Sufficiency of the Evidence

SUFFICIENCY OF THE EVIDENCE : SUFFICIENCY OF THE EVIDENCE

POP QUIZ! : POP QUIZ! What is the correct standard in Kentucky for an appellate court to use to review a directed verdict claim? A. Under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty B. the evidence is such that the trial judge can conclude that reasonable minds might fairly find guilt beyond a reasonable doubt C. is there more than a mere scintilla of evidence D. if the evidence is equally consistent with innocence as with guilt

Slide 3 : The federal standard of review is: A.- is there any evidence, direct or circumstantial, from which guilt can be inferred? B. 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. C- neither of the above

Slide 4 : In reviewing the record when deciding a sufficiency of the evidence claim, the Court can: A. ask itself whether it believes that the evidence established guilt beyond a reasonable doubt B. review the evidence in a neutral manner to see if any rational trier of fact could have found the essential elements beyond a reasonable doubt C. look at facts in the record but not admitted at trial in assessing sufficiency D. none of the above

Slide 5 : Defendant convicted of setting fire to land of another under statute which required land to be timberland. CW proved fire was put out by part-time forestry workers, much of county lies in Daniel Boone National Forest, prosecutor referred to your timberland or your land up there when questionning the victim, and the victim said where the land was located. The Court of Appeals held: A. evidence was sufficient B. evidence was not sufficient

Federal Standard of Review : Federal Standard of Review

Slide 7 : In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). the Court held for the first time that the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”

Jackson v. Virginia, 443 U.S. 307-18, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) : Jackson v. Virginia, 443 U.S. 307-18, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) In a case on habeas review, the Supreme Court rejected the Thompson V. Louisville test of whether there was any evidence to support a state conviction.

Slide 9 : The Court held: Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.

Slide 10 : [T]he critical inquiry of review of the sufficiency of evidence to support [a] criminal conviction must be ... to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. ….

New Standard : New Standard [T]he relevant question is 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.

Slide 12 :

QUIZ #2 ANSWER : QUIZ #2 ANSWER

Slide 14 : Can anyone think of a reason not to use the federal standard?

Kentucky Standard of Review : Kentucky Standard of Review

Slide 16 : Trowel v. Comm., 550 S.W.2d 530 (Ky. 1977). If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal

Slide 17 : Com. v. Sawhill, 660 S.W.2d 3 (Ky. 1983) set forth the appellate standard of review. Citing Trowel with approval, the Court held: If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal. “It should be remembered that the trial court is certainly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence. Obviously, there must be evidence of substance.”

Slide 18 : The Court set out the standard to be used by the trial court in deciding whether to grant directed verdict- With the evidence viewed in the light most favorable to the Commonwealth, if the totality of the evidence is such that the trial judge can conclude that reasonable minds might fairly find guilt beyond a reasonable doubt, then the evidence is sufficient and the case should be submitted to the jury. If the evidence cannot meet this test it is insufficient and a directed verdict of acquittal should be granted.

Com. v. Benham, 816 S.W.2d 186(Ky.1991). : Com. v. Benham, 816 S.W.2d 186(Ky.1991). Court endorsed Sawhill and Trowel. On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal. Sawhill.

Slide 20 : Both Sawhill and Benham try to boil everything down to a simple rule of reasonableness. ….but Sawhill says: “Nothing in this decision should change any of the original grounds for a directed verdict.”

Slide 21 : Sawhill acknowledeges additional requirements besides reasonableness: Reasonable inferences More than a scintilla 3. Evidence of substance

Slide 22 : If circumstantial evidence would equally support innocence as well as guilt, would a conviction violate due process? reasonable doubt versus preponderance standard….? shifting burden to defendant….?

Slide 23 : On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

Slide 24 : As stated in Sawhill, there must be evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.

Slide 25 : What is a scintilla? What is evidence of substance? What does reasonable mean? Sawhill and Benham don’t define these terms.

Slide 26 : Benham was in the area of the barn fire and had an opportunity to commit the crime. An officer and a bystander saw Benham wet and muddy which could have come from the area where the fire started; he had a motive because the mayor had had Benham arrested previously…

Slide 27 : Benham admitted setting the fire, and there was a handwritten statement by his cousin which documented Benham's admission of guilt. Benham's statement to the police was that he noticed smoke, but neither smoke nor fire was visible from the road. Benham also said he saw sparks and juice from electrical wires through which no current flowed.

Slide 28 : Johnson v. Com., 885 S.W.2d 951 (Ky. 1994) The defendant may have run a red light when he crashed into a woman’s truck and killed her. Johnson: A mere possibility that a defendant may have done wrong is no more than a scintilla.

Slide 29 : Sawhill approved Hodges v. Com., 473 S.W.2d 811 (Ky. 1971) ….two men under a log without any apparent reason… Presence, association, and flight evidence did not point “unerringly” to guilt.

Slide 30 : Pengleton v. Com., 172 S.W.2d 52 (Ky. 1943) No inference may be based on an inference.

Slide 31 : Evidence of substance = rock solid fact. Sutton’s Adm’r v. Louisville & N.R. Co., 181 S.W.938, 940 (Ky. 1916) “Where it is sought to base an inference on a certain alleged fact, the fact itself must be clearly established.”

Slide 32 : Klingenfus v. Dunaway, 402 S.W.2d 844 (Ky. 1966) (no pyramiding of inferences) Briner v. General Motors Corp., 461 S.W.2d 99 (Ky. 1970) (mere possibility provided only conjecture) Smith v. General Motors Corp., 979 S.W.2d 127 (Ky.App. 1998)(no inference on inference)

Slide 33 : So, which is it? unreasonable or clearly unreasonable Good potential MDR issue

Slide 34 : Beaumont v. Com. Not Reported in S.W.3d, 2009 WL 1451934 (Ky. 2009).- Good example of how our Court applies the standards. When it comes to analysis, looks like the Court actually applies Benham.

Slide 35 : KRS 500.070 (1)- (1) The Commonwealth has the burden of proving every element of the case beyond a reasonable doubt, except as provided in subsection (3).

Quiz #1 Answer : Quiz #1 Answer

Slide 37 : How to reconcile the state and federal standards The state cannot make a standard that provides less protection than the federal standard without violating Due Process. Butler v. South Carolina,459 U.S. 932, 103 S.Ct. 242 (Mem)(U.S.1982). Kentucky has recognized that the any rational standard is similar to the reasonable juror standard in Sawhill

Slide 38 : Both standards require credibility of the witnesses to be judged by the trier of fact [T]he testimony of a single witness which is assigned a likelihood of truth is sufficient to support a finding of guilt, and would justify a verdict in accordance with such testimony, even though a number of witnesses may have testified to the contrary if, after consideration of all of the evidence in the case, the factfinder assigns greater belief to the accuracy and reliability of the one witness. Murphy v. Sowders, 801 F.2d 205, 210 (6th Cir.1986); One narrow exception/twist- Weinel v. Comm., 196 S.W.2d 375 (Ky. 1946)- rape case

Slide 39 : Both require evidence to be viewed as a whole Both require evidence viewed in the light most favorable to the CW

QUIZ #3 ANSWER : QUIZ #3 ANSWER

FRAMING THE ISSUE : FRAMING THE ISSUE Can frame as the evidence was insufficient to support the conviction Can be that trial court erred by failing to grant a directed verdict motion

Slide 42 : Essential elements can include: Whether client committed acts Whether client had requisite mental state Whether offense occurred when and where instructions state Specific elements are not proven- Look at definitions for each element

Slide 43 :

Working through the Facts, orHow Much Evidence is Enough? : Working through the Facts, orHow Much Evidence is Enough? How do you decide when to raise a directed verdict error? What direct evidence is there? Look for confessions, eyewitnesses, physical evidence, etc. What can be inferred from the circumstances? Can draw an inference but cannot then draw an inference upon an inference. Examples

Slide 45 :

QUIZ #4 ANSWER : QUIZ #4 ANSWER Coomer v. Com., 694 S.W.2d 471 (Ky.App.,1985).

Federalizing the Issue : Federalizing the Issue If you want your client to be able to raise her great sufficiency issue in federal court, you MUST do this!

Slide 48 : In re Winship, 397 U.S. 358 (1970) Jackson v. Virginia, 443 U.S. 307 (1979)

Slide 49 : Circumstantial evidence and Due Process Barnes v. U.S., 412 U.S. 837 (1973) Francis v. Franklin, 471 U.S. 307, 314-315 (1985) Ulster County Court v. Allen, 442 U.S. 140, 156 (1979) (conclusions must be justified by reason in light of proven facts)

Slide 50 : CIRCUMSTANTIAL EVIDENCE: There must be more than a scintilla. That means evidence pointing unerringly to guilt and more than a mere possibility. All inferences must be reasonable and fairly drawn. No inference may be based on a prior inference. At the base of each inference there must be evidence of substance.

PRESERVATION : PRESERVATION How to preserve a sufficiency issue ? Motion for directed verdict of acquittal at close of CW case, D case and close of all evidence Must be at least specific enough alert trial court that CW did not prove elements of the offense complained of Object to the giving of instructions on insufficient offenses ….and FEDERALIZE!

Slide 52 : Can you raise an unpreserved sufficiency issue? Yes! Courts have held it is a violation of due process which constitutes a palpable error which affects the substantial rights of a party under RCr 10.26. Schoenbachler v. Com., 95 S.W.3d 830, 837 (Ky.2003). Perkins v. Com., 694 S.W.2d 721 (Ky.App.1985.)