In a criminal trial, the government MUST prove the defendant guilty of all elements of the offense charged. If, in the light most favorable to the government, the offered evidence proves the accused guilty of all elements, beyond a reasonable doubt, the defendant is said to be "legally guilty." The claim of "insufficient evidence" is a question of legal guilt and is, therefore, a question of law for both the state and federal courts to resolve. If the government has failed to prove guilt on all elements the accused must be acquitted (See, In re Winship, 90 s.Ct. 1068 [1970]). A person may be legally guilty but also be found NOT guilty by the Finder of Fact (Jury, or judge at bench trial) due to what is believed from the evidence. This is called the state court "finding of fact."

In case of conviction, a "manifest weight of the evidence claim" challenges the finding of fact. The claim might be, "Appellant’s first degree murder conviction is against the manifest weight of the evidence and must be reversed as a ‘manifest miscarriage of justice’ has occurred."

This is a claim that the factual determination is flawed; it is a question of fact and may only be brought in the state courts as the state court "trier-of-fact" is deemed to be in the best position to make decisions of fact regarding the evidence, including finding whether or not a witness was credible. Generally, what the finder of fact believes from the evidence will remain as his verdict. Along with the claim we need to know the Standard of Review which, for Ohio, might read like, "In determining whether a verdict is against the manifest weight of the evidence, the reviewing court sits as the ‘thirteenth juror’ and weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the trier of fact lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and anew trial ordered" (State v Martin, 128 NE2d 7 [1955]; State v Otten, 515 NE2d 1009 [1986]; State v Thompkins, 678 NE2d 541 [1997]; see also Tibbs v Florida, 102 s.Ct. 2211 [1982]).

The reviewing court then would review the supporting argument along with all evidence and decide whether to grant a new trial. It only takes one juror to vote "not guilty"--the reviewing court acts as an undecided juror.

The state court finding of fact is presumed to be correct. One way to challenge the presumption of correctness is through the claim of conviction against the manifest weight of the evidence (see above). Presumption of correctness does not apply when the finding of fact relies on facts "not in evidence."

The presumption of correctness was born from the 1670 trial of William Penn and exists to ensure "fair trials" without government influence. Presumption of correctness does not allow the government to reverse the decision of the people who have judged an accused "not guilty," effectively protecting against being tried twice for the same crime, or "double jeopardy. The presumption of correctness also does not allow a constitutionally infirm conviction to stand when a state court fact-finder has erred in convicting an accused based upon faulty fact finding. In short, the government cannot force a conviction, even if the acquittal was against evidence. However, a conviction against the evidence must be reversed. The presumption of correctness is not to be used by the government to keep a wrongfully-convicted person imprisoned. Application of a presumption of correctness in that manner creates a "bill of attainder," which is a constitutionally-prohibited law that takes away a person’s rights or liberties without trial and completely undermines the duty of the of the various courts’ power of review.

Sempre avanti, D.M. Sal Salerno, Toledo, Ohio