NJ Supreme Court Grants A&F Appeal Challenging Standard of Review Governing Sufficiency of Trial Evidence


Our firm recently persuaded the New Jersey Supreme Court to grant certification in a high-profile murder case which may redefine the standard by which New Jersey courts assess the sufficiency of trial evidence in criminal cases. See State v. Lodzinski, 2019 WL 3714000 (App. Div. Aug. 7, 2019), certif. granted, 2020 WL 881644 (Feb. 20, 2020).

In 2018 Michelle Lodzinski was convicted of murdering her five-year-old son Timmy in 1991 following a lengthy trial. Our firm was not involved in the trial but handled Michelle’s appeal, which primarily challenged the sufficiency of the trial evidence and the trial court’s substitution of a deliberating juror on the third day of deliberations.

In August 2019, an Appellate Division panel rejected those challenges and affirmed Michelle’s conviction. In sustaining the sufficiency of the trial evidence, however, the panel employed a standard of review which, while finding support in New Jersey caselaw, arguably deviated from the federal due process standard in two significant respects.

First, whereas many federal courts assess all trial evidence – prosecution and defense – in determining its legal sufficiency, the panel considered only the State’s evidence, refusing to consider what it deemed the “substantial” evidence introduced in the defense case which “in many ways directly rebutted the State’s proofs.” Id. at *3. Second, whereas many federal courts also assess the evidence’s quantity and quality to determine whether it lends more circumstantial support to a theory of guilt than to a theory of innocence, and must acquit if the evidence gives nearly equal support to both theories, the panel considered only the “existence” of the State’s evidence, not its “worth, nature or extent,” and did not compare its circumstantial support against that of the defense’s evidence. Id.

The federal standard of review (which some federal courts have declined to adopt) is often referred to as the “equipoise rule,” which directs courts to enter judgments of acquittal in circumstantial cases where the entirety of the evidence, viewed in a light most favorable to the prosecution, gives equal or nearly equal circumstantial support to theories of guilt and innocence. The equipoise rule has also been embraced by many state courts, treatises, and model jury instructions. The New Jersey Supreme Court does not appear to have considered that rule in a reported decision.

Among other arguments, our petition for certification argued that the standard of review employed by the panel denied Michelle due process, allows innocent defendants to be convicted, and renders courts powerless to rectify the injustice. Such a standard is materially identical to the “some evidence” standard employed by New Jersey courts to review the sufficiency of the State’s evidence presented to grand juries. See State v. Morrison, 188 N.J. 2 (2006). Employing that standard at or after trial flies in the face of fundamental guarantees of justice by blinding courts to the strength or weakness of the State’s evidence (which effectively neuters defendants’ constitutional rights to confrontation and cross-examination) and the entirety of the defense’s evidence (which effectively obviates defendants’ constitutional right to present a defense). The result is a standard of review which, our petition contended, denies defendants due process.

The propriety or impropriety of the panel’s standard of review in assessing the sufficiency of trial evidence is an issue which not only affects every criminal trial but also implicates all criminal defendants’ due process rights. The Supreme Court’s resolution of that issue could have wide-ranging effects.

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