New Trials, MJOAs, and Double Jeopardy
by: Rjohnson • February 23, 2011 • no comments
While working on the New Trials chapter for the upcoming OCDLA trial notebook, I noticed this issue.
If the state's evidence is insufficient, the court can't grant a judgment of acquittal after a verdict of conviction. At that time, the remedy is limited to granting a new trial. State v. Metcalfe, 328 Or 309 974 P2d 1189 (1999). So, suppose you move for a judgment of acquittal, and the correct ruling would be to grant the motion. The judge thinks and says: "It's a close question. It's denied, but you can raise it again post-verdict." (I've had judges tell me just that. I don't know if it would be better to tell them about Metcalfe, in the hopes that they grant a proper and timely JOA, or let them try to grant a post-trial JOA and see what happens.)
If the jury convicts, you have a tough choice. You could appeal and raise the MJOA issue, or you could seek a new trial. The new trial, if granted, is quicker, and might mean you win in months rather than in years. But what if you seek a new trial, the state fixes the problem in its case, provides constitutionally-adequate evidence, and the jury convicts? Have you waived the right to appeal the MJOA ruling?
That doesn't make sense. After the state has failed to carry its burden at trial, you should have a double-jeopardy-protected, non-waivable, right to acquittal. But asking for a new trial seems like a reason for a court to say that you have waived that double-jeopardy right. I don't know of a case on point, and the issue would only come up if the court granted a new trial motion after the state's case was insufficient. But if the MJOA is a close question, and the judge thinks, on reflection, that it should have been granted, it's possible.
