Section 14.37 Insufficient Evidence

• Library: Criminal Practice 2012 Supp

1. (§14.37) Insufficient Evidence

In a denial defense, the prosecution is put to the test. The prosecutor must establish the guilt of the defendant for the offense charged beyond a reasonable doubt. If the prosecution does not succeed in this burden, the defendant should be acquitted upon motion at the close of the state’s evidence, at the close of all the evidence, or even after a verdict of guilty. The court should even do so on its own motion when appropriate. Rule 27.07. But more often, the question of the sufficiency of the evidence is an issue for the jury. A new trial may be granted upon good cause shown. Rule 29.11. Thus, it would appear that a court could grant a new trial because the verdict was against the weight of the evidence. State v. Gregory, 96 S.W.2d 47 (Mo. 1936). If the court grants the motion because there was insufficient evidence, no new trial may be had, and the charge must be dismissed. On appeal, even when the sufficiency of the evidence has not been preserved as a ground for error, it is an issue that may be reviewed as plain error. State v. McClunie, 438 S.W.2d 267 (Mo. 1969).

Credibility of the witnesses for both the prosecution and the defense is generally the determining issue. Thus, a general denial often involves discrediting the victim, the prosecution witnesses, or the police. A general denial also might involve attacks on persons mentioned in evidence who do not testify at the trial. The defense may attempt to show that the witness is mistaken or lying. One of the major decisions to be arrived at is whether the defendant will testify. This may involve considerations of:

· the defendant’s previous criminal convictions;

· the defendant’s...