Judging Jury Verdicts

59 Pages Posted: 23 Jul 2007 Last revised: 13 Dec 2009

See all articles by Cassandra Burke Robertson

Cassandra Burke Robertson

Case Western Reserve University School of Law


Empirical studies show that juries generally perform their job conscientiously and that the large majority of jury verdicts are accurate and fair. But some outliers remain, and even a small number of seemingly unjust jury verdicts can shake the public's faith in the jury system as a whole. Historically, federal district court judges have been empowered to remedy such outlier verdicts by judging the weight of the evidence and ordering a new trial when the jury's verdict appears manifestly unjust. In recent decades, however, a growing number of circuits have - perhaps inadvertently - created obstacles to such review. Even though weight-of-the-evidence review is a critical component of the constitutional right to a jury trial, it has received very little scholarly or judicial attention. The doctrine has become so confused that the federal circuit courts of appeals have regularly overlooked its existence and have frequently confused evidentiary weight with evidentiary sufficiency, thereby undermining the constitutional right to trial by jury.

This Article examines the reasons why the doctrine has fallen into such disarray and clarifies the doctrinal underpinnings of weight-of-the-evidence review. It proposes two theoretical models of the judge-jury relationship: one that envisions the judge and jury performing their work independently in separate spheres and a second one that acknowledges the interdependence between the two. The Article concludes that courts and scholars too often subscribe to the separate spheres model and that the model fails to account for the existing interaction between the judge and jury, thus causing appellate courts to place unwarranted restrictions on the trial judge's ability to review the weight of the evidence. The Article conducts a comparative institutional analysis of the judge and jury's roles in evaluating evidentiary weight, looking particularly at their relative strengths and weaknesses in promoting accuracy, legitimacy, efficiency, and adherence to constitutional values. Ultimately, the Article recommends that courts safeguard the jury-trial right both by increasing the trial judge's discretion to grant a new trial on the weight of the evidence and by requiring a balanced appellate review of decisions granting and denying new trials.

Keywords: Weight-of-the-evidence review, evidentiary weight, evidentiary sufficiency, trial courts, appellate review, jury trials, federal jurisprudence, federal court, right to a new trial, standards for new trials

JEL Classification: K10, K40, K41

Suggested Citation

Robertson, Cassandra Burke, Judging Jury Verdicts. Case Legal Studies Research Paper No. 07-23; 83 Tulane Law Review 157 (2008). Available at SSRN: https://ssrn.com/abstract=1001732

Cassandra Burke Robertson (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3302 (Phone)

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