a judge must not evaluate the credibility of witnesses. Id. at 475, n 14 .

The majority cites three cases as examples of jurisdictions “recognizing the thirteenth juror concept.” Ante at 637, n 16. However, the term “thirteenth juror” does not appear anywhere in these three decisions. See Veitch v Superior Court of Santa Clara Co, 89 Cal App 3d 722, 730-731; 152 Cal Rptr 822 (1979), People v Ramos, 33 AD2d 344, 347 ; 308 NYS2d 195 (1970), and State v Hudson, 373 So 2d 1294, 1298 (La, 1979) (Tate, J., concurring). Thus, none of these cases appropriately describes the thirteenth juror analogy or the standard we adopted in Herbert .

“The judge sees the witnesses, hears the testimony, and has a special perspective of the relationship between the evidence and the verdict which cannot be recreated by a reviewing court from the printed record.” Reeves v Markle, 119 Ariz 159, 163; 579 P2d 1382 (1978).

6 See also Seward, The sufficiency-weight distinction — A matter of life or death, 38 U Miami L R 147, 154-155 (1983):

There is, however, a caveat to the application of the “thirteenth juror” analogy since the standard for upsetting a jury verdict is very strict. It has been argued that allowing the judge to reverse a conviction based upon the weight of evidence permits the judge to usurp a function traditionally within the province of the jury. By invading the province of the jury, the judge then becomes the real trier of fact. Recognizing this danger, courts must use caution when reweighing evidence. Accordingly, courts reversing a jury verdict based upon the weight of evidence couch their decisions in *652 ternis of “exceptional cases,” “preventing injustice,” or the “evidence preponderating heavily against the verdict.” [Citations omitted.]