Yesterday, I walked up to the most newly minted attorney in the office and asked him this question:
"You're in a larceny trial and the Commonwealth has finished presenting its evidence. The defense makes a motion to strike the evidence because the Commonwealth must prove his client was wearing a blue shirt in order to prove larceny. The judge agrees that the blue shirt element must be proven and the Commonwealth has not proven it. Therefore, the judge dismisses the charge.
Clearly, there is no 'blue shirt' element to the crime of larceny. Has jeopardy attached?"
He looks at me for a couple seconds, obviously trying to figure out if it's a trick question. "Jeopardy attaches as soon as the trial starts."
Me: "Congratulations, you've now proven yourself smarter than the Michigan Supreme Court."
It's a simple answer to a simple question which some very smart people worked very hard to make complicated. A couple of days back, in Evans v. Michigan, the United States Supreme Court chose simplicity over complexity.
In Evans, the defense attorney alleged that an element to a crime existed and must be proven by the prosecution. The judge agreed the element must be proven and had not. He then entered a directed order of acquittal. The judge was wrong and the element he ordered acquittal over was not a part of the crime alleged. On appeal, the Michigan Supreme Court overturned the judge, ruled that jeopardy had not attached, and remanded for a retrial.
The argument which won the day in the Michigan Supreme Court goes something like this: When there is a procedural error, a person can be retried (generally mistrials). When the judge added a nonexistent element to the crime and based his decision to acquit solely on the nonexistent element that judge committed a procedural error. None of the actual elements of the crime had been resolved and therefore the defendant had not been put again in jeopardy and could be retried.
The U.S. Supreme Court's answer to this? We have already made it clear that when a judge acquits because he misreads or misapplies a criminal law jeopardy attaches and adding an element is misreading or misapplying a criminal law. Therefore, jeopardy attached.
Apparently, the Michigan Court's line of reasoning had been adopted in several different jurisdictions. To be fair, it's not a bad bit of reasoning. It's an end around and runs contrary to my instinctual understanding of Double Jeopardy, but there are plenty of areas in the law where that occurs. This is one of those situations we find every so often where either answer could be correct and we just need someone to make the final decision. Personally, I think the US Supreme Court got it right.
The result would be the same in Virginia. It seems that in most States when a jury trial is in progress the motion made by the defense after the presentation of the prosecution's evidence is for a "directed acquittal" based on a failure of some sort by the prosecution. However, in Virginia the motion made at that point is a "motion to strike the evidence." A motion to strike at mid-trial is a motion for the judge to exclude all the evidence presented and dismiss the case without jury consideration. The motion is a mixture of common law and Rules of the Virginia Supreme Court.
A motion to strike out all the evidence of the adverse party is very far-reaching and should never be entertained where it does not plainly appear that the trial court would be compelled to set aside any verdict for the party whose evidence it is sought to strike out. Green v. Smith, 153 Va. 675, 679 (1930).
Rule 1:11. Striking the Evidence.
If the court sustains a motion to strike the evidence of either party in a civil case being tried before a jury, or the evidence of the Commonwealth in a criminal case being so tried [jury trial], then the court shall enter summary judgment or partial summary judgment in conformity with its ruling on the motion to strike.
If the court overrules a motion to strike the evidence and there is a hung jury, the moving party may renew the motion immediately after the discharge of the jury, and, if the court is of opinion that it erred in denying the motion, it shall enter summary judgment or partial summary judgment in conformity with its ruling on the motion to strike.
Rule 3:20. Summary Judgment.
Any party may make a motion for summary judgment at any time after the parties are at issue, except in an action for divorce or for annulment of marriage. If it appears from the pleadings, the orders, if any, made at a pretrial conference, the admissions, if any, in the proceedings, or, upon sustaining a motion to strike the evidence, that the moving party is entitled to judgment, the court shall enter judgment in that party's favor. Summary judgment, interlocutory in nature, may be entered as to the undisputed portion of a contested claim or on the issue of liability alone although there is a genuine issue as to the amount of damages. Summary judgment shall not be entered if any material fact is genuinely in dispute. No motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the action shall agree that such deposition may be so used.
Under Green's standard, the judge can only strike the evidence if it is so flawed that he would have to overturn a jury verdict of guilty. Thus, the the determination is the equivalent of a directed acquittal.