During a criminal trial, the defendant may move to have the judge enter a verdict of not guilty before the proceedings end and the matter is left up to the jury. (The judge may also render such a verdict without the defendant’s motion.)
This is referred to a “motion for required finding of not guilty” and it can be made by a criminal defendant twice during his trial: once at the conclusion of the prosecutor’s opening statement and, if initially unsuccessful, again after the defendant has present his evidence to the court.
The motion is permitted by Massachusetts Criminal Procedure Rule 25(a) which reads:
The judge on motion of a defendant or on his own motion shall enter a finding of not guilty of the offense charged in an indictment or complaint or any part thereof after the evidence on either side is closed if the evidence is insufficient as a matter of law to sustain a conviction on the charge. If a defendant’s motion for a required finding of not guilty is made at the close of the Commonwealth’s evidence, it shall be ruled upon at that time. If the motion is denied or allowed only in part by the judge, the defendant may offer evidence in his defense without having reserved that right.
The odds of such a motion being granted are slim. Though the standard that a trial judge should apply when considering the motion is not exactly crystal clear. According to the SJC,
we have said in one form of words or another that a motion for a directed verdict should be denied “if all the circumstances including inferences [that are not too remote according to the usual course of events] are of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.
Commonwealth v. Latimore, 378 Mass. 671.
Despite the slim chances of success, the defendant’s lawyer should make a motion for required finding of not guilty after the prosecution’s opening argument and again, if necessary, at the close of the defendant’s case.
Law Office of Justin R. McCarthy 