Rebuttable Presumption Regarding the Issue of Witnesses Demeanor
Dr. Peter A. Barone, Esq.
Most non-attorneys, and even some attorneys who have
not been prosecutors or criminal defense attorneys, are usually not familiar
with the Thirteenth Juror in a criminal case. This is a critical issue in that
one of the focal points in the most recent United States Supreme Court decision
advising that the Florida Death Penalty cases are illegal is based upon the
fact that only the jury can make the decision of the whether a person should be
sentenced to death or sentenced to life in prison. The issue is that in Florida
the judge takes the suggestion of the jury and then the judge makes the
decision as to whether the defendant will get the death penalty and that is not
valid. In the Thirteenth Juror situation the judge has a duty to assess the evidence
like a juror does and only weighs in when the jury does not appear to have made
the correct verdict in relation to the evidence which was presented and this is
critical because in addition there is a Double Jeopardy Clause issue here also.
It is important to remember that the judge assessing the weight of the evidence
is similar to the juror declaring a mistrial and not an acquittal which does
not allow for the protection of the Double Jeopardy Clause.
In the area of Criminal Law when a Judge tries a case
without a jury, which is called a Bench Trial, the judge happens to be both the
trier of the law and the trier of the facts. The judge makes the decisions as
to the law and admission of evidence into a trial and also is the trier of the
facts where the judge is responsible to make the decision as to the defendant
being guilty or not guilty. In a jury trial the jury is the entity that actual
has the responsibility to make the decision as to the facts presented and if
the facts come up to the standard of proof of beyond a reasonable doubt for a
conviction saying that the defendant is guilty of the charges he or she has
been charged with in the indictment or information. This process and procedure is
all for the keeping the integrity of due process and protection of the rights
of the defendant. In a trial where the state is not seeking the death penalty there
are usually 6 jurors that are making the decision as to whether the defendant
is guilty or not guilty. In a Capital case, where the state is asking for the
Death Penalty, there is a requirement for the jury to have 12 members and not
6. However, there is another protective mechanism provided to the defendant.
In addition to the 12 jurors listening to the facts
presented in the form of evidence and then deliberating with each other during
the deliberation process there is another juror who is not part of the deliberation
process but who has listened to all the evidence and has the right and duty to
make a decision regarding the verdict in certain circumstances and that is the
trial judge.
In both the states of Tennessee and Florida in a criminal
trial 12 jurors are tasked with determining a verdict against a defendant and
under the laws of both of these states and several others the trial judge has a
duty to act as the 13th juror. The judge is not able to deliberate
with the juror; however, the judge has the duty to provide and independent layer
of review and protection in the assessing the weight of the evidence which was
presented to the jury in the trial. The examining of the weight of the evidence
by the trial judge requires consideration of a number of factors, including
resolving conflicting evidence presented at trial. The task of examining the
weight of the evidence by the trial judge requires consideration of a number of
factors, including resolving conflicting evidence presented at the trial. If,
during the assessment process, the trial judge makes the determination that the
weight of the evidence presented during the trial is actually (against the
verdict), the trial judge must grant a new trial for the defendant. This 13th
Juror activity is solidified and there is no challenge to this judicial
requirement (Tennessee v. Ellis, 2015).
In a Tennessee case there was another issue presented
to the court and the question presented to the Court was “whether a successor
judge may act at the 13th juror in cases in which the original trial
judge is not available to act in this 13th juror capacity not having
been the judge who was present when the testimony was actually presented during
the trial. The Court presented a very logical response and rules that a
successor judge, after carefully considering the record from the trial, MAY act
as the 13th juror in all cases EXCEPT in the very rare occasion in
which (the demeanor of the witness was the critical issue in weighing the
evidence that led to the verdict delivered by the sitting jury (Tennessee v.
Ellis, 2015).
This decision makes absolute sense in that the majority
of testimony is pretty straight forward and the body language is commensurate
with what is being said by the person giving the testimony. However, since 85%
of our communication is via body language and if the witness giving testimony’s words do not
match his body language or facial expressions then this is something that jury
instructions advises jurors that they can take anything into consideration regarding
a witness who testifies so if the successor judge was not present during the
testimony and did not have the opportunity to have observed the witness
testifying and would not have the same opportunity as the previous judge who
was actually present during the testimony and was able to observe the demeanor
of the witness while they were testifying. So if this is the case then the
Court has ruled that the 13 juror rule is valid and that the presumption could
only be rebutted when the “demeanor” of a witness is the critical issue
involved in resolving the issue.
In the Tennessee case the Court determined that the
demeanor of the witness was NOT the critical issue and that, as a result, the
successor judge acted properly in serving as the 13th juror in this
case in determining that the weight of the evidence supported the jury’s guilty
verdict. In addition, one of the justices advised that the test that needs to
be applied in determining the adequacy of a verdict is whether a jury of
reasonable men could have returned that verdict (Griffis v. Hill, 1969).
In the case of Tibbs v. Florida (1982) the Florida Supreme
Court reversed the petitioner’s murder and rape convictions from a jury trial
was based on the weight of the evidence, a retrial is not barred by the Double
Jeopardy Clause of the Fifth Amendment as made applicable to the States by the Due
Process Clause of the Fourteenth Amendment.
The Court made it clear that there is a distinction
between a convictions based on the “weight of the evidence” unlike a reversal
based on “insufficient evidence” where the Double Jeopardy Clause precludes a
retrial. If the conviction is based on “insufficiency of the evidence” then
that means that if a conviction is based on insufficient evidence, and the jury
made their decision based upon that little amount of information presented then
that is a valid verdict and due to the evidence being insufficient the Double
Jeopardy Clause precludes a retrial. However, when the reversal of the conviction
is based on the weight of the evidence does not mean that he only proper verdict
was an acquittal. Instead the appellate court sits as a 13th Juror
and disagrees with the jury’s resolution of conflicting testimony. Just as a
deadlocked jury does not result in an acquittal barring retrial under the
Double Jeopardy Clause, an appellate court’s disagreement with the juror’s weighing
of the evidence does not require the special deference accorded verdicts of
acquittal. A reversal based on the weight of the evidence can occur only after
the State has presented sufficient evidence to support conviction and has
persuaded the jury to convict. The reversal simply affords the defendant a
second opportunity to seek an acquittal which provides the defendant a second
chance and does not amount to government oppression of the sort against which
the Double Jeopardy Clause was intended to protect. In addition, when a trial
court takes the required role of a 13th Juror that too does not bar
a retrial by the Double Jeopardy Clause of the Fourteenth Amendment which is similar
to the same reasons stated for the appellate court (Tibbs v. Florida, 1982).
Reference Griffis v. Hill, (1969).
Tennessee v. Ellis, 2015)
Tibbs v. Florida, (1982).
