Rule 25: The Motion for a Required Finding of Not Guilty in Massachusetts

Rule 25 of the Massachusetts Rules of Criminal Procedure governs the motion for a required finding of not guilty. Under the rule, a judge must enter a finding of not guilty when the evidence is insufficient as a matter of law to sustain a conviction. The judge may act on the defendant’s motion or on the judge’s own motion. A judge enters a required finding of not guilty after the Commonwealth rests its case but before the case goes to the jury for deliberations.

This page explains what the rule provides and the legal standard the judge applies. It covers when the motion must be made and renewed, and what happens when a judge reserves decision. It then explains the separate relief available after a guilty verdict under Rule 25(b)(2), including a judge’s power to reduce a verdict to a lesser offense.

What Rule 25 Provides

Rule 25(a) provides that the judge “on motion of a defendant or on his own motion shall enter a finding of not guilty of the offense charged in an indictment or complaint or any part thereof after the evidence on either side is closed if the evidence is insufficient as a matter of law to sustain a conviction on the charge.”

When the motion is made at the close of the Commonwealth’s evidence, the judge must rule on it at that time. If the motion is denied or allowed only in part, the defendant may then present evidence without having reserved the right to do so.

Rule 25(b) applies to jury trials. Under Rule 25(b)(1), when the motion is made at the close of all the evidence, the judge may reserve decision and submit the case to the jury. The judge may then decide the motion before the verdict, after a guilty verdict, or after the jury is discharged without a verdict.

Under Rule 25(b)(2), the motion may be renewed within five days after the jury is discharged, and it may include a motion for a new trial in the alternative. If a guilty verdict was returned, the judge has three options. The judge may set aside the verdict and order a new trial, order the entry of a finding of not guilty, or order the entry of a finding of guilty of a lesser included offense.

Rule 25(c)(1) gives the Commonwealth the right to appeal when a judge grants relief under Rule 25(b) after a jury verdict of guilty. The rule applies in the District Court and the Superior Court.

The rule’s caption reads “Motion required for finding of not guilty.” The rule text, the reporter’s notes, and the decisions describe the same motion as the motion for a required finding of not guilty. Before 1979 it was called a motion for a directed verdict, and older decisions use that name.

The Legal Standard

The question on a motion for a required finding is whether the Commonwealth presented enough evidence to permit the jury to decide the case. It is not whether the judge believes the defendant is guilty. The Supreme Judicial Court set the governing test in Commonwealth v. Latimore, 378 Mass. 671, 677 to 678 (1979). The judge asks whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Latimore rejected an older approach under which some evidence on each element, however slight, defeated the motion. The evidence must be enough to satisfy a rational factfinder of every element beyond a reasonable doubt. A conviction on legally insufficient evidence cannot stand even where the judge instructed the jury correctly on the burden of proof. Latimore, 378 Mass. at 676 to 678.

The Commonwealth may rely entirely on circumstantial evidence. The inferences drawn in its favor need only be reasonable and possible, not necessary or inescapable. Commonwealth v. O’Laughlin, 446 Mass. 188, 198 to 199 (2006). The judge does not weigh the credibility of witnesses at this stage. Weaknesses in an identification, contradictions between witnesses, and the defendant’s own account are matters for the jury. They do not by themselves entitle a defendant to a required finding. O’Laughlin, 446 Mass. at 204 to 205.

The Motion at the Close of the Commonwealth’s Evidence

The first motion is made when the Commonwealth rests. Sufficiency at that point is measured on the Commonwealth’s case in chief alone. The defendant’s rights become fixed at that moment, and a defense case that follows cannot repair a deficiency in the Commonwealth’s proof. Commonwealth v. Berry, 431 Mass. 326, 330 to 331 (2000), citing Commonwealth v. Kelley, 370 Mass. 147, 150 n.1 (1976).

A defendant who intends to challenge a specific theory of liability must say so. A generally phrased motion does not preserve a challenge to one theory where the evidence supports an alternative theory. When the defendant specifies the theory, the Commonwealth’s evidence on that theory is examined as of the close of its case. If the evidence is lacking, the defendant is entitled to a required finding on that theory. Berry, 431 Mass. at 331 to 332.

Rule 25(a) permits a finding of not guilty on “any part” of a charge. The motion should therefore be argued charge by charge and element by element. Counsel names the offense, lists the elements, identifies the element the Commonwealth failed to prove, and addresses each theory and each indictment separately, asking for a ruling on each.

Argued this way, the motion directs the judge to the weakest element rather than to the general impression of the case. It sometimes produces a required finding on the most serious charge while lesser charges proceed. It also leaves an appellate record framed element by element at the moment the Commonwealth’s proof was fixed.

Renewal at the Close of All the Evidence

If the defense presents evidence, the motion must be renewed at the close of all the evidence. A reviewing court then considers the evidence at two points in time. It looks at the close of the Commonwealth’s case, to decide whether the motion should have been allowed then. It also looks at the close of all the evidence, to decide whether the Commonwealth’s position deteriorated after it rested. O’Laughlin, 446 Mass. at 198, quoting Commonwealth v. Sheline, 391 Mass. 279, 283 (1984).

The Commonwealth’s position deteriorates only when evidence it needed to get the case to the jury is later shown to be incredible or conclusively incorrect, and not because the defendant contradicted that evidence. O’Laughlin, 446 Mass. at 203, quoting Kater v. Commonwealth, 421 Mass. 17, 20 (1995). Defense testimony that merely contradicts the Commonwealth’s witnesses creates a jury question, not a required finding.

The example the court gives is evidence that the defendant was incarcerated at the time of the offense. That evidence creates reasonable doubt as a matter of law. O’Laughlin, 446 Mass. at 203 to 204, citing Commonwealth v. Vaughn, 23 Mass. App. Ct. 40, 42 to 43 (1986).

A complete failure to move for a required finding does not forfeit appellate review of sufficiency. A conviction on legally insufficient evidence is inherently serious enough to create a substantial risk of a miscarriage of justice. Commonwealth v. McGovern, 397 Mass. 863, 867 to 868 (1986). There is still a cost to relying on that rule. Review is then for a substantial risk of a miscarriage of justice, and the analysis is not confined to the Commonwealth’s case in chief. The motion should be made and renewed in every case.

Reserving Decision Under Rule 25(b)(1)

When the motion is made at the close of all the evidence in a jury trial, the judge may reserve decision and let the jury deliberate. Judges use this option in close cases because the timing of the ruling determines whether the Commonwealth can appeal. If the judge enters a finding of not guilty before the verdict, the acquittal is final and the Commonwealth cannot appeal it.

If the judge instead submits the case, the jury returns a guilty verdict, and the judge then allows the motion, the Commonwealth may appeal. An appellate court that disagrees with the judge reinstates the verdict, and no second trial is needed. Commonwealth v. Therrien, 383 Mass. 529, 531 to 532 (1981).

For the defense, a reserved decision means the motion remains live through deliberations. A defendant whose motion was reserved and who is then convicted still has the judge’s ruling to come. The judge decides it on the same Latimore standard.

Relief After the Verdict Under Rule 25(b)(2)

Rule 25(b)(2) contains two sentences, and the distinction between them governs what relief remains available after a guilty verdict.

The first sentence permits a defendant whose motion was denied to renew it within five days after the jury is discharged. The renewed motion may include a motion for a new trial in the alternative.

The second sentence gives the judge three options after a guilty verdict. The judge may set aside the verdict and order a new trial, order the entry of a finding of not guilty, or order the entry of a finding of guilty of any lesser included offense. The second sentence has no time limit.

The Supreme Judicial Court has confirmed that a motion judge retains discretionary authority under Rule 25(b)(2) to reduce a jury’s verdict even after the conviction has been affirmed on direct appeal. Review is for abuse of discretion even where the motion judge did not preside at the trial. Commonwealth v. Rogers, 494 Mass. 629, 647 to 648 (2024).

The power to reduce a verdict is the option most often overlooked. A judge’s authority under Rule 25(b)(2) is much like the Supreme Judicial Court’s authority under G.L. c. 278, § 33E in first degree murder cases. It may be exercised even when the evidence legally supports the jury’s verdict, because its purpose is to ensure that the result is consonant with justice. Commonwealth v. Woodward, 427 Mass. 659, 666 to 667 (1998).

In deciding the motion, the judge may review all the evidence, including the defendant’s version of the facts, and may credit the defendant’s testimony. The court has counseled that the power be used sparingly, and it expects a judge who reduces a verdict to state the reasons. On appeal the court asks only whether the judge abused that discretion or committed an error of law. Woodward, 427 Mass. at 667 to 669.

Woodward itself is the familiar example: a second degree murder verdict reduced to involuntary manslaughter. The power is not confined to homicide. It applies to any charge that has a lesser included offense, and in a close case the renewed motion should brief the reduction alternative expressly.

A reduction must be to a lesser included offense that is unaffected by the problem warranting the reduction. A reduction is not justified where it would be inconsistent with the weight of the evidence or rests on factors irrelevant to the level of offense proved. Rogers, 494 Mass. 629, quoting Commonwealth v. Sanchez, 485 Mass. 491, 504 to 505 (2020).

G.L. c. 278, § 11 remains in force alongside the rule, but it is narrower. The statute permits a judge, on a renewed motion, to set aside the verdict and order a new trial or to enter a finding of guilty of a lesser included offense. It does not authorize the entry of a finding of not guilty. That relief exists only under Rule 25.

Acquittal, Double Jeopardy, and the Commonwealth’s Appeal

A finding of not guilty entered under Rule 25 before the jury returns a verdict is an acquittal. Double jeopardy principles bar the Commonwealth from retrying the defendant. No rule or statute permits the Commonwealth to appeal a required finding entered before the verdict. Commonwealth v. Lowder, 432 Mass. 92, 93, 99 to 100 (2000); Therrien, 383 Mass. at 535 to 536.

In Lowder the judge entered findings of not guilty after the prosecutor’s opening statement. The Supreme Judicial Court held that a judge has the power to acquit at that early stage, that the power should be exercised rarely, and that the judge abused his discretion. The acquittal was still final, and the Commonwealth could not try the defendant again. Lowder, 432 Mass. at 93.

When the judge acts after a guilty verdict, Rule 25(c)(1) and G.L. c. 278, § 28E permit the Commonwealth to appeal from the allowance of a post-verdict motion under Rule 25(b). Because the jury’s verdict can be reinstated on appeal, the defendant is not exposed to a second trial, and the appeal does not offend double jeopardy. Therrien, 383 Mass. at 531 to 532.

The double jeopardy protection that attaches to an acquittal therefore depends on when the judge rules. That is why the timing choices under Rule 25(b)(1) matter to both sides.

Rule 25 in a Jury-Waived Trial

Rule 25(a) applies after the evidence is closed whether the trial is to a jury or to a judge. In a jury-waived trial in the District Court or the Superior Court, the motion is made to the judge who will also decide the facts, and the sufficiency standard is the same. The subdivisions on reserved decision and post-verdict relief in Rule 25(b) are written for jury trials. In a bench trial the motion still fixes the Commonwealth’s proof at the close of its case and frames the sufficiency question for appeal.

Rule 25 Within the Trial

The motion for a required finding is one of several rulings that shape a Massachusetts criminal trial. The broader trial motion practice of motions in limine, objections, and motions to strike determines what evidence the jury hears. A required finding is decided on the evidence that was admitted.

Where a judge declares a mistrial instead of ruling on sufficiency, different rules govern whether the Commonwealth may try the case again. After a conviction, the renewed motion under Rule 25(b)(2) and the motion for a new trial under Rule 30(b) overlap and function as complementary routes to relief. The rulings on sufficiency become part of the record on appeal and postconviction review.

Attorney Joe Serpa tries criminal cases in the District Court and the Superior Court. Serpa Law Office can be reached at 617.936.0201.