A jury convicts; trial judge sets aside the conviction & acquits; can the prosecutor appeal?

[md2000]

@Hari_Seldon

One question that has not been raised is what if the judge orders a directed verdict of not guilty? I assume that is not appealable.

In Canada a not guilty verdict is appealable. There was a case several decades ago involving an abortion doctor. He was acquitted by the first trial. It was genuinely a case of jury nullification since the facts were not in dispute and the verdict was unanimous. This was appealed and the appelate judge not only granted the appeal but reversed the jury and issued a guilty verdict! This was reversed on appeal and a new trial ordered. The jury was hung and on one further trial had the same result before the crown (government) abandoned the case. After that there was no further attempt to prosecute abortion cases and the law was eventually repealed.

The law changed because of Dr. Morgentaler. The Quebec appeal court overrode the jury’s “not guilty” snd declared him guilty; it was appealed to the Supreme Court. That court reversed the finding and ordered a new trial instead. The (Catholic, anti-abortion) minister of Justice offered a reporter bets that this unprecedented reversal would never happen again in his lifetime. The reporter should have taken the bet - the Quebec court reversed another “not guilty” jury verdict while waiting for the Supreme court.

(The stodgy traditional heirachy took several years to “get it”. Morgentaler was prosecuted and often found not guilty until one of his cases resulted in Canada’s abortion laws, like Roe v Wade, being found unconstitutional. Because of uncompromising political views, Canada has had no law whatsoever regarding abortion for 2 decades.)

IIRC, the Supreme court said substituting “guilty” for a jury verdict of “not guilty” is not allowed. A reversal results in a lower court being ordered to re-hear the case; see the trial(s) of Paul Morin for the murder of Christine Jessop. A not guilty was overturned due to improper instructions and a new trial ordered. At that trial he was found guilty. After another re-trial, he was finally found innocent.

Generally, today, a jury verdict of “not guilty” will stand in Canada. Not sure (IANAL) if that is embedded in stone. But basically, if you couldn’t convince 12 out of 12 the first time around, what are the odds you will next time?

And remember, appeals are over points of law; you cannot argue “I think the trial judge / jury decided wrong on the facts” - i.e. they should have believed witness A over witness B - unless the mistake is blatant. Facts are for the court hearing the actual witnesses to decide. Appeals just hear lawyers blathering about the law.

As for “speedy trial…” yes, people are indicted years after the fact for murder; but generally, unless it’s because important new evidence has come to light (i.e. we just got the accused’s DNA and found it’s a match) the prosecutor cannot sit on evidence they’ve known for a decade and then decide to charge you.

[Lemur866]

@aldiboronti

I think I understand but can it work the other way round, ie a jury does not convict and a judge steps in and says, “I’m reversing that decision. No reasonable person could fail to convict in light of the overwhelming evidence the prosecution presented.”

No, the Judge cannot set aside an acquittal, or direct a guilty verdict. He can direct a not guilty verdict, or he can set aside a guilty verdict, but not the reverse. This is in the United States, other countries may have other rules.

[Amasia]

@Lemur866

No, the Judge cannot set aside an acquittal, or direct a guilty verdict. He can direct a not guilty verdict, or he can set aside a guilty verdict, but not the reverse. This is in the United States, other countries may have other rules.

This is correct for criminal cases. Just to clarify, there is a procedure for civil cases in the US in which a judge may rule of either side, known as judgment as a matter of law. The judge must be petitioned by one of the parties to do so, within a specific sequence related to evidence presented in the case.

[llcoolbj77]

@aldiboronti

I think I understand but can it work the other way round, ie a jury does not convict and a judge steps in and says, “I’m reversing that decision. No reasonable person could fail to convict in light of the overwhelming evidence the prosecution presented.”

No. Not at all. If a jury reaches a verdict of not guilty… that’s it. Done and done. No appeal by the prosecution. When 12 jurors decide unanimously that the defendant is not guilty, it is OVER.

If a jury convicts, and the judge sets the verdict aside on same argument of law… that can be appealed by the prosecution.

[Telemark]

@llcoolbj77

No. Not at all. If a jury reaches a verdict of not guilty… that’s it. Done and done. No appeal by the prosecution. When 12 jurors decide unanimously that the defendant is not guilty, it is OVER.

IANAL, but there’s one possible exception, I think.

If later rulings find that the jury was compromised (jury tampering, or the judge was on the take) then it may be decided that the defendant was never in jeopardy. Double jeopardy won’t apply and the case can be retried.

[pravnik]

@Telemark

IANAL, but there’s one possible exception, I think.

If later rulings find that the jury was compromised (jury tampering, or the judge was on the take) then it may be decided that the defendant was never in jeopardy. Double jeopardy won’t apply and the case can be retried.

Yes, good point - a fraudlent trial is no trial at all for double jeopardy purposes. A Chicago mobster named Harry Aleman was famously retried and convicted for the same charge that he had been previously acquitted of. Because the trial judge was bribed into acquitting him in a bench trial, he was never at risk of conviction and jeopardy had never truly attached.

[llcoolbj77]

@Telemark

IANAL, but there’s one possible exception, I think.

If later rulings find that the jury was compromised (jury tampering, or the judge was on the take) then it may be decided that the defendant was never in jeopardy. Double jeopardy won’t apply and the case can be retried.

I suppose. I can’t imagine a judge being on the take for the benefit of the defendant. Although I frequently think my judges are on the take for the benefit of the prosecutors.

I actually tried a case where I can’t decide if it was a jury nullification or a true not guilty. I represented a tiny girl (maybe 90 pounds soaking wet) who was on trial for felony assault and batter of a family member. It was a felony because it would be her fifth if convicted, not because the nature of the assault was bad (she grabbed his arm to prevent him leaving). Dude was about 230lbs. Big guy. And actually on probation for assaulting her previously.

I ripped the accuser a new one on cross-exam, mainly because his testimony differed from what he told police, he had a prior felony conviction, and he was on probation for assaulting my client. But my client testified (her choice), and basically admitted that she grabbed his arm to prevent him from leaving.

Jury deliberated for approx. 10 minutes. I knew it was a not guilty when the jurors came into the courtroom carrying their coats and bags. (Had they found her guilty they would have had to stick around for sentencing).

[robert_columbia]

@Polycarp

A directed verdict is typically used when, as a matter of law the evidence presented is such that no reasonable man could arrive at the contrary verdict. For example, the prosecution may have completely failed to orovide any evidence establishing a necessary element of the alleged crime: say I am being tried for the crime of fraudulently selling you a fake antique Victorian armoire, holding it out to be the real thing. To constitute criminal fraud, I would have had to knowingly misrepresent the piece as something it is not. There is no dispute I sold it to you, and experts have testified that it was a 1930s replica, not the real thing. (And no doubt you’d win at a civil suit. But I inherited it from my grandfather and always thought it was the real thing. The prosecution utterly failed to prove I knowingly defrauded you. From the judge’s POV, until the prosecution rested there was always the chance he might introduce evidence to show it was knowing fraud. And my lawyer, not the sharpest tack in the box, failed to move for summary dismissal. Since a jury has been empaneled, they not the judge are the judges of the facts – whether the evidence given meets the definition of criminal fraud. Normally his charge to the jury would outline the elements they need to look at in reaching their verdict. But in this case, one required element is not even under doubt, there is just plain no evidence even suggesting it. So he tells them they have to acquit, and why.

His opinion about the facts would in general be irrelevant; the most he might do is to give them some general guidance iun evaluating the evidence. Buit this is a matter of law – one required element of the crime is just plain not there. For it to be criminal fraud, the prosecution needed to prove I knowingly defrauded you – and they did not do so. This is different from letting the jury gauge whether someone’s actions were malicious, reckless, etc. – the prosecution was required to prove that in selling you the armoire, I knew that it was not what I represented to you as being – and they didn’t even attempt to do so. On the evidence presented, no jury could find that I knowingly defrauded you – so the judge is obliged to direct an acquittal.

But, if there was a scintilla of evidence that could lead to your guilt, then isn’t that solely the jury’s domain? I.e. if the evidence was as you stated, but in addition your sister came and testified that she has a vague memory that when she was 8, you told her that grampa’s armoire was fake. It would then be up to the jury to decide what really happened and what you really knew and intended.

[Polycarp]

@robert_columbia

But, if there was a scintilla of evidence that could lead to your guilt, then isn’t that solely the jury’s domain? I.e. if the evidence was as you stated, but in addition your sister came and testified that she has a vague memory that when she was 8, you told her that grampa’s armoire was fake. It would then be up to the jury to decide what really happened and what you really knew and intended.

I believe you’re correct. Perhaps a Doper-at-Law can clarify, or suggest a better example of a directed verdict situation?

[Grateful-UnDead]

Very interesting discussion going on here.

The points raised above bring up another question.

What if the jury decides that “the law” is unjust or unconscionable, and decides on a “not guilty” verdict on the basis of their own conscience, despite the facts clearly showing “guilty” in law.

In this instance, would the judge nullify the verdict and reverse the verdict; or would the case serve as a precedent and cause a change in law? Ie: if the judge didn’t nullify the verdict, would it result in a change in “the law”?

[Koxinga]

If someone is acquited of murder, the act of murder doesn’t cease to be a crime.

ETA: could you tell us why, after all of the preceding discussion, you have the impression that a judge has the ability to “reverse” an acquittal?

[Grateful-UnDead]

@Koxinga

If someone is acquited of murder, the act of murder doesn’t cease to be a crime.

ETA: could you tell us why, after all of the preceding discussion, you have the impression that a judge has the ability to “reverse” an acquittal?

Yes, I got the points noted above.

My follow up question is a hypothetical.

[Polycarp]

@Grateful-UnDead

Very interesting discussion going on here.

The points raised above bring up another question.

What if the jury decides that “the law” is unjust or unconscionable, and decides on a “not guilty” verdict on the basis of their own conscience, despite the facts clearly showing “guilty” in law.

In this instance, would the judge nullify the verdict and reverse the verdict; or would the case serve as a precedent and cause a change in law? Ie: if the judge didn’t nullify the verdict, would it result in a change in “the law”?

What you’re speaking of here is jury nullification (a jury acquits someone who is obviously guilty of a law they consider unjust, at least as applied to his case), and there have been a number of threads on the topic; search for them for a much more in-depth discussion than any summary I can give. And, again TTBOMK and subject to caveats above, such a verdict is irreversible.

[IAmNotSpartacus]

Can anyone elaborate on the legal theories supporting Canada’s apparently legal procedure of not guilty verdicts being appealed? Anyone with a legal background able to reconcile this with the not guilty verdict not being able to be appealed in the US? I always thought our legal systems were pretty similar, interesting to see such a vast divergence on a pretty critical area

[Northern_Piper]

@md2000

[QUOTE=Hari Seldon]
In Canada a not guilty verdict is appealable. There was a case several decades ago involving an abortion doctor. He was acquitted by the first trial. It was genuinely a case of jury nullification since the facts were not in dispute and the verdict was unanimous. This was appealed and the appelate judge not only granted the appeal but reversed the jury and issued a guilty verdict! This was reversed on appeal and a new trial ordered. The jury was hung and on one further trial had the same result before the crown (government) abandoned the case. After that there was no further attempt to prosecute abortion cases and the law was eventually repealed.

The law changed because of Dr. Morgentaler. The Quebec appeal court overrode the jury’s “not guilty” snd declared him guilty; it was appealed to the Supreme Court. That court reversed the finding and ordered a new trial instead.

…

IIRC, the Supreme court said substituting “guilty” for a jury verdict of “not guilty” is not allowed. A reversal results in a lower court being ordered to re-hear the case; see the trial(s) of Paul Morin for the murder of Christine Jessop. A not guilty was overturned due to improper instructions and a new trial ordered. At that trial he was found guilty. After another re-trial, he was finally found innocent.
[/quote]

No, this is not a correct summary of the first Morgentaler case.

The first Morgentaler case was in the 70s in Quebec. He was acquitted by the jury. The Crown appealed to the Quebec Court of Appeal (not a single appeals judge), which granted the Crown’s appeal, overturned the verdict and entered a conviction. Dr. Morgentaler appealed that to the Supreme Court of Canada, which upheld the conviction. At that time the Criminal Code allowed the appeals court to overturn a jury finding of not guilty and substitute a conviction, and the Supreme Court held that power was properly used in that case: Morgentaler v. The Queen, [1976]1 S.C.R. 616:

Appellant was accused of having procured the miscar riage of a female person by the manipulation and use of an instrument, contrary to s. 251(1) of the Criminal Code. During the trial which took place before a judge and jury, he admitted the act, but relied upon the common law defence of necessity and the statutory defence found in s. 45 of the Criminal Code.

A verdict of acquittal was returned. A unanimous decision of the Court of Appeal set aside this verdict and a conviction was entered with a direction to the trial judge to pass sentence. Hence the appeal to this Court as of right under s. 618(2) of the Criminal Code, on the basis that s. 251 of the Criminal Code is unconstitutional; that it is inoperative by virtue of the Canadian Bill of Rights; that the preferred indictment was void as constituting an abuse of power by the provincial Attorney General; that the accused was entitled to the benefit of the defences of necessity and of s. 45; that the operation performed was not within the intendment of s. 251; and that the Court of Appeal could not substitute a conviction for an acquittal in a jury trial.

Held (Laskin C.J. and Judson and Spence JJ. dissenting): The appeal should be dismissed.

The Court found that the relevant provision o f the Code authorised an appeals court to substitute a gulity verdict.

Now, since then, Parliament has amended the Code to provide that an appeals court cannot substitute a guilty verdict where a jury acquits. The Crown can appeal from a jury’s acquittal, on points of law, but if the appeals court allows the Crown appeal, the most it can do is order a new trial. However, in the case of an acquittal by a judge sitting alone, the appeals court still can enter a conviction, if it concludes that on the facts as found by the trial judge, the legal elements for the offence are made out. This situation arises very rarely, in my experience, but it does happen occasionally.

@md2000

Generally, today, a jury verdict of “not guilty” will stand in Canada. Not sure (IANAL) if that is embedded in stone. But basically, if you couldn’t convince 12 out of 12 the first time around, what are the odds you will next time?

I wouldn’t say it’s easy to get a jury verdict overturned on appeal, but it’s not as rare as this comment suggests.

And, if the Crown can show a significant legal error by the trial judge in a jury case, there may well be a conviction on re-trial. For instance, if the trial judge excluded a key piece of Crown evidence, and the appeals court ruled it should have been admitted, there could easily be a different result on re-trial. The new jury would hear different evidence than the first jury did, and if the new evidence is significant, there could be a different result.

[Northern_Piper]

@IAmNotSpartacus

Can anyone elaborate on the legal theories supporting Canada’s apparently legal procedure of not guilty verdicts being appealed? Anyone with a legal background able to reconcile this with the not guilty verdict not being able to be appealed in the US? I always thought our legal systems were pretty similar, interesting to see such a vast divergence on a pretty critical area

Our constitutional provision uses the phrase “finally acquitted” or “finally convicted” in the double jeopardy provision:

[QUOTE=Canadian Charter of Rights and Freedoms]
11. Any person charged with an offence has the right:
…
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;
[/quote]

This has been interpreted to allow for appeals from acquittals, on the theory that if the trial judge made a fundamental error of law (e.g. - refused to allow a key piece of Crown evidence to be admitted), then it is appropriate for there to be a new trial.

However, it does not allow for Crown appeals on questions of fact, since those depend entirely on the credibility of the witnesses and the trier of fact’s assessment of the testimony.

The accused if convicted has broader appeal rights than the Crown, and can appeal on the basis that the conviction is unsafe; the Crown’s right of appeal is limited to clear errors of law.

[Northern_Piper]

@Grateful-UnDead

IMHO, his role should be limited to ensuring that the technical aspects of due PROCESS are observed, as opposed to your response which says that his role is to direct the jury to his opinion of the verdict.

So to repeat my question: why does he have any influence over the verdict? Ie: why is the opinion of one judge worth more than that of twelve jurors?

Your question is partly why I asked the question - to understand the difference between the American and Canadian systems. In Canada, the trial judge doesn’t have the power to set aside the jury’s verdict. The trial judge does have the power, at the conclusion of the Crown’s case, and only on the motion of the defence, to consider whether there should be a directed verdict of acquittal, on the basis that the Crown has failed to lead any evidence on a particular element of the offence. That is a question of law, not a question of fact.

However, if the judge allows the matter to go to the jury, then the judge does not have any power to set aside the jury’s verdict, since the jury is the sole judge of the facts, and the application of the law to those facts.