"The New Trial Right as Structural Constitutional Reform"

The title of this post is the title of this notable new paper authored by Jennifer Mascott.  Here is its abstract:

The role of the judge in vacating convictions and awarding a second jury trial is an integral component of the Article III criminal jury trial right.  Scholarship has previously demonstrated that from prior to the Blackstone era, the new trial right was seen as a key facet of the jury institution rather than in tension with it.  The trial judge’s ability to vacate a conviction for a new trial was a welcome, relatively modest, and jury-protective means of addressing juror error in contrast to judicial entry of a judgment of acquittal.

This project takes prior work examining the proper contours of a judge’s role in providing a new trial a step further. It explains how, prompted by differences in constitutional structure, American practice further expanded the pre-Blackstonian era new trial right, such as by making it available in felony criminal cases in addition to criminal misdemeanor and civil jury trials.  This expansion derived in large measure from the separation of powers structure present in American constitutional law, with conviction and liability residing entirely within a separate judicial branch rather than partially under executive supervision.  Unlike its British counterpart, American practice lacked blending of the judicial role and pardon power, and federal executive pardons were less flexible as a means of commutation under American practice than British practice.  The new trial motion was an important means for judges to address unjust verdicts within the judicial branch, without reliance on the entirely separate executive.

This paper also provides a firmer foundation for some of the claims made in earlier studies of the new trial right by comprehensively canvassing references to new trials in the documentary histories of the ratification of the Constitution and the First Federal Congress.  The historical understanding of the role of new criminal jury trial motions and the standard for granting them remains vitally important in modern practice.  Evidence from the time of Blackstone up through adoption of the Federal Rules of Criminal Procedure suggests that the “interest of justice” standard to award new trials is significantly broader than that applied by several contemporary circuit courts, and the Supreme Court continues to receive recurrent petitions from both little-resourced everyday criminal defendants and well-resourced corporate defendants asking it to weigh in on the deep disparity in federal appellate review of new trial grants.