RULE 29. MOTION FOR A JUDGMENT OF ACQUITTAL
Motion before Before Submission to the Jury.
The After the prosecution closes its
evidence or after the close of all the evidence, the court on the defendant's motion
defendant or of its own motion shall order the entry of must enter a judgment
of acquittal of
one or more offenses charged in the indictment, information, or complaint after the
on either side is closed if any offense for which the evidence is insufficient to
conviction of such offense or offenses. The court may on its own consider
evidence is insufficient to sustain a conviction. If the court denies a
defendant's motion for
a judgment of acquittal at the close of the prosecution's evidence
offered by the prosecution
is not granted, the defendant may offer evidence without having reserved the right
to do so.
Motion at close of all evidence. [Reserved for future use.]
Reserving Decision. The
court may reserve decision on the motion, proceed with the trial (where the motion is made
before the close of all the evidence), submit the case to the jury, and decide the motion either
before the jury returns a verdict or after it returns a verdict of guilty or is discharged without
having returned a verdict. If the court reserves decision, it must decide the motion on the
basis of the evidence at the time the ruling was reserved.
Motion after discharge of After Jury Verdict or
(1) Time for a Motion.
If the jury is discharged without having returned a
verdict, a motion
A defendant may move for a judgment of acquittal may be made or
renewed , or renew such
a motion, within seven 10 days after a guilty verdict or after
the court discharges the jury,
whichever is later, is discharged or the court or within
such any other time the court sets
during the seven10-day period may extend the time for
making or renewing such motion.
(2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal.
(3) No Prior Motion Required.
It shall not be necessary to the making of
such a motion that
a similar motion has been made prior to the submission of A defendant is not
move for a judgment of acquittal before the court submits the case to the jury as a prere
quisite for making such a motion after jury discharge.
(d) Conditional Ruling on a Motion for a New Trial.
(1) Motion for a New Trial. If the court enters a judgment of acquittal after a guilty verdict, the court must also conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed. The court must specify the reasons for that determination.
(2) Finality. The court's order conditionally granting a motion for a new trial does not affect the finality of the judgment of acquittal.
(A) Grant of a Motion for a New Trial. If the court conditionally grants a motion for a new trial and the appellate court later reverses the judgment of acquittal, the trial court must proceed with the new trial unless the appellate court orders otherwise.
(B) Denial of a Motion for a New Trial. If the court conditionally denies a motion for a new trial, an appellee may assert that the denial was erroneous. If the appellate court later reverses the judgment of acquittal, the trial court must proceed as the appellate court directs.
Rule 29 was amended, effective March 1, 2006.
Rule 29 is
a variation of based on Fed.R.Crim.P.
29 , but differs from the Federal Rule in
several aspects. The first sentence of Subdivision (a) was deleted and the word "complaint"
was added to conform with these Rules and existing practice within the State.
Subdivision (a) is intended to preserve the right of the defendant to offer evidence
own behalf, if his if a motion for a judgment of acquittal is denied. The
purpose of the
second sentence of the Rule is to remove that doubt (which presently exists in a few Federal
districts) as to whether the defendant is deemed to have rested his case if he moves for a
directed verdict at the close of the prosecution's case.
The language of subdivision (b) is eliminated and this subdivision is retained in
possible future use. Under Fed.R.Crim.P. 29(b) Subdivision (b) was added to Rule
effective March 1, 2006. It allows the court may to reserve
decision on a motion for
judgment of acquittal made at the close of all the evidence, submit the case to the jury, and
then decide the motion either (1) before the jury returns a verdict, or (2) after it returns a
verdict of guilty, or (3) is discharged without having returned a verdict.
Subdivision (c) follows Fed.R.Crim.P. 29
the Federal Rule but differs in
one respect. The
North Dakota rule does not permit a motion for judgment of acquittal after the jury returns
a verdict of guilty. Paragraph (c)(1) was amended, effective March 1, 2006, to
time for filing a motion for judgment of acquittal from seven to ten days.
Subdivsion (d) was added to Rule 29, effective March 1, 2006. It sets out a method for the court to use in making a conditional ruling on a motion for a new trial and designates how a trial court must proceed after appeal when it has made a conditional ruling on a new trial motion.
Rule 21 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, pages 23-24;
June 22, 1984, pages 28-29; October 17-20, 1972, pages 33-38; December 11-12, 1968,
pages 15-17; September 26-27, 1968, page 14;
18 U.S.C.A., Fed.R.Crim.P.
29 , page 568;
Wright, Federal Practice and Procedure: Criminal, § 461-470 (1969); 8 Moore's Federal
Practice, Chapter 29 (Cipes, 2d Ed. 1970); Barron, Federal Practice and Procedure: Criminal,
§ 2221-2225 (1951).
SUPERSEDED: N.D.C.C. § 29-21-37.
CONSIDERED: N.D.C.C. §§ 12-05-03, 29-21-08, 29-21-09, 29-21-10.
CROSS REFERENCE: N.D.R.Crim.P. 33 (New Trial); N.D.R.Crim.P. 34 (