How Does An Appellate Court Find A Conviction Contrary To The Weight Of The Evidence?
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In my last post about sexual assault myths, I referenced a case involving three sexual assault convictions overturned by the Pennsylvania Superior Court. (The case is formally Commonwealth v. Claybrook; here’s the Philadelphia Inquirer’s write-up.) The jury convicted and the trial judge denied the defendant’s motion for a new trial, but the Superior Court reversed, holding that the convictions were “contrary to the weight of the evidence,” and so remanded the case for a new trial. The prosecution appealed to the Pennsylvania Supreme Court, which is now considering the case.
This sort of issue is a bit distant from my normal work on civil litigation, but it implicates a fundamental principle of how our courts are supposed to function, hence my interest. In general, appellate courts exist to review legal issues, not factual issues. They don’t hear any testimony. They don’t see any witnesses shift and pivot in their seat, fumble with their words, look to their lawyer for help, or observe any other non-verbal cues that we associate with a person lying, being confused, or telling the truth. They read a cold transcribed record, where “I shot the clerk” may mean something else entirely.
As a civil lawyer, I find it strange to see an appellate court ever overrule a jury’s factual findings where those factual findings were also sustained by the trial judge. In civil trials, unless the trial judge made a legal error — like allowing in prejudicial evidence, excluding probative evidence, or giving a flawed jury instruction — then the verdict will almost always stand on appeal. The closest we have in civil litigation to “weight of the evidence” is “judgment notwithstanding the verdict,” which ends the case in favor of the party that lost in front of the jury, but that’s essentially reserved for the trial court to decide, not the appellate court, and the standard is astonishingly strict:
In reviewing the propriety of an order granting or denying judgment notwithstanding the verdict, we must determine whether there was sufficient competent evidence to sustain the verdict. We view the evidence in the light most favorable to the verdict winner and give him or her the benefit of every reasonable inference arising therefrom while rejecting all unfavorable testimony and inferences. Moreover, a judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Finally, a judge’s appraisement of evidence is not to be based on how he would have voted had he been a member of the jury. A court may not vacate a jury’s finding unless the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.
Birth Center v. St. Paul Companies, Inc., 787 A. 2d 376 (Pa. 2001)(quotations and citations omitted). In the Birth Center case, I hasten to add, the trial court granted judgment n.o.v., overturning the jury’s verdict, but the Pennsylvania Supreme Court re-instated the jury’s verdict. It’s the jury’s province, not the court’s, to decide the facts. Like I said, outside of reversals for purely legal issues, judgment n.o.v. is exceedingly rare.
In criminal trials, however, there’s the “weight of the evidence” challenge, which I can only describe as a request for a do-over. In contrast to a motion for judgment n.o.v. in the civil context, a defendant’s motion for a new trial on the weight of the evidence allows the trial court to independently review the facts decided by the jury, with a far less strict standard than “no two reasonable minds could disagree:”
A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A. 2d 745 (Pa. 2000)(quotations and citations omitted).
Justice demands we have a check on the jury system like that. Justice is blind, but juries sometimes are not — sometimes they’re genuinely confused, given the complicated way in which trials are run — and the trial judge stands as a bulwark against manifest injustices. The “weight of the evidence” challenge was perhaps most famously granted by Judge James Edwin Horton in the Scottsboro Boys re-trial, where he overturned the jury’s conviction of the young men for rape. (Judge Horton knew the ruling would cost him his re-election, and it did.)
But the argument for allowing trial judges to overrule juries and order re-trials — i.e., the fact that judges are also there seeing the testimony and evidence — falls apart when we look to appellate courts. As the Pennsylvania Supreme Court said in considering these problems, “Whereas a trial court’s decision to grant or deny a new trial is aided by an on-the-scene evaluation of the evidence, an appellate court’s review rests solely upon a cold record. Because of this disparity in vantage points an appellate court is not empowered to merely substitute its opinion concerning the weight of the evidence for that of the trial judge.” Commonwealth v. Brown, 648 A. 2d 1177 (Pa. 1994).
In Brown, the prosecutors argued that an appellate court could never overrule a trial court’s decision to deny a motion for a new trial on the weight of the evidence. The Pennsylvania Supreme Court rejected that argument, holding, in somewhat circular fashion:
An appellate court has the duty to review the trial court’s denial of a defendant’s motion for a new trial on the grounds that the verdict was against the weight of the evidence. The purpose of that review is to determine whether the trial court abused its discretion and not to substitute this Court’s judgment for that of the trial court.
Id. But how does an appellate court determine if “the trial court abused its discretion” in denying a motion for a new trial based on the weight of the evidence?
The United States Supreme Court recognized that considering witnesses’ credibility — something everyone agrees appellate courts are ill-equipped to do — was an essential part of the “weight of the evidence” review process:
When a motion for new trial is made on the ground that the verdict is contrary to the weight of the evidence, the issues are far different…. The [trial] court need not view the evidence in the light most favorable to the verdict, it may weigh the evidence and in so doing evaluate for itself the credibility of the witnesses. If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.
Tibbs v. Florida, 457 U.S. 31, 38 n. 11 (1982)(quotation omitted, emphasis added)(rejecting argument that re-trial after grant of motion for new trial would constitute double jeopardy). But how does an appellate court analyze the credibility of witnesses it never saw testify?
Judge Olszewski of the Pennsylvania Superior Court aptly summed up the problem in a dissent in Commonwealth v. Murray:
The majority’s citation of Commonwealth v. Coyle aptly illustrates the irreconcilable conflict that appellate review of challenges to the weight of the evidence creates with the traditional function of the fact-finder. After stating that the fact-finder is free to believe all, part or none of the evidence, the majority cites with approval a decision granting a new trial because the jury apparently disregarded expert testimony. Why is it apparent that the testimony was disregarded? Because the jury did not believe it even though it was unimpeached. The law is clear, however, that a jury may believe all, part or none of the evidence presented even where that evidence is uncorroborated or uncontradicted. According to the majority, a fact-finder is free to believe all, part or none of the uncontradicted evidence; however, an appellate court, after reviewing a cold record, may grant a new trial if it determines that the jury should have believed the evidence presented. Thus, the fact-finder is free to reach the same result the appellate court would have reached if presented with the same evidence. Despite protestations to the contrary, the appellate court becomes the final finder of fact in these cases.
Such a challenge to the credibility determinations may properly be addressed to the trial court who has also observed the witnesses as they testify. The trial court may exercise its sound discretion and grant a new trial where the verdict shocks the court’s conscience. Appellate courts, however, having had no opportunity to observe the evidence as it was presented, are uniquely unsuited to question the credibility determinations of the fact-finder. A cold record produces thin ice on which to support a weight of the evidence claim.
Commonwealth v. Murray, 597 A. 2d 111 (Pa. Super. Ct. 1991). And that’s exactly the problem in the Claybrook case, and why I raised in my prior post the issues about rape myths in the judicial system. How did the Superior Court reach its conclusion that the trial court had ‘abused its discretion’ in denying the defendants’ motion to overturn the convictions because the convictions were against the weight of the evidence? By reviewing the victim’s testimony and finding it not to be credible based upon their own preconceptions about what sexual assault cases ‘should’ look like — the exact thing they are not permitted to do.
There’s another problem, too. When an appellate court sends the case back down for another trial, what, exactly, are they looking for in the new trial? The same evidence and testimony? How would that change things?
Some courts, including the Supreme Court in Tibbs, have tried to dodge this issue by arguing that the standard is even higher for “successive convictions.” See, e.g., State v. Oasheim, 353 NW 2d 291 (N.D. 1984). But what sense does that make? Why should an appellate court, reviewing just a cold record, be allowed to undo the work of a jury and a trial judge and force another round of proceedings where there were no legal problems with the conviction in the first place?
I hope Claybrook opens that big issue — whether an appellate court can ever reverse a trial court’s denial of a “weight of the evidence” motion — back up for the Pennsylvania Supreme Court. I’d like to see if anyone can answer Judge Olszewski’s argument that the only way an appellate court can order such a reversal is by considering the credibility of the witnesses on a cold record. Part of me believes strongly in the need for as many checks and balances as we can have in the criminal justice system, but I just can’t shake the idea that the “check” of appellate courts reviewing a trial court’s denial of a “weight of the evidence” challenge is nothing more than a sophisticated gloss over the exercise of witness and defendant stereotyping.