As soon as the prosecution rests, the defense may make a motion at sidebar for a directed verdict. If the judge deems that the prosecution's evidence, even if believed completely by the jury, does not satisfy all the elements of the charge, a directed verdict will issue.

I had it happen only once. A 21-year old man, Jamie, was charged with burglary for allegedly breaking into a closed bar and stealing bottles of booze. A week after the bottles were missing, a woman told the owner that Jamie hosted a party where the owner's missing alcohol was served. The owner checked out Jamie's trash, which was set on the curb for garbage collection, and discovered a dozen or so of his bottles.

At trial the woman testified that Jamie had told her that there was alcohol, stolen from the owner, being served. On cross she said there were at least 100 people at the party and that most of the guests brought bottles. The house was filled with many guests when she arrived, and she was unable to identify which bottles had actually belonged to the bar. The owner testified he identified them in the trash because they bore a unique stamp belonging to the bar.

After the prosecution rested, I asked to approach sidebar, and the judge said to make my motion from the counsel table. I paused because this type of motion is to be made outside of the jury, but the judge said, "You want a directed verdict, don't you?"

At that point I knew he was going to grant it, so I made the motion in open court.

Judges typically don't like taking cases from the jury, but the facts justified this instance.

Also, the defense may make a motion for judgment notwithstanding the verdict after a jury returns a guilty verdict. If the judge determines that the evidence (viewed in a light most favorable to the prosecution)did not satisfy the elements of the offense, the verdict may be set aside. In order to make this motion the defense would have to have first asked for a directed verdict when the prosecution rested his or her case in chief.

As you can imagine, these motions are rarely successful.