RULE 29. MOTION FOR A JUDGMENT OF ACQUITTAL

Effective Date: 3/1/2011

(a) Before Submission to the Jury. After the prosecution closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the prosecution's evidence, the defendant may offer evidence without having reserved the right to do so.

(b) Reserving Decision. The court may reserve decision on the motion, proceed with the trial (when 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.

(c) After Jury Verdict or Discharge.

(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.

(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. A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite 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.

(3) Appeal.

(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; March 1, 2007; March 1, 2011.

Rule 29 is based on Fed.R.Crim.P. 29.

Subdivision (a) is intended to preserve the right of the defendant to offer evidence if a motion for a judgment of acquittal is denied.

Subdivision (b) was added to Rule 29, effective March 1, 2006. It allows the court 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. Paragraph (c)(1) was amended, effective March 1, 2006, to increase the time for filing a motion for judgment of acquittal from seven to ten days. Paragraph (c)(1) was amended, effective March 1, 2007, to eliminate the requirement that the trial court decide a motion for extension of time within ten days. Motions for extension of time must be made under Rule 45(b).

Paragraph (c)(1) was amended, effective March 1, 2011, to increase the time for filing a motion for judgment of acquittal from 10 to 14 days.

Subdivision (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 29 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 April 29-30, 2010, page 20; January 26, 2006, page 10; 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; Fed.R.Crim.P. 29.

STATUTES AFFECTED:

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 ( Arresting Judgment); N.D.R.Crim.P. 45 (Computing and Extending Time).

Effective Date Obsolete Date
03/01/2011 View
03/01/2007 03/01/2011 View
03/01/2006 03/01/2007 View
06/22/1984 03/01/2006 View