Concept
Granting a New Trial
Motion for a new trial
Granting a New Trial
Rule 33(a) packs three separate instructions into two sentences, and the sections below take them one at a time. The opening words fix who may start the process, since the court acts only on the defendant's motion. The next clause supplies the standard: the court may vacate the judgment and grant a new trial "if the interest of justice so requires."1 The second sentence of the subsection adds a modified procedure for cases tried without a jury, which is the third step.2
What the text omits matters as much as what it contains. Rule 33 names no ground for relief, whether a mistaken evidentiary ruling, a misstep in the jury instructions, or a verdict the evidence does not support, so the decision rests on the judgment of the court that presided over the trial.3 That placement follows from the judge's vantage point. The trial judge watched the witnesses testify and saw how the jury received the case, and so can recognize an injustice that a fixed list of grounds would miss or would force into the wrong category.
The power the rule confers is broad. A judge ruling on a Rule 29 motion must view the evidence in the light most favorable to the prosecution, whereas a judge ruling on a new-trial motion is not so confined and may weigh the evidence and assess the credibility of witnesses independently, as the Ninth Circuit has explained.4 Three features keep that breadth in check. The rule's word "may" leaves the grant discretionary, so even a defendant who identifies a flaw in the trial is not automatically entitled to a retrial.5 The defendant also carries the burden, because the motion must overcome the presumption that the conviction is valid.6 Finally, an appellate court reviews the ruling only for a clear and manifest abuse of discretion, and the appellant bears a significant burden in showing one.7
This section assumes a timely motion. Rule 33(b) sets different deadlines depending on whether the motion rests on newly discovered evidence or on some other reason, and those clocks are the subject of the time-limit material later in this chapter.8 Within that assumption, the first question is who may bring the motion at all, and the next section begins there.
Defendant-Only Motions
The opening words of Rule 33(a), "[u]pon the defendant's motion," make the defendant the only person who can start the new-trial process.10 Two limits follow from that phrase. The prosecution has no counterpart motion, so the government cannot ask for a new trial after an acquittal, and the trial judge, even one who doubts the verdict, should not order a new trial on the court's own initiative.11 Before asking whether the interest of justice requires a new trial, then, the first thing to check is whether the defense has actually moved for one.
Both limits trace to the Fifth Amendment's bar on double jeopardy, although each works a little differently. A new trial after a conviction subjects the defendant to a second prosecution for the same offense. If the judge could order that retrial alone, the defendant would face it without having chosen it, and that raises a serious double jeopardy question.12 A defendant who moves for the new trial is in a different position, because the defendant is the one asking for the second proceeding and so gives up any double jeopardy objection to it. In United States v. Polizzi the defendant moved under Rule 33 to vacate his guilty verdict, and the court concluded that his own motion waived any double jeopardy objection to a retrial, so that granting the motion raised no constitutional issue.13 The law of mistrials uses the same idea: when the defense itself asks for a mistrial, a retrial is generally permitted unless the prosecutor or judge acted with the intent to goad the defendant into asking.14
The government's inability to use Rule 33 rests on the finality of an acquittal. Once jeopardy has attached, an acquittal ends the case and the government may not try the defendant again for the offense, so a prosecutor's request for a new trial after an acquittal would ask for exactly the second trial the Double Jeopardy Clause forbids.15 The prosecution's remedy in the closest situation is different in kind. When a judge sets aside a guilty verdict by granting a post-verdict Rule 29 acquittal, the government may appeal and ask the higher court to reinstate the verdict, and that request does not require a second trial, so it does not offend the clause.16
The limit on the court itself has the same source and a more tempting fact pattern. The courts of appeals largely agree that a trial court has no power to grant a new trial sua sponte, meaning on its own motion.17 The Second Circuit has traced that rule to the 1966 amendments to Rule 33, whose Advisory Committee note explains that the judge may act only in response to a timely defense motion because of the potential for double jeopardy.18 The Ninth Circuit has applied the principle to a common shortcut, in which a judge who rejects a Rule 29 acquittal motion but still doubts the verdict converts that motion into a new-trial order. Rule 29 prohibits converting its own motion, Rule 33 prevents the court from granting a new trial on its own motion, and together the two rules allow a new trial only when the defendant asks for one.19 One Sixth Circuit decision goes the other way and holds that a district court did not abuse its discretion by converting an acquittal motion into a new-trial motion and granting it.20 That outlier shows the majority view is not unanimous, but the dominant rule remains that a defense motion is required.
Civil practice shows the double jeopardy reasoning at work by contrast. Federal Civil Rule 59(d) authorizes a trial judge to grant a new trial on the court's own initiative, as long as the judge acts within twenty-eight days of the entry of judgment.21 A civil retrial exposes no one to a second criminal prosecution, so the constraint there is a deadline rather than a party's request. That is a civil analogy only, and a criminal court has no comparable sua sponte power. On an exam stem, the usual trap is a judge who acts on doubt alone, most often by converting a Rule 29 motion into a new-trial order, or a prosecutor who answers an acquittal with a Rule 33 request. In either case the first question is who moved, and if the answer is not the defendant, Rule 33 supplies no authority to grant relief.
Interest of Justice Standard
The defendant-only requirement settles who may start the process, and the next question is how the court decides the motion once it is made. The text of Rule 33(a) asks only whether the interest of justice requires a new trial.23 Because the rule lists no grounds, courts have built a working formulation around it. In United States v. Chinasa, the court, drawing on Fourth Circuit precedent, explained that the decision rests in its discretion, that the discretion should be used sparingly, and that a new trial is proper only if "the evidence weighs so heavily against the verdict that it would be unjust to enter judgment."24 The same opinion adds that the judge deciding the motion may consider all the evidence introduced at trial and may evaluate the credibility of the trial witnesses.25 Each piece of that formulation has its own reason, and the reasons pull in opposite directions.
The instruction to grant relief sparingly traces to the presumption that a verdict is valid. A second trial costs the system its finality and asks witnesses, jurors, and the public to repeat work already done, and if any lingering doubt could reopen a verdict, every convicted defendant would have a reason to ask for another attempt. The rule therefore places the burden on the defendant and sets the threshold at injustice, which is higher than a difference of opinion.26 The power to weigh the evidence is the counterweight to that caution. A judge deciding a Rule 33 motion need not view the evidence in the light most favorable to the verdict and may evaluate the witnesses' credibility independently, so a new trial remains available even when the evidence was legally sufficient, if it preponderates so heavily against the verdict that a serious miscarriage of justice may have occurred.27 That power sits with the trial judge because the judge watched the witnesses testify and can sense a miscarriage that a cold record, or a fixed list of grounds, would hide.
Federal civil practice under Rule 59 describes the judge's balancing task in terms that clarify the criminal standard, although it is an analogy and not the text of Rule 33. On one side, the trial judge does not sit to approve miscarriages of justice. On the other, respect for the collective judgment of the jury suggests that the judge should usually accept its findings despite personal doubts. The judge who gives the jury's findings full respect and is still left with a definite and firm conviction that a mistake was made is the judge who is expected to grant a new trial.28 Disagreement with the jury is not enough, because the power exists to prevent injustice, and a different view of the evidence does not by itself show one.29 That balance explains a common mistake. Rule 33 reaches further than Rule 29, but broader authority is not an easier win, because deference to the jury and the interest in finality make courts slow to grant either motion.30
The decided cases show the standard at work. In Polizzi, the court concluded that the interests of justice required a new trial on the defendant's Rule 33 motion, and the questions it went on to address, timeliness and double jeopardy, arose only because that threshold had been met.31 Chinasa shows what kinds of complaints the standard governs. The defendant there attacked the verdict in three ways: he argued that the court failed to give specific jury instructions, that the evidence was insufficient on every charge, and that the admission of certain exhibits was prejudicial. The court analyzed the instruction and exhibit arguments under Rule 33 and the sufficiency argument under Rule 29(c).32 The sorting follows from the question each rule asks. Complaints about how the trial was conducted bear on whether the judgment is just, while a claim that no rational jury could convict goes to legal sufficiency, a contrast the next part of this chapter develops.
One caution applies to the formulation itself. The weight-of-the-evidence language comes from Fourth Circuit decisions that addressed motions based on the weight of the evidence. In a concurring opinion in United States v. Chong Lam, a judge pointed out that when a Rule 33 motion rests on other grounds, such as improperly excluded evidence, constitutional error, or prosecutorial misconduct, courts have not required a separate showing that the evidence weighs heavily against conviction.33 The questions there are whether the error prejudiced the defendant and whether the defendant received a fair trial, since a defendant deprived of a fair trial is entitled to a new one even when the government's case was strong.34 That opinion is a concurrence, and the majority repeated the weight-of-the-evidence language, so it works as a refinement that tells you which kind of motion is in front of you and leaves the general standard intact.
Exam problems sometimes supply a differently worded rule, and the text given controls. A fictional state's Rule 33 used in practice-exam materials, for example, authorizes a new trial only if an error during or before trial violated a constitutional provision, statute, or rule and the defendant was prejudiced by it.35 Under that text the inquiry is error plus prejudice, so a general sense that the verdict is unjust does not suffice, whereas the federal text asks only whether the interest of justice requires a new trial. That is a fictional jurisdiction and not federal law, which is why the first step on any such problem is to read which rule the facts invoke.
Bench Trial Procedure
The first sentence of Rule 33(a) supplies the ordinary remedy: the court vacates the judgment and grants a new trial.37 The second sentence adds a shorter path for one kind of case. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.38 A bench trial is a trial in which the judge decides the facts, and that feature is the whole reason the shortcut exists.
A new trial exists to put the evidence before a fact-finder a second time when the first result cannot stand. In a jury case only a new jury can do that, because a judge who sets aside a verdict has no authority to substitute personal findings for the jurors', so the remedy is to vacate the judgment and start over before a new panel. Where the judge was the fact-finder, the second look needs no new fact-finder. The judge who doubts the earlier findings can reopen the record, hear the further testimony that bears on the doubt, and decide the facts again, which settles the matter at a fraction of the cost of a full retrial. The text is permissive, since the court may proceed this way, and the first sentence's power to vacate any judgment is not limited to jury cases, so a judge who prefers a full retrial after a bench trial is not barred by the rule's wording.39 The second sentence also sits inside a subsection that opens with the defendant's motion, so the defense request remains the starting point in either kind of case.
Two constructed illustrations, drawn from the rule's text, show the line.
The two scenes differ in one fact, which is who decided the facts at the first trial. That fact controls the form the relief takes, and it is the first thing to identify when an exam stem describes a granted Rule 33 motion. The trap is additional testimony and a new judgment offered as a remedy after a jury verdict, where the text points to vacatur and a new trial instead.40