Amicus Curiae Brief — Devon Archer, Petitioner v. United States
Supreme Court briefNov 20, 2023
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No. 23-414
In the Supreme Court of the United States
DEVON ARCHER
v.
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF OF PROCEDURE SCHOLARS
AS AMICI CURIAE IN SUPPORT OF CERTIORARI
BRANDON L. ARNOLD
Counsel of Record
JEFFREY C. THALHOFER
KRAMER LEVIN NAFTALIS &
FRANKEL LLP
2000 K Street, NW, 4th Floor
Washington, DC 20006
(202) 775-4500
barnold@kramerlevin.com
i
TABLE OF CONTENTS
Page
Interest of the amici curiae .......................................... 1
Summary of argument ................................................. 2
Argument...................................................................... 4
A. The decision below is wrong ................................... 4
1. Longstanding historical tradition
demonstrates that trial courts may
independently reweigh the evidence when
resolving a motion for a new trial .................... 5
2. The Criminal Rules’ text and structure
carry forward long-settled historical
practice ............................................................ 11
3. The court of appeals erred in rejecting the
longstanding approach to new-trial
motions ............................................................ 13
B. The decision below warrants this Court’s
review.................................................................... 15
1. The courts of appeals are divided ................... 15
2. The question presented is recurring and
important ........................................................ 18
Conclusion .................................................................. 22
TABLE OF AUTHORITIES
Cases:
Aetna Cas. & Sur. Co. v. Yeatts, 122
F.2d 350 (4th Cir. 1941) ...................................... 4, 17
Applebaum v. United States, 274 F. 43
(7th Cir. 1921) ......................................................... 10
Bright v. Eynon, 1 Burrows 390 (1757)........................ 7
Burton v. United States, 202 U.S. 344
(1906) ......................................................................... 8
Dewey v. Chicago & N.W. R.R. Co., 31
Iowa 373 (1871) ................................................... 7, 10
ii
Cases—Continued:
Page
Felton v. Spiro, 78 F. 576 (6th Cir.
1897) ................................................................. 7, 8, 9
Garrison v. United States, 62 F.2d 41
(4th Cir. 1932) ........................................................... 9
Gasperini v. Center for Humanities, Inc.,
518 U.S. 415 (1996) ........................................... 10, 17
Grayson v. Commonwealth, 47 Va. (6
Gratt.) 712 (Gen. Ct. 1849)........................................ 7
Hodge v. United States, 13 F.2d 596 (6th
Cir. 1926) ................................................................... 9
Jackson v. Virginia, 443 U.S. 307 (1979)................... 12
Peña-Rodriguez v. Colorado, 137 S. Ct.
855 (2017) .................................................... 18, 19, 22
Smith v. Times Pub. Co., 36 A. 296 (Pa.
1897) ................................................................ 4, 6, 18
State v. Bird, 1 Mo. 585 (1825)..................................... 7
State v. Wood, 8 S.C.L. (1 Mill) 29
(Const. App. 1817) ............................................... 7, 10
Tibbs v. Florida, 457 U.S. 31 (1982) ...... 5, 12-14, 20-21
Tibbs v. State, 337 So. 2d 788 (Fla.
1976) ................................................................... 20-21
United States v. Alston, 974 F.2d 1206
(9th Cir. 1992) ................................................... 10, 16
United States v. Burks, 974 F.3d 622
(6th Cir. 2020) ......................................................... 16
United States v. Crittenden, 46 F.4th
292 (5th Cir. 2022) (en banc) ..................................... 5
United States v. Fullerton, 25 F. Cas.
1225 (C.C.S.D.N.Y. 1870) .......................................... 7
United States v. Garcia, 182 F.3d 1165
(10th Cir. 1999)........................................................ 16
United States v. Harding, 26 F. Cas. 131
(C.C.E.D. Pa. 1846) ................................................... 7
iii
Cases—Continued:
Page
United States v. Hernandez, 433 F.3d
1328 (11th Cir. 2005) ............................................... 15
United States v. Kellington, 217 F.3d
1084 (9th Cir. 2000) ................................................... 9
United States v. Lincoln, 630 F.2d 1313
(8th Cir. 1980) ........................................... 5, 8, 10, 12
United States v. Merlino, 592 F.3d 22
(1st Cir. 2010) .......................................................... 16
United States v. Parelius, 83 F. Supp.
617 (D. Haw. 1949) .................................................. 12
United States v. Paulus, 894 F.3d 267
(6th Cir. 2018) .................................................... 15-16
United States v. Rafiekian, 68 F.4th 177
(4th Cir. 2023)…………… ........................................ 15
United States v. Reid, 53 U.S. (12 How.)
361 (1851) .................................................................. 7
United States v. Robinson, 71 F. Supp. 9
(D.D.C. 1947) ..................................................... 11, 13
United States v. Stacks, 821 F.3d 1038
(8th Cir. 2016) ......................................................... 15
United States v. Tarango, 396 F.3d 666
(5th Cir. 2005) ......................................................... 16
United States v. Washington, 184 F.3d
653 (7th Cir. 1999)................................................... 15
Statutes and Rules:
18 U.S.C. § 3731 ......................................................... 10
28 U.S.C. § 391 ........................................................... 11
Comprehensive Crime Control Act of 1984,
Pub. L. No. 98-473, 98 Stat. 1837 .......................... 17
Fed. R. Crim. P. 29 ....................................... 2, 5, 11-15
Fed. R. Crim. P. 33 ............................... 2, 4-5, 11-14, 17
The Judiciary Act of 1789, ch. 20, 1 Stat. 73 ............... 7
iv
S. Ct. Rule 10(a) ......................................................... 15
Miscellaneous:
Page
Amended Opening Brief, Peña-Rodriguez v.
People, 350 P.3d 287 (Colo. 2015), 2013 WL
12140027 .................................................................. 19
Hugo Adam Bedau & Michael L. Radelet,
Miscarriages of Justice in Potentially Capital
Cases, 40 Stan. L. Rev. 21 (1987) ............................ 21
3 William Blackstone, Commentaries on the
Laws of England (1768) ............................................ 6
4 William Blackstone, Commentaries on the
Laws of England (1769) ............................................ 6
Cassandra Burke Robertson, Invisible Error,
50 Conn. L. Rev. 161 (2018) .............................. 19, 20
Cassandra Burke Robertson, Judging Jury
Verdicts, 83 Tul. L. Rev. 157 (2008) ........... 7-8, 12, 21
District Courts–Criminal Judicial Facts and
Figures (Sept. 30, 2019),
https://bit.ly/2RNFjvT ............................................. 18
Federal Judicial Center, Rules: Federal Rules
of Criminal Procedure, https://bit.ly/3arsb5U ........ 11
Wayne R. LaFave et al., Criminal Procedure
§ 24.11 (4th ed. 2020) .............................................. 18
Stephan Landsman, Appellate Courts and
Civil Juries, 70 U. Cin. L. Rev. 873 (2002) ............... 9
Lester B. Orfield, The Federal Rules of
Criminal Procedure, 33 Cal. L. Rev. 543
(1945) ....................................................................... 11
Andrew S. Pollis, The Appellate Judge as the
Thirteenth Juror: Combating Implicit Bias
in Criminal Convictions, (2022) .............................. 19
Andrew S. Pollis, The Death of Inference, 55
B.C. L. Rev. 435 (2014) .............................................. 9
v
James B. Thayer, The Jury and Its
Development III, 5 Harv. L. Rev. 357 (1892)............. 6
Miscellaneous—Continued:
Page
Neil Vidmar & Valerie P. Hans, American
Juries: The Verdict (2007) ....................................... 22
1 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure Criminal § 1
(5th ed. 2023) ........................................................... 11
1 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure Criminal
§ 31 (5th ed. 2023) ................................................... 17
3 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure Criminal
§ 582 (5th ed. 2023) ................................................... 4
In the Supreme Court of the United States
NO. 23-414
DEVON ARCHER
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF OF PROCEDURE SCHOLARS
AS AMICI CURIAE IN SUPPORT OF CERTIORARI
INTEREST OF THE AMICI CURIAE
Amici curiae are law professors who have expertise
that bears directly on the issue raised in the certiorari
petition: the scope of district court’s power to weigh
the evidence and grant a new trial in the interest of
justice. 1
Amici curiae are professors of criminal and
2
appellate procedure. Amici curiae are:
1
Counsel of record for all parties received ten days’ notice of the filing of this brief. No party’s counsel authored
this brief in whole or in part; no party’s counsel contributed
money for this brief’s preparation or submission; and no
person or entity—other than amici and their counsel—contributed money for this brief’s preparation or submission.
2
Institutional affiliations are provided for identification
purposes only.
2
Cassandra Burke Robertson, John Deaver
Drinko—BakerHostetler Professor of Law, Case
Western Reserve University School of Law.
Steven B. Duke, Professor Emeritus of Law,
Yale Law School.
Andrew S. Pollis, Professor of Law, Case
Western Reserve University School of Law.
SUMMARY OF ARGUMENT
Rule 33 of the Federal Rules of Criminal Procedure
authorizes a district court to grant a new trial in a
criminal case “if the interest of justice so requires.”
When adopted, that Rule was understood to
incorporate the historical power of trial judges to
independently assess the trial evidence and to grant a
new trial when the verdict was against the clear
weight of that evidence. Even though such weight-ofthe-evidence review has, for centuries, been
understood to be a critical component of the
constitutional right to a jury trial, it has received little
scholarly or judicial attention. And, in recent decades,
weight-of-the-evidence review pursuant to Rule 33
has often been overlooked entirely or confused with a
court’s power to direct an acquittal based on
insufficient evidence under Rule 29.
The Second Circuit’s opinion in this case continues
and exacerbates that doctrinal disarray. It is contrary
to the historical practice that informs the proper
understanding of Rule 33’s “interest of justice”
standard. That common-law tradition—beginning as
early as seventeenth-century England and continuing
through the adoption of the Criminal Rules in the
twentieth century—made clear that trial courts had
the power to consider the evidence anew and order a
new trial. That power was broad, but its effect was
limited. It did not remove a jury from the case;
3
instead, it asked a second jury to weigh in on verdicts
that judges thought were questionable. It therefore
was conceptually and practically distinct from the
limited circumstances in which a judge could direct a
verdict, thereby removing juries from the case
altogether.
The Second Circuit’s decision in this case breaks
from that history and, contrary to several other
circuits, erases much of the district court’s power.
Instead of recognizing the traditional power to
reweigh evidence independently, the Second Circuit
requires a district court to defer to the jury’s verdict,
except where “the evidence was patently incredible or
defied physical realities.” Pet. App. 31a (cleaned up).
In so holding, the decision below conflates the
judgment-of-acquittal and new-trial standards. That
rule will cause doctrinal ripple effects and call into
question precedents that relied on the distinction
between those two remedies.
The court of appeals’ rule also robs district courts
of a powerful tool that they have long employed, in
exceptional cases, to protect against verdicts that risk
undermining confidence in the jury system because
they may be grounded in mistake, misconduct, or bias.
The power to order a new trial ensures that
exceptionally close questions can be put to a new jury.
If the second jury agrees that the defendant is guilty,
then that second verdict is the end of the matter. But,
if it does not, then a questionable verdict is swept
away. In either event, the new-trial power serves as
an efficient means of error correction in exceptional
cases. And it benefits the justice system as a whole by
allowing courts to smoke out wrongful convictions
without the time and expense of collateral
proceedings, which undermine finality, or efforts to
4
uncover juror misconduct or bias, which undermine
the confidentiality of deliberations.
ARGUMENT
The decision below is wrong, it squarely conflicts
with decisions of other circuits, and it presents a
frequently recurring issue with significant import for
orderly administration of the jury trial system. This
Court’s review is warranted.
A. The Decision Below is Wrong
Rule 33 empowers trial court judges to “grant a
new trial if the interest of justice so requires.”
Although the rule does not define what constitutes the
“interest of justice,” courts have long understood it to
include the historical power to grant a new trial if the
“verdict is against the weight of the evidence.” 3
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure Criminal § 582 (5th ed. 2023).
That “foundational reason” for a new trial, ibid.,
follows directly from centuries of common-law
tradition. Indeed, as one influential account of the
new-trial power observed, a trial judge’s authority to
reweigh the evidence has long been understood to be
“indispensable to the proper administration of
justice.” Smith v. Times Pub. Co., 36 A. 296, 309 (Pa.
1897) (Williams, J., concurring). 3
Decades of practice under the Criminal Rules
likewise confirm the conclusion that Rule 33
empowers a district court to independently reweigh
the evidence and, in appropriate cases, grant a new
3
Justice Williams’ opinion, which “traces the history of
the exercise of [the new-trial power],” has long been viewed
as an influential statement of that history. E.g., Aetna Cas.
& Sur. Co. v. Yeatts, 122 F.2d 350, 353 (4th Cir. 1941).
5
trial to prevent a miscarriage of justice. Like their
historical antecedents in common-law practice, the
Criminal Rules draw clear distinctions between a
motion for acquittal under Rule 29 and a new-trial
motion under Rule 33. Based on that common-law
history, modern courts (federal and state alike)
recognize that, when considering a motion for a new
trial, the trial court “need not view the evidence in the
light most favorable to the verdict; it may weigh the
evidence and in so doing evaluate for itself the
credibility of the witnesses.” Tibbs v. Florida, 457
U.S. 31, 38 n.11 (1982) (quoting United States v.
Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)).
In the decision below, however, the court of
appeals held that a trial judge faced with a Rule 33
motion for a new trial may not reweigh the evidence
and “must defer to the jury’s resolution of conflicting
evidence” unless the jury’s finding was patently
incredible or defied physical realities. Pet. App. 43a
(cleaned up), see Pet. 11. That holding is incompatible
with longstanding historical practice and improperly
imports the stringent test for a judgment of acquittal
into the new-trial context. In doing so, it risks
shutting the door to an important (and efficient)
means of correcting questionable convictions.
1.
Lo ngstanding
histo rical
traditio n
demo nstrates that trial co urts may
independently rew eigh the evidence
w hen reso lving a mo tio n for a new trial
a. For centuries, trial judges, in both civil and
criminal cases, have had broad authority to reweigh
the evidence and order a new trial. That authority
has “deep roots in our legal system,” dating back “as
early as the fourteenth century.” United States v.
Crittenden, 46 F.4th 292, 297 (5th Cir. 2022) (en
6
banc).
It was well established by the time
Blackstone’s commentaries on the law were published
in 1768. Blackstone explained that it was the
“practice of the court to award a new, or second, trial”
where “the jury have brought in a verdict without or
contrary to evidence, so that [the trial judge] is
reasonably dissatisfied therewith.”
3 William
Blackstone, Commentaries on the Laws of England
387 (1768). That rule applied with equal force to
criminal trials: “[I]n many instances, where contrary
to evidence the jury have found the prisoner guilty,
their verdict hath been mercifully set aside, and a new
trial granted.” 4 William Blackstone, Commentaries
on the Laws of England 355 (1769); see also James B.
Thayer, The Jury and Its Development III, 5 Harv. L.
Rev. 357, 386 (1892). 4
By 1790, that “common-law rule” had “been well
settled * * * in England for at least 150 years.” Times
Pub., 36 A. at 309 (Williams, J., concurring). “Trial by
jury” meant fact-finding by jurors subject to the
supervision of the court; the trial judge had
“responsibility for the result no less than the jury” and
“[i]f he [was] not satisfied with the verdict, it [was] his
duty to set it aside, and grant a new trial before
another jury.” Id. at 308. “The exercise of this power
was then thought to be in aid of trial by jury.” Id. at
309. As Lord Mansfield explained, granting a new
trial did not deny litigants a jury hearing but rather
resulted in “‘no more than having the cause more
deliberately considered by another jury, when there is
reasonable doubt, or perhaps a certainty, that justice
4
In criminal cases, of course, this review has always been
one-sided because double jeopardy protects an acquitted
defendant from retrial. 4 Blackstone, supra, at 355.
7
has not been done.’” Ibid. (quoting Bright v. Eynon, 1
Burrows 390 (1757)). In short, “it was the habit of the
judges of England, whence came the common law, to
set aside verdicts as against the weight of evidence.”
Felton v. Spiro, 78 F. 576, 583 (6th Cir. 1897) (Taft,
J.).
That common-law tradition “traveled to the
American colonies and then into the new Republic as
a part of the right to trial by jury” secured by the Sixth
and Seventh Amendments to the U.S. Constitution.
Cassandra Burke Robertson, Judging Jury Verdicts,
83 Tul. L. Rev. 157, 165 (2008). State trial courts (like
their English forebears) ordered new trials when, in
the judge’s view, the “preponderance of testimony”
was greatly against the verdict. E.g., State v. Wood, 8
S.C.L. (1 Mill) 29, 32 (Const. App. 1817); State v. Bird,
1 Mo. 585, 586 (1825); Grayson v. Commonwealth, 47
Va. (6 Gratt.) 712, 724 (Gen. Ct. 1849); see also Dewey
v. Chicago & N.W. R.R. Co., 31 Iowa 373, 377 (1871).
Early federal courts exercised that same power. 5
The Judiciary Act of 1789 expressly empowered
federal courts to set aside a verdict “for reasons for
which new trials have usually been granted.” ch. 20,
§ 17, 1 Stat. 73, 83. Like their state counterparts,
federal courts agreed that, “[i]f the verdict does not
satisfy the conscience of the [trial] judge, the prisoner
is entitled to a new trial.” United States v. Harding,
26 F. Cas. 131, 136 (C.C.E.D. Pa. 1846) (Op. of Kane,
J.); see also, e.g., United States v. Fullerton, 25 F. Cas.
1225, 1226 (C.C.S.D.N.Y. 1870) (new trial warranted
if the court “should be of [the] opinion that the verdict
5
In the pre-Rules era, federal trial courts applied the
criminal-procedure rules of the State in which they sat. See
United States v. Reid, 53 U.S. (12 How.) 361 (1851).
8
was against the evidence”). Indeed, federal courts
made clear that a motion for a new trial “necessarily
[] required” a trial judge to “weigh the evidence” and
determine “whether or not, in its opinion, the verdict
was so opposed to the weight of the evidence.” Felton,
78 F. at 581–583 (holding that the trial court’s refusal
to reweigh the evidence had “depriv[ed] the party
making the motion of a substantial right”).
To be clear, that power has always had its limits.
A trial judge cannot set aside a verdict “merely
because, if he had acted as the trier of fact, he would
have reached a different result.” Robertson, Judging
Jury Verdicts, 83 Tul. L. Rev. at 164. Rather, a new
trial is appropriate only when the verdict is “against
the clear weight of the evidence.” Ibid. And the
authority to order a new trial has never been
understood to authorize a judge to order successive
new trials until the jury reaches the judge’s preferred
verdict. “There is a general presumption that if a
second jury agrees with the first, it was the trial judge
and not the jury who was mistaken about the weight
of the evidence.” Id. at 208–209 (citing authorities).
In that way, the judge and the jury complement each
other’s “fact-finding competencies” in exceptionally
close cases. Id. at 205.
b. The district court’s power to order a new trial
has always been conceptually (and practically)
distinct from its power to direct a verdict of acquittal.
When asked to direct an acquittal, a court is “not
authorized to take the case from the jury” where there
is any evidence that, if believed, would suffice to
support a conviction. Burton v. United States, 202
U.S. 344, 373 (1906). Thus, when called to rule upon
a motion for acquittal, the court looks only at the
sufficiency of the evidence that might support the
9
verdict “irrespective of any countervailing [evidence]
that may have been introduced.” Lincoln, 630 F.2d at
1316–1317. It does not matter if the judge “believe[s]
[that] evidence or [] think[s] that the weight of the
evidence is on the other side.” Garrison v. United
States, 62 F.2d 41, 42 (4th Cir. 1932). Because an
acquittal motion asks only if there is some evidence
that supports the verdict, it makes sense that courts
view the evidence in the light most favorable to the
verdict. See Hodge v. United States, 13 F.2d 596, 596
(6th Cir. 1926).
But a new-trial motion is “altogether different.”
Felton, 78 F. at 582. In that context, a trial judge can
“set aside a verdict supported by substantial evidence
where in his opinion it is contrary to the clear weight
of the evidence * * * even though the evidence be
sufficient to preclude the direction of a verdict.”
Garrison, 62 F.2d at 42. It does not infringe the factfinding role of the jury because “an order directing a
new trial leaves the final decision in the hands of the
jury.” United States v. Kellington, 217 F.3d 1084,
1097 (9th Cir. 2000). To the contrary, the new-trial
power has long been understood to “safeguard the
power of the jury by serving as a more moderate check
on inaccurate verdicts than decisions that judges
would otherwise * * * make on their own.” Andrew S.
Pollis, The Death of Inference, 55 B.C. L. Rev. 435, 489
(2014) (footnote omitted).
c. At common law and in pre-Rules practice, a
defendant’s motion for a new trial “vested in the trial
court” the power “to overturn a clearly unjust
decision.” Stephan Landsman, Appellate Courts and
Civil Juries, 70 U. Cin. L. Rev. 873, 888 (2002). The
power to “grant or refuse a new trial in cases of
conflicting evidence” was the “exclusive and
10
unassignable function of the trial judge.” Applebaum
v. United States, 274 F. 43, 46 (7th Cir. 1921). In
exercising that discretion, the trial judge “sit[s] as the
thirteenth juror” and must “attentively consider and
weigh the evidence as it is being introduced.” Ibid.
That power is appropriately entrusted to the trial
judge who “enjoyed nearly all the advantages of the
jury,” Wood, 8 S.C.L. at 32, including hearing
“testimony from the mouths of the witnesses” and
having the “benefit of observing the[ir] conduct and
deportment.” Dewey, 31 Iowa at 377.
Appellate courts had no such power. In stark
contrast to the broad power of trial judges to weigh
the evidence, appellate review of new-trial orders was
strictly confined. Orders granting a new trial were
not appealable at all until the 1984 revisions to 18
U.S.C. § 3731. And appellate review of new-trial
denials was “limited” to “clear and manifest abuse of
discretion.” Lincoln, 630 F.2d at 1319. That narrow
role reflected the fact that “[c]ircuit judges, reading
the dry pages of the record, do not experience the
tenor of the testimony at trial” and thus defer to the
trial judge when that judge saw the evidence and
evaluated the credibility of witnesses firsthand.
United States v. Alston, 974 F.2d 1206, 1212 (9th Cir.
1992). That is why, “at common law, ‘reexamination’
of the facts found by a jury could be undertaken only
by the trial court, and that appellate review was
restricted to * * * matters of law.” Gasperini v. Center
for Humanities, Inc., 518 U.S. 415, 457 (1996) (Scalia,
J., dissenting).
11
2.
The Criminal Rules’ text and struc ture
c arry forw ard lo ng-settled historic al
prac tice
In 1933, in light of the growing docket of federal
criminal cases, Congress authorized this Court to
promulgate the Criminal Rules. 6 Before the adoption
of the Rules, “federal criminal practice was a
hodgepodge of judicial elaboration, common law rules,
constitutional provisions, and ad hoc legislation.” 1
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure Criminal § 1 (5th ed. 2023).
Leading scholars, Congress, and the federal courts
themselves recognized “[t]he need for simplified,
standardized procedure in a uniform system.” Ibid.
The finished product, which became effective in 1946,
contained, among many others, Rules 29 and 33, for
motions of acquittal and new trial, respectively.
Then, as now, Rule 33 empowered district courts
to grant a new trial “if required in the interest of
justice.” Lester B. Orfield, The Federal Rules of
Criminal Procedure, 33 Cal. L. Rev. 543, 574 (1945)
(quoting original text of Rule 33). That Rule expanded
the grounds for a new trial to “any fair or reasonable
ground,” whereas previously they had been limited to
the “reasons [for] which new trials have usually been
granted in the courts of law.” Ibid. (quoting 28 U.S.C.
§ 391).
And, under that Rule, district courts
unquestionably retained the “broad power of a
common law judge to grant a new trial on the ground
that the verdict is contrary to the weight of evidence.”
United States v. Robinson, 71 F. Supp. 9, 11 (D.D.C.
1947). As was the law in the pre-Rules era, Rule 33
6
See generally Federal Judicial Center, Rules: Federal
Rules of Criminal Procedure, https://bit.ly/3arsb5U.
12
gave trial judges “ample power” to “consider and
weigh the evidence as it is being introduced” and to
grant a single new trial if “the verdict is against the
clear weight of the evidence.” United States v.
Parelius, 83 F. Supp. 617, 622 (D. Haw. 1949).
The Criminal Rules’ structure reinforces the same
point. By codifying motions for acquittal and motions
for new trial in two separate rules, the new Rules
preserved the traditional distinction between the two
remedies. Rule 29 authorizes a trial court to enter a
judgment of acquittal where “the evidence is
insufficient to sustain a conviction.” In applying this
inquiry, the court must ask whether, even when
viewing the evidence in the light most favorable to the
verdict, any reasonable fact-finder could have voted to
convict. See Jackson v. Virginia, 443 U.S. 307, 318
(1979). So long as there is some evidence that could
support a guilty verdict, a Rule 29 motion must be
denied “no matter how strong the countervailing
evidence may be.” Robertson, Judging Jury Verdicts,
83 Tul. L. Rev at 169.
Weight-of-the-evidence review under Rule 33 is an
entirely different exercise. It asks district courts to
consider all the evidence and then determine whether
the evidence favoring guilt is clearly outweighed by
contrary evidence. See id. at 187. In conducting that
inquiry, “[t]he district court need not view the
evidence in the light most favorable to the verdict; it
may weigh the evidence and in doing so evaluate for
itself the credibility of the witnesses.” Tibbs, 457 U.S.
at 38 n.11 (quoting Lincoln, 630 F.2d at 1319).
Drawing that distinction is the only way that the
inquiry works. The entire point of the inquiry is to
“determine if the evidence preponderates heavily
against the verdict.”
Robertson, Judging Jury
13
Verdicts, 83 Tul. L. Rev. at 187. If a court views the
“evidence in the light most favorable to the verdict, it
is presuming the answer to the very question it seeks
to answer.” Ibid.
So, even where there is some evidence to support
the verdict—such that the court could not direct an
acquittal under Rule 29—Rule 33 still allows the trial
judge to consider the evidence and grant a new trial if
it weighs against the verdict. See Robinson, 71 F.
Supp. at 12. That difference makes sense. Ordering
a new trial preserves the role of the jury in rendering
a verdict, so it is natural that the standard for
granting a new trial would be more forgiving than the
strong medicine of a directed acquittal. See id. at 10.
The Rules’ sharp distinction between new-trial
motions and directed-acquittal motions also makes
sense in light of the constitutional consequences of
each. In Tibbs, this Court considered the implications
of a directed acquittal and a new-trial order vis-à-vis
the Double Jeopardy Clause of the Fifth Amendment.
457 U.S. at 40–45. A verdict set aside based on the
insufficiency of the evidence bars retrial because “it
means that no rational factfinder could have voted to
convict the defendant.” Id. at 41. There is no such bar
when a district court grants a new trial because, as
this Court explained, there the judge could “disagree[]
with the jury’s resolution of the conflicting testimony,”
and that “difference of opinion no more signifies
acquittal than does a disagreement among the jurors
themselves.” Id. at 42.
3.
The c o urt o f appeals erred in rejec ting
the lo ngstanding approac h to new -trial
mo tio ns
In the decision below, the court of appeals departed
from the historically grounded understanding of a
14
district court’s authority to independently reweigh the
evidence when resolving a motion for a new trial. In
doing so, it erroneously conflated petitioner’s newtrial motion with one for a directed verdict of
acquittal. It held that the district court “must defer to
the jury’s resolution of conflicting evidence” unless
“the evidence was patently incredible or defied
physical realities” and that the district court could not
grant a new trial if the “jury was entitled to conclude”
that the defendant was guilty. Pet. App. 28a n.3, 31a
(cleaned up).
The Second Circuit’s rule rejects hundreds of years
of common-law history recognizing the broad power of
trial court judges to independently reweigh the
evidence when deciding new-trial motions. And it
disregards the important distinction between the Rule
29 test and the Rule 33 test. Under the former, the
district court must “view[] the evidence in the light
most favorable to the prosecution” (i.e., defer to the
verdict) and it can grant relief only if “no rational
factfinder could have found the defendant guilty” (i.e.,
the jury was “entitled” to find guilt). Tibbs, 457 U.S.
at 37. Put differently, if after deferring to the jury’s
resolution of conflicting evidence, the trial court
concluded that the jury was not “entitled” to convict,
it should order an acquittal—not a new trial. But,
under the Second Circuit’s rule, that distinction is
illusory. That rule also undermines the foundation of
this Court’s decision in Tibbs because the Double
Jeopardy distinctions between new-trial and directedacquittal orders would evaporate, highlighting the
impropriety of conflating the two standards.
15
B. The Decision Below Warrants this Court’s
Review
1.
The c o urts o f appeals are divided
The trial court’s power to review the weight of the
evidence has fallen into a state of doctrinal disorder
and inconsistency. The question presented—whether
a district court can independently weigh the evidence
on a motion for a new trial—has split the courts of
appeals. That conflict is real and intractable. Indeed,
two circuits have expressly considered and rejected
the “physical impossibility” test adopted by the court
of appeals below. This Court should grant the petition
to resolve that divide and restore uniformity to this
important question of federal criminal law. See S. Ct.
Rule 10(a).
a. As petitioner correctly explains, the Fourth,
Seventh, and Eighth Circuits have considered, and
rejected, the precise test adopted by the court below:
namely, that district courts must defer to the jury
unless the evidence is “incredible” or “physically
impossible.” See Pet. 18-19 (citing United States v.
Rafiekian, 68 F.4th 177 (4th Cir. 2023)); id. at 19-20
(citing United States v. Washington, 184 F.3d 653 (7th
Cir. 1999)); id. at 20-21 (citing United States v. Stacks,
821 F.3d 1038 (8th Cir. 2016)).
b. The other circuits are divided too. While the
decision below stands alone in requiring district
courts to defer across-the-board to the “jury’s
resolution of conflicting evidence,” Pet. 29 (quoting
Pet. App. 8a), the other circuits are split on whether a
trial court can consider credibility.
At least five other circuits (the Fifth, Sixth, Ninth,
Tenth, and Eleventh) have held that a district court
must “consider the credibility of witnesses and the
weight of the evidence” in deciding whether to grant a
16
new trial. United States v. Paulus, 894 F.3d 267, 278
(6th Cir. 2018) (vacating order for failure to do so); see
also United States v. Hernandez, 433 F.3d 1328, 1335
(11th Cir. 2005) (error to “view[] all the evidence,
[make] all inferences, and resolve[] all credibility
issues in the light most favorable to the government”);
United States v. Tarango, 396 F.3d 666, 671–672 (5th
Cir. 2005) (“district court must carefully weigh the
evidence and may assess the credibility of the
witnesses”) (cleaned up); United States v. Garcia, 182
F.3d 1165, 1170 (10th Cir. 1999) (similar); Alston, 974
F.2d at 1211–1212 (similar); see also Pet. 22 (noting
that most of those circuits have relied on the
thirteenth-juror analogy when articulating that rule).
But, as petitioner notes, two circuits (the First and
Sixth) have taken a different approach. Pet. 23 (citing
United States v. Burks, 974 F.3d 622 (6th Cir. 2020) &
United States v. Merlino, 592 F.3d 22, 32–33 (1st Cir.
2010)). 7 In those circuits, district courts can reweigh
evidence, but cannot consider credibility. When it
comes to credibility, those circuits (like the decision
below) held that district courts must “defer to a jury’s
credibility
assessment[]”
absent
“exceptional
7
The Sixth Circuit is itself split. Burks recently concluded that (absent exceptional circumstances) district
courts must defer to the jury’s credibility findings. 974
F.3d at 628, cert. denied, 141 S. Ct. 1722 (2021). But the
dissent maintained that holding had no precedential effect
because it directly contradicted the Sixth Circuit’s “wellestablished rule that in deciding a new-trial motion, a district court must ‘act as the ‘thirteenth juror’ to ‘consider the
credibility of witnesses and the weight of the evidence.’” Id.
at 637 (White, J., dissenting) (quoting Paulus, 894 F.3d at
278).
17
circumstances,” such as testimony that is “incredible
or insubstantial on its face.” Merlino, 592 F.3d at 32–
33.
That evidence-but-not-credibility rule, while more
modest than the sweeping deference required by the
decision below, suffers from similar defects. Nothing
in Rule 33’s text draws a distinction between
credibility determinations and other factual findings
that a jury must make in reaching a verdict. Nor is
there any principled reason for a district court to treat
them differently when assessing whether the verdict
is against the clear weight of the evidence. This
second conflict further demonstrates the pervasive
confusion in the lower courts over how to apply
weight-of-the-evidence review
c. Those conflicting decisions justify this Court’s
review. While the history of the new-trial power
reaches back centuries, a decision granting a new trial
was, until relatively recently, “not reviewable upon
appeal.” Aetna Cas., 122 F.2d at 354; see also
Gasperini, 518 U.S. at 457–458 (Scalia, J., dissenting);
Comprehensive Crime Control Act of 1984, Pub. L.
No. 98-473, § 1206, 98 Stat. 1837, 2153 (authorizing
appeals of new-trial orders). Now that appellate
review has been available for several decades, the
courts of appeals have had ample opportunity to
review such decisions. But this Court has never
weighed in on the issue. That lengthy period of
percolation in the lower courts has resulted in
inconsistent and contradictory rules across (and
within) the circuits. This Court should grant the
petition to provide guidance and restore a measure of
uniformity to this important question of federal
criminal procedure. See 1 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
18
Criminal § 31 (5th ed. 2023) (uniformity was one of
the driving factors that led to the promulgation of the
Criminal Rules).
2.
The question presented is rec urring and
impo rtant
This Court’s review is also warranted because the
question presented arises with frequency and has
important implications for the operation of the
criminal justice system. Over 1,400 criminal jury
trials result in conviction each year. 8 Of those
convicted defendants, many choose to pursue motions
for acquittal and new trial after the verdict. See, e.g.,
Wayne R. LaFave et al., Criminal Procedure
§ 24.11(a) (4th ed. 2020).
a. The power to grant a new trial acts as an
important procedural safeguard in all those cases (as
well as in countless civil jury cases). Early American
courts characterized it as an indispensable feature of
the jury right, “without which the jury system would
be a capricious and intolerable tyranny, which no
people could long endure.” Times Pub., 36 A. at 298
(Op. of Mitchell, J.).
“Like all human institutions, the jury system has
its flaws[.]” Peña-Rodriguez v. Colorado, 137 S. Ct.
855, 861 (2017). While the jury-trial process reaches
fair-minded and rational results in most cases, there
are exceptions to that rule. Jurors can reach an
erroneous verdict as the result of innocent
misunderstandings as to the judge’s instructions or
the content of testimony, undisclosed biases, or
egregious misconduct. But the rules protecting the
8
Table 5.4—U.S. District Courts–Criminal Judicial
Facts and Figures (Sept. 30, 2019), https://bit.ly/2RNFjvT.
19
jury’s deliberative secrecy make such errors difficult,
if not impossible, to identify and correct.
See
Cassandra Burke Robertson, Invisible Error, 50 Conn.
L. Rev. 161, 163 (2018).
Those are the circumstances in which weight-ofthe-evidence review does its most important work.
Allowing the trial judge to review the weight of the
evidence independently provides an indirect means to
address those errors. Where a verdict is tainted by
improper considerations, the evidence for that
outcome is presumably weaker. “After all, if the
evidence alone were strong enough to support the
ruling, jurors would not need to look elsewhere for
arguments to buttress their position.” Id. at 193.
While trial judges often do not know why a jury ruled
as it did (and typically cannot ask), “weight of the
evidence acts as a safety valve.” Ibid. It “allows the
trial judge to grant a new trial when the judge
believes, but does not know for certain, that the jury
based its verdict on something other than a rational
review of the evidence.” Ibid. (cleaned up); see also,
e.g., Andrew S. Pollis, The Appellate Judge as the
Thirteenth Juror: Combating Implicit Bias in
Criminal Convictions, pp. 27-31, online at
https://papers.ssrn.com/sol3/papers.cfm?abstract
id=4032050 (as last visited Nov. 16, 2023) (arguing for
more robust weight-of-the-evidence review to address
problems of implicit bias).
Take Peña-Rodriguez, for example. It is a textbook
example of conflicting evidence. The two teenage
victims identified the defendant as the man who
assaulted them in a racetrack bathroom. 137 S. Ct. at
861. A coworker provided an alibi, testifying that the
defendant was with him elsewhere at the time of the
assaults. See Amended Opening Br. at 1–2, Peña-
20
Rodriguez v. People, 350 P.3d 287 (Colo. 2015) (No.
13SC9), 2013 WL 12140027. The jury convicted.
Ultimately, this Court overturned the conviction
based on evidence that a juror “relied on racial
stereotypes or animus” to convict. 137 S. Ct. at 869–
870. But had those statements not come to light, a
new trial may still have been appropriate. Robertson,
Invisible Error, 50 Conn. L. Rev. at 165. Because the
eyewitness testimony was rebutted by an alibi witness
who had no incentive to lie, the trial judge could have
concluded that the verdict was contrary to the weight
of the evidence. Id. at 165–66. In that way, weightof-the-evidence review can help to smoke out
erroneous verdicts, including those premised on
improper biases, without needing to pierce the secrecy
of the jury’s deliberations.
b. Under the court of appeals’ approach, by
contrast, district courts will be required to uphold
questionable verdicts that otherwise would have
justified a new trial.
The facts in Tibbs illustrate how that different
standard leads to different results. A jury convicted
Delbert Tibbs of rape and murder based on the
testimony of the victim and a jailhouse informant. See
Tibbs, 457 U.S. at 33 & n.3. That testimony,
“although sufficient to support the jury’s verdict,” id.
at 46, was subject to “considerable doubt,” Tibbs v.
State, 337 So. 2d 788, 790 (Fla. 1976). The informant
was “substantially discredited * * * on crossexamination” based on “inconsistencies in his
testimony” and his desire to “obtain[] leniency” in his
own case. Tibbs, 457 U.S. at 33 n.3. In addition,
“several
factors
undermined
[the
victim’s]
believability,” including that she testified that the
crimes occurred “during daylight” even though “other
21
evidence suggested that the events occurred after
nightfall” and she had “smoked marihuana shortly
before the crimes and had identified Tibbs during a
suggestive photograph session.” Id. at 36. “Rather
than risk the very real possibility that Tibbs had
nothing to do with [those] crimes,” the Florida courts
granted a new trial. Tibbs, 337 So. 2d at 791. The
state declined to retry Tibbs, having concluded “that
the police investigation of the crime was tainted from
the beginning * * * and the investigators involved
knew it.” Hugo Adam Bedau & Michael L. Radelet,
Miscarriages of Justice in Potentially Capital Cases,
40 Stan. L. Rev. 21, 163 (1987) (cleaned up). Indeed,
the “original prosecutor said if there was a retrial, he
would appear as a witness for Tibbs.” Ibid.
Under the rule applied by the court of appeals
below, however, the Florida courts would have had no
choice but to affirm Tibbs’ conviction. The testimony
of the government’s witnesses, while “discredited” or
subject to “considerable doubt,” Tibbs, 457 U.S. at 33
n.3, 36, did not defy physical reality. And that
evidence was legally “sufficient”—i.e., the jury was
entitled to find guilt. See id. at 46.
c. The result of the court of appeals’ approach will
be to increase the likelihood of wrongful convictions
and to push error correction into alternative
procedures that are more burdensome, costly, and
disruptive. Under the Rules and at common law, the
new-trial motion allowed a judge to correct a verdict
that appeared grossly unfair but did not reveal any
obvious procedural error. See Robertson, Judging
Jury Verdicts, 83 Tul. L. Rev. at 160. Where a judge
believes that the verdict was the product of something
other than reason, she could order a new trial—
without needing to identify any particular bias,
22
misunderstanding, or misconduct on the part of the
jury that led its decision astray. Id. at 160–161.
Restricting the new-trial right cranks up the pressure
for litigants to seek proof of jury bias or other
misconduct. See, e.g., Peña-Rodriguez, 137 S. Ct. 855.
Because such evidence will only rarely be present in
the trial record, any error correction on direct appeal
is generally impossible, and must instead occur via
collateral vehicles (such as habeas review) that are
more costly for all involved.
Traditional weight-of-the-evidence review, by
contrast, is far less burdensome and disruptive. If a
new trial is warranted, holding it as soon as possible
after the conclusion of the first trial promotes both the
defendant’s interest in a speedy resolution of the case,
and the prosecution’s interest in retrying the case
while witness memories and evidence are still fresh.
In most cases, the judge will reach the same
verdict as the jury or, at a minimum, will conclude
that the jury’s verdict was reasonable. Neil Vidmar &
Valerie P. Hans, American Juries: The Verdict 148–
151 (2007) (finding that judges would have reached
the same verdict in four out of five cases). But when
the trial court has serious doubts about the verdict, it
can place the decision in the hands of a second jury,
which increases the reliability of the ultimate
outcome.
If the second jury reaches the same
conclusion, that confirmation should alleviate the
judge’s concern and may make the verdict less
vulnerable to subsequent challenge. And if the second
jury reaches a different conclusion, society avoids the
tremendous cost of a wrongful conviction.
CONCLUSION
The petition for a writ of certiorari should be
granted.
23
Respectfully submitted.
BRANDON L. ARNOLD
Counsel of Record
JEFFREY C. THALHOFER
KRAMER LEVIN NAFTALIS &
FRANKEL LLP
2000 K Street, NW, 4th Floor
Washington, DC 20006
(202) 775-4500
barnold@robbinsrussell.com
NOVEMBER 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.