The 13th Juror is Dead

I have written about the “thirteenth juror” standard of review when a trial or an appellate court considers a decision on a motion for new trial.  The Supreme Court has killed this standard, although at least two justices want to keep it.

The following are some excerpts from Justice Maxwell’s opinion:

¶1. Sitting as “thirteenth juror,” the Court of Appeals reversed Marlon Little’s convictions and remanded for a new trial, finding the weight of the evidence preponderated heavily against the verdict. We granted certiorari to clarify the appellate court’s role when  reviewing a motion for new trial. Despite this Court’s prior language suggesting otherwise, neither this Court nor the Court of Appeals assumes the role of juror on appeal. We do not reweigh evidence. We do not assess the witnesses’ credibility. And we do not resolve conflicts between evidence. Those decisions belong solely to the jury. Our role as appellate court is to view the evidence in the light most favorable to the verdict and disturb the verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

. . .

¶15. We take this opportunity to clarify that neither this Court nor the Court of Appeals ever acts as “juror” on direct appeal. “We sit as an appellate court, and as such are ill equipped to find facts.” Gavin v. State, 473 So. 2d 952, 955 (Miss. 1985). “[E]ven if  we wanted to be fact finders, our capacity for such is limited in that we have only a cold, printed record to review.” Id.

¶16. The concept of the appellate court acting as “thirteenth juror” was birthed in Bush. In that case, this Court sought to distinguish the standard of review for the denial of a motion for judgment notwithstanding the verdict, which challenges the sufficiency of the evidence, from the standard of review for the denial of a motion for a new trial, which challenges the weight of the evidence. Bush, 895 So. 2d at 843-45. In explaining the standard of review for the denial of a motion for a new trial, we borrowed language from Amiker v. Drugs For Less, Inc., 796 So. 2d 942 (Miss. 2000):
[T]he court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.

Bush, 895 So. 2d at 844 (quoting Amiker, 796 So. 2d at 947).

¶17. But as Judge Roberts pointed out in his special concurrence in Hughes, “[i]n Amiker, the central issue was whether a successor judge could vacate his predecessor’s order  granting a new trial.” Hughes, 43 So. 3d at 531 (citing Amiker, 796 So. 2d at 946) (Roberts, J., specially concurring). And this Court concluded the predecessor trial judge, who sat through trial and observed the witnesses first hand, was in a “superior position” to his successor, who only had “a cold, printed record of a case.” Amiker, 796 So. 2d at 947-48.

¶18. This conclusion was based on the longstanding “recogni[tion] that the trial judge is in the best position to view the trial.” Id. at 947. “The trial judge who hears the witnesses live, observes their demeanor and in general smells the smoke of the battle is by his very position far better equipped to make findings of fact which will have the reliability that  we need and desire.” Id. (quoting Gavin, 473 So. 2d at 955). By contrast, a successor judge, who enters the fray after the battle, is “in no better position than this Court to do what this Court does not do.” Id. at 948 (emphasis added). And what, according to Amiker, does this Court not do? “This Court justifiably refuses to review grants of a new trial based in part on the superior position of the trial court to decide such matters.” Id.

¶19. In now revisiting Amiker, we agree with Judge Roberts that the “thirteenth juror”  referred to the trial court—and the trial court alone. See Hughes, 43 So. 3d at 531-32 (Roberts, J., specially concurring). Thus, it was error in Bush to conflate our role as  appellate court with the trial court’s and to assume the role of “thirteenth juror” for  ourselves when reviewing the trial court’s grant or denial of a new trial. See Bush, 895  So. 2d at 844 n.2 (noting “when the trial court (and subsequently the appellate court) reviews a verdict that is alleged to be against the overwhelming weight of the evidence, this presents a distinctive situation which necessitates the court sitting as a ‘thirteenth juror’”).

¶20. To be clear, when reviewing a motion for new trial, neither this Court nor the Court of Appeals “sits as thirteenth juror.” Bush, 895 So. 2d at 844. We do not make  independent resolutions of conflicting evidence. See id. Nor do we reweigh the evidence or make witness-credibility determinations. Instead, “when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony.” Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980); see also Lenoir v. State, 222 So. 3d 273, 278 (Miss. 2017).

¶21. Our role as appellate court is to review the trial court’s decision to grant or deny a new trial for an abuse of discretion. See Amiker, 796 So. 2d at 948 (citing Dorr v. Watson, 28 Miss. 383, 395 (1854) (“The granting a new trial rests in a great measure upon the sound discretion of the court below, to be exercised under all the circumstances of the case with reference to settled legal rules as well as the justice of the particular case. If a  new trial be refused, a strong case must be shown to authorize the appellate court to say  that it was error; and so, if it be granted, it must be manifest that it was improperly granted.”)). In carrying out this task, we weigh the evidence in the light most favorable to the verdict, “only disturb[ing] a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Lindsay v. State, 212 So. 3d 44, 45 (Miss. 2017) (quoting Bush, 895 So. 2d at 844).

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