Beware saying “gotcha” if the prosecution misses key evidence upon resting
If a prosecutor tries to introduce more evidence at trial after I have moved for judgment of acquittal after the prosecution has rested, I am ready to argue that it is too late for the prosecution to offer more evidence after resting, after I move unsuccessfully for a judgment of acquittal, and after I decline to offer any evidence myself. I can make this argument on due process grounds, on grounds of lack of good cause to reopen evidence, on ground that it is unfair surprise for the prosecution to try to introduce new evidence after the defense announces that it is presenting no evidence, and on any other grounds to convince the trial court to exercise its sound discretion to prohibit reopening the prosecution’s evidence. However, I am unable to say that the caselaw supports an argument that double jeopardy protections are violated for the prosecution to do so. Matter of E.R.E., 523 A.2d 998 (D.C. 1987), cert. denied, 485 U.S. 937(1988) (thanks to a colleague for discussing E.R.E. on a listserv); Hargraves v. Va., 219 Va. 604, 248 S.E.2d 814 (1978); Dyson v. Md., 328 Md. 490, 615 A.2d 1182 (1992).
Dyson reviews numerous other courts that have decided this matter, saying "The majority of courts considering this issue have concluded, however, that the interest of justice requires that the trial judge be given some discretion to permit receipt of additional evidence after jury deliberations have begun, but that this discretion is significantly limited and should be exercised with great caution." Dyson, 615 A.2d at 1187. Moreover:
When reopening a case is permitted, it must be done in a way that does not unduly prejudice the rights of any party. State v. Thomas, supra, 374 S.E.2d at 722; Jones v. State, 15 Ark.App. 283, 692 S.W.2d 775, 777 (1985). Thus, “ample opportunity [must be afforded the opposing party] for cross-examination or rebuttal.” Perkins v. State, supra, 178 So.2d at 696.
Dyson, 615 A.2d at 1189.