Nordlicht v. United States, Brief of Professor Jennifer L. Mascott as Amicus Curiae in Support of Petitioners

Abstract

Rather than disrupting deference to juries, extensive early federal and state case law suggests that ready availability of new trials promotes the jury trial right. Over centuries rooted in British common law and the Judiciary Act of 1789, federal and state courts have recognized new trials as a safety valve to correct verdicts contrary to the weight of evidence where the evidence is “doubtful” or a verdict “does not satisfy the conscience of the judge.”

The U.S. Constitution is foundationally a process document, establishing a set of finely grained procedural mechanisms for the exercise of limited federal governmental authority. The State ratifying conventions agreed to subordinate State authority to a national government on the understanding that the Constitution procedurally constrained federal action through institutions like the criminal jury trial.

The availability of new trials has provided protection over centuries for criminal defendants convicted of a wide range of defenses, including some of the most vulnerable members of society such as free people of color convicted under questionable evidence in pre-Civil War southern and border states. The Court should grant this petition to clarify the proper breadth of federal district court authority to grant a second jury trial in accordance with the text of Federal Rule of Criminal Procedure 33 and its unbroken line of historical context dating back to the First Congress’s enactment of new trial authority in the 1789 Judiciary Act. That power included the authority to grant new trials where verdicts were against the weight of evidence. Rule 33 preserved the availability of new trials in the “interest of justice,” reflecting the provision of new trials under British and American practice dating back to the time of Blackstone where new jury trial review was provided for convictions contrary to evidence to further the “administration of justice.”

Keywords: Criminal Law, Constitutional Law, Federal Law, Criminal Procedure, Jury trial, Judicial power

JEL Classification: K1, K14, K4, K42