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

A judge in a Massachusetts criminal trial must enter a finding of not guilty when the evidence is insufficient as a matter of law to sustain a conviction. Rule 25 of the Massachusetts Rules of Criminal Procedure requires that finding. The defense requests the finding by a motion for a required finding of not guilty. The judge may act on the defendant’s motion or on the judge’s own motion. The defense ordinarily makes the motion when the Commonwealth rests its case and renews the motion at the close of all the evidence. The judge may rule at those times, or may reserve decision and rule after the verdict under Rule 25(b).

This page explains what Rule 25 provides and the legal standard the judge applies, when the motion must be made and renewed, and what happens when a judge reserves decision. The page then explains the relief a judge may grant after a guilty verdict under Rule 25(b)(2), including the 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 defendant may renew the motion within five days after the jury is discharged. The renewed motion 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 the motion was called a motion for a directed verdict. 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. The question 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.

In Latimore, the Supreme Judicial Court 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 the Commonwealth’s 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 for the jury to weigh. Those weaknesses and contradictions 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

Defense counsel makes the first motion when the Commonwealth rests. The judge measures sufficiency at that point on the Commonwealth’s case in chief alone. The defendant’s rights become fixed at that moment. A defense case that follows cannot repair a deficiency in the Commonwealth’s evidence. 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 identify that theory in the motion. 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 judge examines the Commonwealth’s evidence on that theory as of the close of the Commonwealth’s 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. Counsel should therefore argue the motion charge by charge and element by element. Counsel names the offense, lists the elements of the offense, identifies which element of the offense the Commonwealth failed to prove, and addresses each theory and each indictment separately, asking for a ruling on each.

An element-by-element argument directs the judge to the weakest element rather than to the general impression of the case. The argument sometimes produces a required finding on the most serious charge while lesser charges proceed. The argument also leaves an appellate record framed element by element as of the moment the Commonwealth rested.

Renewal at the Close of All the Evidence

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

The Commonwealth’s position deteriorates only when evidence the Commonwealth 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 Supreme Judicial Court gave the example of evidence that the defendant was incarcerated at the time of the offense. Evidence of that kind 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). The appellate court, however, then reviews only for a substantial risk of a miscarriage of justice. The court considers all the evidence in that review rather than the Commonwealth’s case in chief alone. Counsel should therefore make and renew the motion 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 whether the Commonwealth can appeal depends on when the judge rules. If the judge enters a finding of not guilty before the verdict, the acquittal is final. The Commonwealth cannot appeal that acquittal.

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 without a second trial. Commonwealth v. Therrien, 383 Mass. 529, 531 to 532 (1981).

When the judge reserves decision, the motion remains pending while the jury deliberates. A defendant whose motion was reserved and who is then convicted still receives a ruling on the motion. The judge decides the reserved motion on the same Latimore standard.

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

Rule 25(b)(2) contains two sentences.

The first sentence permits a defendant whose motion was denied to renew the motion 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 an appellate court has upheld the conviction on direct appeal. An appellate court reviews the reduction 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).

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. The judge may reduce a verdict even when the evidence legally supports the jury’s verdict, because the purpose of the power 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 Supreme Judicial Court has counseled that the power be used sparingly. The Supreme Judicial Court also expects a judge who reduces a verdict to state the reasons. On appeal, the appellate court asks only whether the judge abused that discretion or committed an error of law. Woodward, 427 Mass. at 667 to 669.

In Woodward, the trial judge reduced a second degree murder verdict to involuntary manslaughter. The power is not confined to homicide. The judge may reduce a verdict on any charge that has a lesser included offense. In a close case, counsel should brief the reduction alternative expressly in the renewed motion.

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 the statute is narrower than the rule. 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. The statute does not authorize the entry of a finding of not guilty. Only Rule 25 permits the judge to enter a finding of not guilty.

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 nevertheless final. 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). The appellate court can reinstate the jury’s verdict without a second trial. The appeal therefore does not violate 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.

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, counsel makes the motion to the judge who will also decide the facts. The sufficiency standard is the same as in a jury trial. The subdivisions on reserved decision and post-verdict relief in Rule 25(b) are written for jury trials. In a bench trial, the judge still measures the Commonwealth’s evidence as of the close of the Commonwealth’s case. The motion also frames the sufficiency question for appeal.

Rule 25 Within the Trial

The ruling on a motion for a required finding is one of several rulings a judge makes during a Massachusetts criminal trial. Through the broader trial motion practice of motions in limine, objections, and motions to strike, the judge decides what evidence the jury hears. The judge decides a motion for a required finding on the evidence that was admitted.

A judge may declare a mistrial instead of ruling on sufficiency. Whether the Commonwealth may then try the case again depends on the double jeopardy rules for mistrials. After a conviction, a defendant may seek relief through both the renewed motion under Rule 25(b)(2) and the motion for a new trial under Rule 30(b). The judge’s rulings on sufficiency are 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.