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Mississippi Supreme Court Clarifies that Appellate Courts Never Serve as ‘13th Juror’ for Motion for New Trial

by David Reutter

The Supreme Court of Mississippi held that neither it nor an appellate court sits as a “thirteenth juror” when reviewing a motion for new trial. The Court clarified that in a court’s appellate capacity it does not reweigh evidence, assess witness creditability, or resolve conflicts between evidence.

That pronouncement came in the reversal of a Court of Appeals judgment that vacated the conviction of Marlon Little. The conviction stemmed from the armed robbery of David Ellis.

Ellis was the sole witness, and his identification of Little in a photo-lineup was in conflict with the initial description of his attacker that he gave to police. Nevertheless, Little was convicted and sentenced to 30 years in prison. He filed a post-trial motion for a new trial, arguing that his conviction was against the weight of the evidence. It was denied, and he appealed.

On appeal, the Court of Appeals described its appellate posture as that of “thirteenth juror.” In that role, “if it disagrees with the jury’s resolution of conflicting testimony, the proper remedy is to grant a new trial.” The appellate court found that Ellis’ initial identification conflicted with Little’s “actual physical attributes, including age and build.” Because Ellis’ testimony was the only substantive evidence, the court ordered a new trial.

The Mississippi Supreme Court granted the State’s petition for certiorari to clarify its “thirteenth juror” language in Bush v. State, 895 So.2d 836 (Miss. 2005), from which the Court of Appeals extracted its “thirteenth juror” language. The Supreme Court explained that the “thirteenth juror” referred to the trial court—and the trial court alone, as only it “smells the smoke of the battle by [its] very position.” In contrast, appellate courts “have only a cold, printed record to review.”

In clarifying its “thirteenth juror” language in Bush, the Court said it was an error “to conflate our role as appellate court with the trial court’s and to assume the role of ‘thirteenth juror’ for ourselves when reviewing the trial court’s grant or denial of a new trial.”

An appellate court’s role “is to review the trial court’s decision to grant or deny a new trial for an abuse of discretion,” the Court wrote. “In carrying out this task, we weigh the evidence in the light most favorable to the verdict, ‘only disturb[ing] a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’” The Court announced that “neither this Court nor the Court of Appeals ever acts as ‘juror’ on direct appeal.”

Applying that standard to the present case, the Court found no abuse of discretion in denying the motion for a new trial. Accordingly, the Court reversed the judgment of the Court of Appeals and reinstated the judgment of the trial court. See: Little v. State, 233 So.3d 288 (Miss. 2017). 

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Related legal case

Little v. State



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