Motion for Acquittal (The 'Prima Facie Motion')

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 711-713

711

CHAPTER 32

MOTION FOR

ACQUITTAL (THE

“PRIMA FACIE MOTION”)

§ 32.01 The Motion for Acquittal

At the close of the prosecution’s case, it is routine for defense counsel to move for a judg-

ment of acquittal. (Terminology differs among jurisdictions. The motion is sometimes

called a “motion to dismiss,” a “prima facie motion,” a “motion for a directed verdict,” or

a “demurrer to the evidence.”) The motion or demurrer tests the legal sufficiency of the

prosecution’s evidence to sustain a verdict; t hat is, it asks the question whether a reason-

able juror (or a reasonable judge in a bench trial), crediting the prosecution’s testimony

and drawing all rational inferences in the prosecution’s favor, could find every element

of the charge proved beyond a reasonable doubt. See, e.g., Burks v. United States, 437 U.S.

1, 16–17 (1978); and see generally §§ 35 .01–35. 06 infra.

The U.S. Supreme Court held in In re Winship, 397 U.S. 358 (1970), “that the Consti-

tution requires proof of guilt beyond a reasonable doubt,” Cool v. United States, 409 U.S.

100, 104 (1972), in state as well as federal prosecutions and in juvenile as well as adult

criminal trials, see Winship, 397 U.S. at 365–68; see also Ivan V. v. City of New York, 407

U.S. 203 (1972). As a consequence, the constitutionally required standard for assessing

the sufficiency of the prosecution’s evidence is “whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979) (emphasis omitted). See also Pilon v. Bordenkircher, 444 U.S. 1 (1979)

(per curiam); Tibbs v. Florida, 457 U.S. 31, 41, 45 (1982) (dictum).

Counsel should never neglect to make a motion for acquittal at the close of t he pros-

ecution’s evidence. Many courts will not entertain a motion for a judgment of acquittal

at the close of all the evidence (see §§ 35.01, 36.01 infra) if such a motion was not first

made before the presentation of defensive evidence. And unless a motion for acquittal

has been entertained and denied on t he merits, the sufficiency of the ev idence to support

an adjudication of delinquency cannot be raised on an appeal.

In arguing the motion in a bench trial, defense counsel should try to engage the

judge in dialogue rather than to indulge in formal exhortation. The judge may deny the