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At the close of the prosecution’s case, it is routine for defense counsel to move for a judgment of acquittal. (Terminology differs among jurisdictions. The motion is sometimes called a “motion to dismiss,” a “prima facie motion,” a “motion for a directed verdict” or a “demurrer to the evidence.”) But cf. Evans v. Michigan, 568 U.S. 313, 329 (2013) (dictum) (“Nothing obligates a jurisdiction to afford its trial courts the power to grant a midtrial acquittal, and at least two States disallow the practice. See Nev. Rev. Stat. § 175.381(1) (2011); State v. Parfait, 96,1814 (La.App. 1 Cir. 05/09/97), 693 So.2d 1232, 1242.”). The motion for acquittal tests the legal sufficiency of the prosecution’s evidence to sustain a verdict; that is, it asks the question whether a reasonable juror (or a reasonable judge in a bench trial), crediting the prosecution’s testimony and drawing all rational inferences in the prosecution’s favor, could find every element of the charge proved beyond a reasonable doubt. See, e.g., Burks v. United States, 437 U.S. 1, 16-17 (1978); Musacchio v. United States, 577 U.S. 237, 243 (2016) (“Sufficiency review essentially addresses whether ‘the government’s case was so lacking that it should not have even been submitted to the jury.’ . . . The reviewing court considers only the ‘legal’ question ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”); United States v. Hillie, 14 F.4th 677 (D.C. Cir. 2021); United States v. Ferguson, 65 F.4th 806 (6th Cir. 2023) (reversing an attempted kidnapping conviction for insufficiency, the Court of Appeals holds that no reasonable trier of fact could find that the defendant took “a substantial step” toward completion of the planned kidnapping, a necessary element for any attempt charge). More detailed discussion of this standard and its applications is found in Chapter 41 infra.

First Page

1679

Source Publication

Trial Manual 11 for the Defense of Criminal Cases

Source Editors/Authors

Anthony G. Amsterdam, Randy A. Hertz

Publication Date

2026

Document Type

Chapter

Edition

11

Rights & Restrictions

CC BY-NC-ND 4.0, https://creativecommons.org/licenses/by-nc-nd/4.0/

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