Federal Rule of Criminal Procedure 33(a) authorizes a judge to “grant a new trial if the interest of justice so requires.” This rule has traditionally been understood to “confer[] broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.” United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992).
But in a ruling yesterday, a panel of the Second Circuit held “a district court may not grant a Rule 33 motion based on the weight of the evidence alone unless the evidence preponderates heavily against the verdict.” United States v. Archer, ___ F.3d ___, 2020 WL 5924196, at *4 (2d Cir. Oct. 7, 2020). And in reviewing the evidence, the “district court must ‘defer to the jury’s resolution of conflicting evidence'” and consider the “trial evidence as a whole.” Id. at *5.
The “preponderance standard,” we all know, is met when something is “more likely than not” true. Bourjaily v. United States, 483 U.S. 171, 175 (1987).
So if a trial ends with a verdict of guilty, Archer says a new trial can’t be granted (at least on weight-of-evidence grounds) unless the evidence makes likely — “heavily” likely, in fact — that the defendant is not guilty. But if that’s the case, then the remedy should not be a new trial but a judgment of acquittal under Rule 29: the government had its shot at proving guilt and failed. When the entirety of the trial evidence “preponderates heavily against” guilt even after one resolves any conflicts in favor of conviction, a rational jury could not have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
If Archer means what it says, such that a defendant who meets the standard for a new trial necessarily also meets the standard for a judgment of acquittal, one might wonder what work Archer leaves Rule 33 to do.
One might also wonder why the Archer panel reinstated the jury’s verdict rather than remand the case for reconsideration in light of the new “preponderates heavily against” rule. The grant of a new trial is reviewed for “abuse of discretion,” Archer, at *4, and it is difficult to see how the judge here abused hers: she “relied on this Circuit’s prior case law,” the panel said, failing only to anticipate and apply a new rule “we are clarifying today.” Id. at *6.
Rather than put it to the judge to perform the analysis in the first instance, the appellate panel did so itself, reviewing the trial evidence in close detail under its newly-announced standard, see id. at *6-*13, and concluding the evidence did not “preponderate[] heavily against the verdict.” Id. at *13.
A notable ruling indeed!
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