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103 Denver L. Rev. F. 1 (2025-2026)

handle is hein.journals/dnvrlwfv103 and id is 1 raw text is: THE BETRAYAL OF JACKSON V. VIRGINA AND THE WAY TO RESTORE ITS PURPOSE JOSEPHP. ATNIP*** ABSTRACT Perhaps the most often-cited case in criminal appellate decisions is Jackson v. Virginia,1 a 1979 Supreme Court case that intended to set a more rigorous standard of appellate review when a defendant claimed that the state failed to prove its case beyond a reasonable doubt. Jackson required that appellate courts review the record to determine whether there was suf- ficient evidence, not just some evidence, to convict. The appellate courts' exaltation of cautionary instructions found within the text of Jackson has rendered the holding meaningless. That overemphasis upon the cautionary instructions has resulted in a cavalier attitude toward the truth that has trickled down from the appellate courts to the trial courts, too often result- ing in the failure of our criminal justice actors to acknowledge overwhelming evidence of innocence. Most appellate courts have interpreted Jackson to mean that they should avoid even questioning the credibility of prosecution witnesses. But Jackson requires that appellate courts determine the quantum (the sufficiency) of evidence necessary to justify a verdict of guilty, so fail- ing to judge the veracity of witnesses usually means failing to measure the quantum of evidence. In this Article, I propose a way to measure the amount of evidence needed to qualify as sufficient. I propose that the appellate courts employ a standard of review that is used throughout our judicial system in other contexts. This Article argues that appellate courts should overturn a verdict of guilty if the record shows by clear and con- vincing evidence that the state did not prove its case beyond a reasonable doubt. This standard of review is relatively straightforward. This way to measure sufficiency will return the appellate courts to the the- sis of Jackson. It will provide courts with a methodology that will make Jackson easier to follow, ensure fairness to both the state and the defense, and make the sufficiency of the evidence analysis more structured and less *** Joe Atnip was the first elected District Public Defender in his two-county rural district in Ten- nessee. He held the job for 32 years and retired two years ago. He is a 1982 graduate of Vanderbilt University School of Law. He is a past president of the Tennessee Public Defenders Conference. He is a former member of the Board of the Tennessee Bar Association and a former member of the Board of the Tennessee Association of Criminal Defense Lawyers. He wishes to thank the Hon. David Raybin and Judge Mark Ward for reviewing drafts of the article and for their encouraging comments. The author is also grateful for the assistance and encouragement of George C. Thomas, Board of Gov- ernors Professor of Law and Judge Waugh Distinguished Scholar at Rutgers University School of Law, and co-author of CRIMINAL PROCEDURE: CASES, PRINCIPLES, AND POLICIES, a widely used case- book. Of this article, Professor Thomas has written, This is an important article. Joe Atnip demonstrates that courts do not fairly evaluate criminal defendants' claims of innocence. He allows the reader to experience these injustices by discussing actual cases in which he represented defendants. Perhaps most importantly, Mr. Atnip proposes a way to read the seminal Supreme Court case that would give innocent defendants a better chance to establish their innocence. 1. 443 U.S. 307, 316 (1979).