Double Jeopardy Violated by Reversal of Midtrial Acquittal

The Court on Tuesday announced its decision in Smith v. Massachusetts, vacating a state conviction on Double Jeopardy grounds where the judge reversed a midtrial ruling of insufficiency of the evidence on one count. The case turned on the relatively narrow issue of whether a state rule allowing that ruling is framed to give rise to a reasonable expectation of finality; the majority expressly noted that states could ensure a different outcome simply by expressly “rendering midtrial acquittals nonfinal.” The 5-4 decision also marked the first time that Justices Stevens, Scalia, O’Connor, Souter, and Thomas have formed a five-justice majority. (Thanks to Eugene Volokh of The Volokh Conspiracy and Anton Metlitsky for pointing this out.)

Smith was charged with several counts related to a shooting, including unlawful possession of a firearm. The possession charge requires, inter alia, that the gun’s barrel be less than 16 inches. At the conclusion of the prosecution’s case, the judge ruled (under Massachusetts Rule of Criminal Procedure 25, a rule modeled on Federal Rule of Criminal Procedure 29, the directed “judgment of acquittal” rule) that the prosecution’s evidence was insufficient to prove barrel length. Before closing argument – but after the defense had rested – the prosecution pointed out state caselaw holding that witness testimony that a gun was “a pistol” sufficed to establish a jury question as to barrel length; the judge then reversed her prior ruling and sent the possession count to the jury, which convicted on all counts.

The Court held that reinstating the charge after Smith’s defense, which proceeded on the assumption of an acquittal on that charge, violated Double Jeopardy. Justice Scalia’s opinion for the Court first found that the judge’s initial ruling was an “acquittal.” He noted that the Court does not recognize, for Double Jeopardy purposes, any distinction between judge and jury acquittals, with one exception: the situation where the judge – after the jury verdict – sets aside a conviction and enters an acquittal.

The Court then asked whether the Double Jeopardy Clause permits reconsideration of the earlier acquittal after the defendants had rested. Here, the majority conceded that a state could establish that midtrial acquittals are not effective until, for example, the judgment “is signed and entered in the docket.” Massachusetts, however, had not adopted such a rule – the state Rules of Criminal Procedure provide only for reconsideration of rulings due to clerical errors or errors “arising from oversight or omission.” Consequently, the Court reasoned, “the seeming dismissal may induce a defendant to present a defense to the undismissed charges when he would be better advised to stand silent,” because (in states that evaluate sufficiency of the evidence based on the whole record, not just the prosecution case) his defense to the other charges may inadvertently generate evidence to support the dismissed charge or may lead co-defendants to “proceed on the mistaken belief that they need no longer fear the acquitted deendant’s assertion of a defense antagonistic to their own.”

Justice Ginsburg dissented, joined by the Chief Justice and Justices Kennedy and Breyer. She began by noting that the Court had unanimously determined that “the Double Jeopardy Clause [does not] bar the States from allowing trial judges to reconsider a midtrial grant of a motion to acquit on one or more but fewer than all counts of an indictment” (emphasis added). She agreed that reversal of a midtrial acquittal may prejudice the defendant, but she would analyze that as a due process, not a double jeopardy, problem. She concluded that the defendant in this case had not suffered prejudice, apparently because the initial ruling was never communicated to the jury and was corrected quickly (though after the defense’s case), the revised ruling was correct on the merits, and the defendant declined an opportunity to reopen the case. (The majority rejoined in a footnote that prejudice beyond jeopardy itself is not required by the Double Jeopardy Clause.) Justice Ginsburg concluded by citing the state rule and the Massachusetts Appeals Court’s opinion that Rule 25 simply does not preclude subsequent reconsideration of midtrial rulings of insufficiency of the evidence, implying that any reliance by the defendant on the finality of such a ruling is unjustified.