When will a jury-tried criminal case arise where an upper court can be sure of the insufficiency of the evidence to meet the beyond a reasonable doubt standard?

It is true that seldom will a jury-tried criminal case arise where an upper court

[228 F.2d 810]

as distinguished from the trial judge can be sure of the insufficiency of the evidence to meet the beyond-a-reasonable-doubt standard. For usually a determination of such insufficiency will depend upon an evaluation of the credibility of witnesses whose demeanor the trial judge and the jury observed, but whom the upper court cannot see or hear. However, just as, in some few extreme cases, an upper court in determining that an error at the trial was harmless may, from the printed record alone, act on its firm conviction of the defendant's guilt, Kotteakos v. United States, 328 U. S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, so in some few extreme cases, an upper court may be similarly convinced, from the printed record alone, that the evidence did not suffice to prove guilt beyond a reasonable doubt.¹¹

[228 F.2d 810]