Double Jeopardy and Judicial Verdicts:

It’s not every day that you read a news story on Federal Rule of Criminal Procedure 29, but here’s one from today’s Boston Globe. (Hat tip: Howard.) Rule 29 allows a trial judge to find a criminal defendant not guilty as a matter of law; as long as the judge makes clear that she is making the finding based on her view of the evidence, she does not need to state a reason and the decision is unreviewable by courts of appeal under the Double Jeopardy clause even if it is “based upon an egregiously erroneous foundation.”Fong Foo v. United States, 369 U.S. 141 (1962).

  As the Globe story suggests, Rule 29 is a pretty controversial rule. Some prosecutors see the unreviewability of Rule 29 acquittals as an invitation for trial judges to get rid of cases that they don’t like for reasons that have nothing to do with their merits. On the other hand, defense attorneys generally see Rule 29 as an important safety valve on overzealous prosecutions. It’s relatively rare for Rule 29 to make the news, though: because acquittals under the Rule can’t be appealed, its workings tend to fly under the radar screen.

  In December, the U.S. Supreme Court will be hearing oral argument in a case that addresses one aspect of the Double Jeopardy limits on Rule 29 and related state rules: if a judge enters a judgment of acquittal under Rule 29 or a related state rule, but then soon after changes her mind, can she reinstate the charges? Or does the Double Jeopardy clause block the judge from reinstating the charges as soon as the Rule 29 acquittal is announced? The case is Smith v. Commonwealth, 03-8661.

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