Sufficiency v. Weight of the Evidence-- Know the Difference

“Weight of the evidence” and “sufficiency of the evidence” are legal concepts easily conflated by lawyers when pursuing reversal of criminal conviction on appeal. They look and feel similar, but they are distinct concepts that produce radically different results. Reversal of a conviction based on “weight of the evidence” allows the government to retry the defendant. A reversal based on “sufficiency of the evidence” precludes a second trial based on the double jeopardy clause of the Fifth Amendment. Here’s why.

First, let’s examine the test employed by courts analyzing these two claims.

Sufficiency of the Evidence: “A conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.

Weight of the Evidence: A reversal based on weight of the evidence, on the other hand, draws the appellate court into questions of credibility. It refers to ‘a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.’” See Tibbs v. Florida, 457 U.S. at 37.

It is truism that under our federal constitution, as made applicable to the states through the Fourteenth Amendment, the government only gets one bite at the apple when prosecuting a defendant for an alleged trial. Every crime is composed of separate elements which must all be proven beyond a reasonable doubt. If the government puts on evidence proving some, but not all of the elements of a crime, the conviction must be reversed by an appellate tribunal. If the conviction is reversed based on insufficiency, the defendant cannot be retried. The reason for this, is that “the government’s case is so lacking, that it should not even have been submitted to the jury” in the first place. Tibbs v. Florida, 457 U.S. at 41. This is the functional equivalent to an acquittal. Here, the government gets one try at the conviction because its failure to prove guilt is pellucidly clear.

Sometimes, albeit not very often, the government will have put on some evidence going towards every element of the crime. The jury convicts, but an appellate court performing its own review of the record is left with a firm belief that the evidence of guilt is too flimsy and remands for a new trial—based on the interests of justice. Usually this is from sharply conflicting evidence, where credibility of a witness is at issue. Here, the appellate tribunal is acting more like a thirteenth juror injecting its own separate view of the “weight” of the evidence adduced at trial. This is the functional equivalent to a deadlocked jury, which results in a mistrial. Re-trial is allowed under these circumstances, because the government’s failure is not all that clear. Reversal of a criminal conviction, based on weight of the evidence, is more like a trial court’s decision declaring a “mistrial,” when the government is not at fault. In a mistrial, where there is a manifest necessity, through no fault of the government, double jeopardy does not prevent a re-trial of the defendant. Reversal based on weight of the evidence by an appellate tribunal works on a similar fault-theory.

The fine distinction between these two related, yet subtly different, concepts was highlighted by the U.S. Supreme Court in Tibbs v. Florida, 457 U.S. 31 (1982). In Tibbs, the Court “granted certiorari to decide the question whether Double Jeopardy barred retrial after a state appellate court set aside a criminal conviction on the ground that the verdict was ‘against the weight of the evidence.’” 457 U.S. at 32. The Court held that retrial was permissible, because it is not entitled to special deference, it merely works to give “the defendant a second opportunity to seek a favorable judgment.” 457 U.S. at 43.

When considering issues on appeal in criminal cases, having a clear understanding of the difference between “sufficiency” and “weight” of the evidence is critical in your representation of the client. It is also important for newly graduated law students to understand, and be able to explain the difference between the difference for purposes of passing the bar exam.

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