TN Supreme Court: Successor Judge May Act as 13th Juror in Review of Verdict

Press release from the Administrative Office of the Tennessee Courts; January 13, 2015:

The Tennessee Supreme Court today ruled that a successor judge who takes over a case from the judge that presided over the trial, may act as the “13th juror” in a case.  In its ruling, the Court created a rebuttable presumption, which means that it is assumed the judge can act as a 13th juror unless evidence is presented that contradicts that assumption.

In a criminal jury trial in the State of Tennessee, 12 jurors are tasked with determining a verdict. Under Tennessee law, a trial judge has a duty to act as the 13th juror, not to deliberate with the jury on the case, but to provide an independent layer of review in assessing the weight of the evidence. Examining the weight of the evidence requires consideration of a number of factors, including resolving conflicting evidence presented at trial. If the trial judge determines that the weight of the evidence is against the verdict, the trial judge must grant a new trial.

The question presented to the Court in this case is whether a successor judge may act as the 13th juror in cases in which the original trial judge is not available to act in that capacity. The Court held that a successor judge, after carefully considering the record, may act as the 13th juror in all cases except in the rare occasion in which the demeanor of a witness was the critical issue in weighing the evidence that led to the verdict.

In the trial at issue in this case, the judge presiding during the testimony and presentation of evidence left the bench between the time of the jury’s guilty verdict and the time of sentencing. The jury convicted the defendant of aggravated burglary, employing a firearm during the commission of a dangerous felony, aggravated robbery, and aggravated assault.The defendant, Justin Ellis, was sentenced to 19 years in prison for these offenses. The defense then filed a motion for a new trial and raised the issue of whether a successor judge could properly act as a 13th juror without having been present for the testimony. After reviewing the record, the successor judge determined that he could act as a 13th juror in this case. The defendant appealed, and the Court of Criminal Appeals determined that, under the facts of this case, the successor judge could not fill the role of 13th juror and ordered a new trial.

The case was appealed to the Supreme Court, which today created a rebuttable presumption that a successor judge may act as the 13th juror and held that the presumption could only be rebutted when the demeanor of a witness is the critical issue involved in resolving this issue. In this case, the Court determined that the demeanor of the witnesses was not the critical issue and that, as a result, the successor judge acted properly in serving as the 13th juror in this case in determining that the weight of the evidence supported the jury’s guilty verdict.

Read the unanimous opinion in State of Tennessee v. Justin Ellis, authored by Justice Jeffrey S. Bivins.