# Prosecutors can appeal in the US? News to me! **URL:** \ **Category:** Factual Questions\ **Created:** [May 21, 2012, 6:15pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636 "2012-05-21T18:15:04Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [May 21, 2012, 6:15pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/1 "2012-05-21T18:15:04Z")
I hope that I am not displaying some kind of blazing ignorance when I say this, but I was completely taken by surprise by the sentence in the following news story which says “prosecutors plan to appeal.” [Story about the Tyler Clementi verdict.](http://www.nytimes.com/2012/05/22/nyregion/rutgers-spying-defendant-sentenced-to-30-days-in-jail.html?_r=2&pagewanted=1&ref=nyregion) So… prosecutors can appeal?! I thought that was never allowed in the US. I’m guessing it depends on the jurisdiction? What are the possible outcomes? Etc. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [May 21, 2012, 6:20pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/2 "2012-05-21T18:20:15Z")
They can appeal to a higher court to argue that the trial judge made a mistake in the sentencing. ---
**Author:** ![Mdcastle](https://avatars.discourse-cdn.com/v4/letter/m/958977/32.png) [@Mdcastle](https://boards.straightdope.com/u/Mdcastle)\ **Post date:** [May 21, 2012, 7:22pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/3 "2012-05-21T19:22:18Z")
Unlike some other countries, a “not guilty” verdict is absolutely final and CANNOT be appealed. Other things such as sentencing, rulings on pre-trial motions, and such CAN be appealed. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [May 24, 2012, 8:43pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/4 "2012-05-24T20:43:23Z")
It happens. We have a state’s appeal going at my office right now, based on a ruling the judge made on a pretrial motion that completely torpedoed our case. The state’s brief is in, the defendant has filed a continuance. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 24, 2012, 9:06pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/5 "2012-05-24T21:06:16Z")
What prevents a prosecutor from appealing is the Double Jeopardy Clause. But there are a number of ways a prosecutor can appeal. To expand on what **Max** said, imagine a pre-trial ruling that completely cripples a case… excludes the bloody knife, the fingerprints, and the self-made video showing the accused doing the killing. The prosecution can appeal that ruling before the trial gets underway, because jeopardy hasn’t yet come into play (“attached”) to the case. Jeopardy attaches when a trial starts – literally, the moment the jury is sworn in, or at a bench trial the moment the judge begins hearing evidence. Even after jeopardy has attached, there are options. Let’s imagine that same crippling ruling comes in the middle of the trial, after jeopardy has attached. The rules of criminal procedure typically allow for an _interlocutory appeal_, where the trial is suspended while the prosecutor asks a higher court to revisit the judge’s ruling. He can’t wait until the end of the trial, because the ruling has virtually ensured a “not guilty” verdict, from which there is no appeal. So the rules allow him to say, in effect, this ruling is so deadly to my case, I need to have it reviewed now, or I’ll lose the case. Finally, we can imagine a case where the jury returns a verdict of guilty, but the judge overrules them, finding as a matter of law that the prosecution didn’t prove their case. The judge announces an acquittal and frees the accused. The prosecution may appeal that decision, because the finder of fact returned a guilty verdict, and jeopardy is not affected. ---
**Author:** ![supershaun95062](https://avatars.discourse-cdn.com/v4/letter/s/9dc877/32.png) [@supershaun95062](https://boards.straightdope.com/u/supershaun95062)\ **Post date:** [August 3, 2013, 6:19pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/6 "2013-08-03T18:19:39Z")
The Judge is a Finder of Fact. His or Her Ruling Overruling the Guilty Verdict By The Jury and Entering An Acquittal is NOT Appealable By The Prosecutor. Double Jeopardy Applies to The Judges Ruling of Acquittal. Acquittal is the Same as A Not Guilty Verdict. ---
**Author:** ![USCDiver](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/uscdiver/32/354_2.png) [@USCDiver](https://boards.straightdope.com/u/USCDiver)\ **Post date:** [August 3, 2013, 6:27pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/7 "2013-08-03T18:27:32Z")
> [@supershaun95062](#): > > The Judge is a Finder of Fact. His or Her Ruling Overruling the Guilty Verdict By The Jury and Entering An Acquittal is NOT Appealable By The Prosecutor. Double Jeopardy Applies to The Judges Ruling of Acquittal. Acquittal is the Same as A Not Guilty Verdict. Band name! ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [August 3, 2013, 6:29pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/8 "2013-08-03T18:29:38Z")
In a jury trial, the jury is the finder of fact, not the judge. If a judge throws out a guilty verdict, it is because of a matter of law, not fact. A judgment about the law is usually appealable. That’s pretty much all appeals courts are for. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [August 3, 2013, 6:29pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/9 "2013-08-03T18:29:59Z")
> [@USCDiver](#): > > Band name! Won’t fit on the drum. ---
**Author:** ![supershaun95062](https://avatars.discourse-cdn.com/v4/letter/s/9dc877/32.png) [@supershaun95062](https://boards.straightdope.com/u/supershaun95062)\ **Post date:** [August 3, 2013, 6:37pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/10 "2013-08-03T18:37:19Z")
Many criminal cases are heard by a judge . The judge is the "trier of fact ---
**Author:** ![dstarfire](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dstarfire/32/5762_2.png) [@dstarfire](https://boards.straightdope.com/u/dstarfire)\ **Post date:** [August 3, 2013, 6:58pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/11 "2013-08-03T18:58:35Z")
> [@supershaun95062](#): > > Many criminal cases are heard by a judge . The judge is the "trier of fact It the case is being heard by a judge, than wtf is the jury doing there? The scenario of overturning a judges verdict explicitly described a judge overturning a jury’s ruling. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [August 3, 2013, 7:08pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/12 "2013-08-03T19:08:37Z")
> [@supershaun95062](#): > > Many criminal cases are heard by a judge . The judge is the "trier of fact That’s called a bench trial, and in that case the judge is both the finder of fact and of law, since there is no jury there. I don’t know that “many” criminal trials are bench trials. The vast majority that I hear about are jury trials. Generally the defense will only opt for a bench trial when they intend to make technical legal arguments rather than raise reasonable doubt as to the facts. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 3, 2013, 7:14pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/13 "2013-08-03T19:14:03Z")
> [@Bricker](#): > > Finally, we can imagine a case where the jury returns a verdict of guilty, but the judge overrules them, finding as a matter of law that the prosecution didn’t prove their case. The judge announces an acquittal and frees the accused. The prosecution may appeal that decision, because the finder of fact returned a guilty verdict, and jeopardy is not affected. > [@supershaun95062](#): > > The Judge is a Finder of Fact. His or Her Ruling Overruling the Guilty Verdict By The Jury and Entering An Acquittal is NOT Appealable By The Prosecutor. Double Jeopardy Applies to The Judges Ruling of Acquittal. Acquittal is the Same as A Not Guilty Verdict. In a jury trial, the judge is not the finder of fact with respect to any ultimate issues of fact. Also, your Caps Lock key is stuck. > [@friedo](#): > > In a jury trial, the jury is the finder of fact, not the judge. If a judge throws out a guilty verdict, it is because of a matter of law, not fact. A judgment about the law is usually appealable. That’s pretty much all appeals courts are for. > [@supershaun95062](#): > > Many criminal cases are heard by a judge . The judge is the "trier of fact Yes. But **IN A JURY TRIAL** , no. Now, if you’ll go back and look at what I wrote, you will find some carefully hidden clues that tell you I was discussing a jury trial. You are absolutely incorrect: if a judge enters a verdict of acquittal over a jury’s verdict of guilty, the prosecution can appeal, and jeopardy is not implicated. ---
**Author:** ![supershaun95062](https://avatars.discourse-cdn.com/v4/letter/s/9dc877/32.png) [@supershaun95062](https://boards.straightdope.com/u/supershaun95062)\ **Post date:** [August 3, 2013, 8:15pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/14 "2013-08-03T20:15:37Z")
If a court acquits the defendant, the prosecutor may not appeal the verdict. Appealing a verdict of “not guilty” would violate the Double Jeopardy Clause of the Fifth Amendment. Prosecutors may, however, appeal all pre-trial rulings and decisions regarding the admissibility of evidence at trial. Court Means Judge or Jury!!! ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [August 3, 2013, 8:41pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/15 "2013-08-03T20:41:03Z")
IANAL, but dare I quote [Wikipedia](http://en.wikipedia.org/wiki/Judgment_notwithstanding_verdict)? > [@](#): > > A judge is not allowed to enter a JNOV of “guilty” following a jury acquittal in United States criminal cases because it would violate a defendant’s Sixth Amendment right to a trial by jury. However, if the judge grants a motion to set aside judgment after the jury convicts, this may be reversed on appeal by the prosecution, as the verdict was different previously. So if the jury convicts, a judge may enter an acquittal - a judgement notwithstanding verdict (JNOV). The prosecution can then appeal the trial judge’s JNOV. See also [Federal Rules of Procedure, Rule 29](http://www.law.cornell.edu/rules/frcrmp/rule_29) ---
**Author:** ![supershaun95062](https://avatars.discourse-cdn.com/v4/letter/s/9dc877/32.png) [@supershaun95062](https://boards.straightdope.com/u/supershaun95062)\ **Post date:** [August 3, 2013, 9:31pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/16 "2013-08-03T21:31:07Z")
With one exception, in the United States an acquittal cannot be appealed by the prosecution because of constitutional prohibitions against double jeopardy. The U.S. Supreme Court has ruled: If the judgment is upon an acquittal, the defendant, indeed, will not seek to have it reversed, and the government cannot. U. S. v. Sanges, 144 U.S. 310 (1892). Ball v. U.S., 163 U.S. 662, 671 (1896) ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [August 3, 2013, 9:47pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/17 "2013-08-03T21:47:05Z")
Can’t the prosecution appeal if they have evidence that the judge or jury was bribed by the defendant? ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [August 3, 2013, 10:06pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/18 "2013-08-03T22:06:19Z")
> [@Alley\_Dweller](#): > > Can’t the prosecution appeal if they have evidence that the judge or jury was bribed by the defendant? In that case, the prosecution can simply try the defendant again. If he bribed the jury or judge, he was never in jeopardy, therefore double jeopardy does not apply. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 3, 2013, 10:06pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/19 "2013-08-03T22:06:34Z")
> [@supershaun95062](#): > > With one exception, in the United States an acquittal cannot be appealed by the prosecution because of constitutional prohibitions against double jeopardy. The U.S. Supreme Court has ruled: > If the judgment is upon an acquittal, the defendant, indeed, will not seek to have it reversed, and the government cannot. U. S. v. Sanges, 144 U.S. 310 (1892). Ball v. U.S., 163 U.S. 662, 671 (1896) Shut up. You’re spouting factually wrong information n GQ. If the trial judge acquits because he is the finder of fact, then it’s an acquittal, yes. And even if there’s a jury empaneled, but they don’t get to render a verdict because the judge acquits, that too is protected by the Double Jeopardy Clause. But if there’s a jury, and if the jury has returned a verdict of guilty, and then the trial judge sets aside that verdict and enters a judgment of acquittal, that ruling is subject to appeal and reversal, and the DJ clause is NOT implicated. We learn this from abundant case law. See, e.g., _US v. Wilson_, 420 U.S. 332, 352: > [@The Supreme Court of the United States](#): > > These interests, however, do not apply in the case of a post-verdict ruling of law by a trial judge. Correction of an error of law at that stage would not grant the prosecutor a new trial or subject the defendant to the harassment traditionally associated with multiple prosecutions. We therefore conclude that, when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause. (Emphasis added) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 3, 2013, 10:10pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/20 "2013-08-03T22:10:33Z")
> [@Alley\_Dweller](#): > > Can’t the prosecution appeal if they have evidence that the judge or jury was bribed by the defendant? If I can immodestly link to a Mailbag column I wrote for the Straight Dope several years [ago, this has happened:](http://www.straightdope.com/columns/read/3032/what-happens-if-you-confess-to-a-crime-after-being-found-not-guilty) > [@](#): > > Finally, it’s worth observing that in order for double jeopardy to apply, you must have first genuinely been in jeopardy. Cook County, Illinois resident Harry Aleman learned this lesson after successfully bribing Judge Frank Wilson to acquit him on murder charges in 1977. After the bribery came to light, Aleman was re-tried on the original murder charges. He raised a double jeopardy defense to this second trial, but the courts ruled that his first trial was essentially a sham, and jeopardy never actually attached. (Normally jeopardy “attaches” – comes into play – the moment the jury is sworn in, or at a bench trial the moment the judge begins hearing evidence). [Next page](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636.md?page=2)