Ohio Supreme Court: Appellate judges acting as the “thirteenth juror” keep manifest weight review, but must defer to jury on witness credibility.
Ohio law has long recognized that a jury can have enough evidence to convict a defendant and still get the verdict wrong. That is why the Ohio Constitution allows courts of appeals to reverse a jury’s verdict on the weight of the evidence, but only when all three judges agree.
In July, the Supreme Court of Ohio clarified the limits of that authority in its unanimous decision in State v. Reillo, Slip Opinion No. 2026-Ohio-2701. The Court held that appellate judges must give deference to the jury’s assessment of witness credibility because jurors saw and heard the witnesses testify.
Reillo leaves that constitutional authority intact. The harder question is what appellate judges can still do with it.
Two Standards, Two Questions
Sufficiency and manifest weight are sometimes discussed together. But the Supreme Court of Ohio has repeatedly said they are different inquiries.
A sufficiency challenge asks whether the prosecution presented legally adequate evidence to support the conviction. The reviewing court does not decide whether it believes the State’s witnesses. It asks whether the evidence, viewed in the light most favorable to the prosecution, would allow a rational factfinder to find every element of the crime proven beyond a reasonable doubt.
Manifest weight asks something different.
As the Supreme Court explained in Reillo, sufficiency examines whether the State satisfied its “burden of production.” Manifest weight examines whether the State satisfied its “burden of persuasion.” The reviewing court weighs the evidence and reasonable inferences, considers witness credibility and asks whether the jury clearly lost its way, creating a manifest miscarriage of justice.
In its 1997 decision in State v. Thompkins, the Supreme Court of Ohio described an appellate court conducting manifest-weight review as a “thirteenth juror.” Drawing on the U.S. Supreme Court’s decision in Tibbs v. Florida, the Court explained that appellate judges may disagree with the jury’s resolution of conflicting evidence even when the evidence was legally sufficient to support a conviction.
The two standards also lead to different remedies.
When an appellate court finds the evidence legally insufficient, its decision has the effect of an acquittal for double-jeopardy purposes. The State cannot retry the defendant.
A manifest-weight reversal leads to a new trial. The prosecution presented legally sufficient evidence, but the appellate court concluded that the verdict should not stand after weighing that evidence. The Double Jeopardy Clause does not prevent another jury from hearing the case.
Sufficiency asks whether the evidence could support a conviction. Manifest weight asks whether it should.
A Power Written Into Ohio’s Constitution
Ohio’s manifest-weight doctrine also has a constitutional dimension that distinguishes it from ordinary appellate error correction.
Article IV, Section 3(B)(3) of the Ohio Constitution provides that a jury judgment cannot be reversed on the weight of the evidence unless all three appellate judges hearing the case concur.
The provision traces to the restructuring of Ohio’s judiciary associated with the 1912 Constitutional Convention. The reforms transformed the circuit courts into courts of appeals and were part of a broader effort to shorten Ohio litigation to what convention-era discussions described as “one trial and one review.”
The convention debates reflected concern that appellate review should not become a second trial. Yet the Constitution expressly preserved appellate authority to reverse a jury verdict on the weight of the evidence, subject to unanimity.
The Supreme Court has recognized the independent significance of weight review. In Eastley v. Volkman, the Court confronted earlier civil doctrine that had blurred sufficiency and manifest weight and reaffirmed that the two remain “quantitatively and qualitatively different.”
Reillo put that appellate power to the test.
Three Judges Said the Jury Lost Its Way
The constitutional power to second-guess a jury is rarely used. In Reillo, three appellate judges agreed it was necessary.
Nelson Reillo was charged with two counts of rape and one count of gross sexual imposition involving E.C., who testified that the offenses occurred when she was approximately eight years old. She disclosed the alleged abuse years later.
Before trial, the State offered to dismiss one rape charge and amend the other rape charge to fourth-degree felony gross sexual imposition. The remaining gross-sexual-imposition charge would have been amended to third-degree felony child endangering. The offer made probation possible and carried a maximum aggregate prison term of four and a half years.
His attorneys told the trial court they had thoroughly reviewed the offer with him, including how its potential penalties compared with his exposure at trial. Reillo “nonetheless maintains his innocence and wishes to proceed to trial,” his attorney told the court. The plea offer is not included in the Supreme Court’s opinion but adds context to what followed.
At trial, the State presented testimony from E.C., a social worker, a physician’s assistant and a Cleveland police detective. Reillo presented no evidence.
The jury convicted him of one rape count and gross sexual imposition and acquitted him of the other rape charge. He was sentenced to life in prison with parole eligibility after 15 years on the rape conviction, with a concurrent five-year sentence for gross sexual imposition.
On appeal, however, all three judges of the Eighth District Court of Appeals concluded that the convictions were against the manifest weight of the evidence.
Judge Sean Gallagher, writing for the panel, began by emphasizing how unusual that result was. He called manifest-weight reversal a “rare occurrence” and described Reillo as a “rare and exceptional case,” expressly warning that the decision should be limited to its particular facts.
The panel did not conclude that E.C. was lying.
Instead, Gallagher drew a distinction between a witness’s truthfulness and the reliability and persuasive force of the evidence. A witness can sincerely believe what she is saying, he wrote, without that alone resolving whether the State’s evidence was sufficiently credible to overcome the presumption of innocence.
The court examined E.C.’s limited memories of events approximately a decade earlier, the absence of corroborating evidence concerning the criminal conduct, the investigation, the use of leading questions and statements made by prosecutors during closing argument that the panel concluded went beyond the evidence presented at trial.
Among other things, the prosecutor told jurors that Reillo had removed E.C.’s underwear even though E.C. testified that she could not remember whether she had been wearing underwear.
During discussion of another alleged incident, the prosecutor described Reillo as naked and characterized the contact as sounding like vaginal intercourse, although E.C. testified that she did not remember whether she felt his genitalia.
The Eighth District nevertheless acknowledged that the evidence was legally sufficient.
Gallagher captured the distinction in a sentence: “although that evidence is sufficient, the overall credibility of that evidence is another matter.”
The panel reversed and ordered a new trial.
The Fight Over the “Thirteenth Juror”
The panel’s decision exposed a deeper disagreement over the role of the appellate court.
When the State sought en banc review, Judge Sean Gallagher wrote separately to explain why he believed the panel had applied existing manifest-weight law rather than expanded it.
His concern was direct: if appellate courts were required to defer to the jury’s credibility determinations when conducting manifest-weight review, the distinction between weight and sufficiency could disappear.
In the original opinion, Gallagher warned that such an approach would “in effect” merge the two standards and further erode what he called the already “Herculean task” of establishing that a conviction is against the manifest weight of the evidence.
In his later concurrence from the denial of en banc review, Gallagher clarified that the panel was not arguing for absolute disregard of the jury. Appellate courts cannot reverse lightly, he wrote, and cannot simply substitute their judgment for that of the factfinder. His argument was that the extraordinary requirements already embedded in manifest-weight review supplied that protection.
Other Eighth District judges saw a genuine conflict.
Judge Eileen T. Gallagher, dissenting from the denial of en banc review, concluded that the appropriate standard was somewhere between the competing positions. Without clarification, she warned, different conceptions of deference could “drastically” broaden or narrow the appellate court’s role depending upon the panel hearing the case.
She expressly called for “[c]larity on our role as the thirteenth juror.”
The uncertainty was not new.
In a 2022 law-review article examining Ohio’s unusual manifest-weight doctrine, Case Western Reserve University law professor Andrew S. Pollis noted that Ohio law was already “muddled on the extent to which the appellate court independently evaluates witness credibility when performing a manifest-weight challenge.”
Pollis also described Ohio as unusual nationally. Although a handful of states permit some form of appellate weight review, he identified Ohio as having a particularly developed body of law allowing appellate courts to independently review the weight of the evidence.
What Rule Would You Write?
The Supreme Court of Ohio accepted the case, and the disagreement became even clearer at oral argument.
The State argued that conflicting evidence should be a prerequisite to manifest-weight relief and that appellate judges must account for the jury’s superior ability to see witnesses, hear their voices and observe their demeanor.
Reillo’s attorney argued that the existing standard already protected jury verdicts: reversal was confined to exceptional cases involving manifest injustice, and three judges had to agree that the jury clearly lost its way. Adding a separate credibility-deference requirement, he argued, risked leaving little meaningful work for manifest-weight review.
He characterized the State’s request as “a solution in search of a problem.” Manifest-weight reversals, he told the justices, were not happening “left and right”; appellate courts already treated the remedy as one reserved for rare cases.
The argument also exposed a deeper disagreement over Thompkins. The State argued that its “thirteenth juror” language had opened the door to appellate courts conducting something approaching de novo factual review. Reillo’s position, echoed by the public defenders appearing as amici, was that Thompkins had done no such thing because manifest-weight review remained highly deferential to the verdict. The amici argued that reversals were already reserved for exceptional cases and that appellate disagreement with a jury had to be profound before reversal was warranted.
The justices tested both positions.
A hypothetical involving facially fantastical testimony—an account involving a justice and a spaceship—pressed on the weakness of an absolute “conflicting evidence” requirement. If the State’s only witness told a story that satisfied every statutory element but was patently unbelievable, could an appellate court really do nothing merely because the defendant had presented no contradictory evidence?
The Supreme Court Draws a Line
The Court chose neither side’s rule entirely.
Writing for a unanimous Court, Chief Justice Sharon Kennedy rejected the Eighth District’s approach.
Appellate courts conducting manifest-weight review, the Court held, must give deference to the factfinder’s credibility determinations. The Court emphasized the jury’s institutional advantage: jurors see the witnesses and can observe demeanor, gestures, and voice inflections that a written record cannot capture.
The Court also rejected the Eighth District’s use of the prosecutor’s closing statements in its manifest-weight analysis. Closing arguments are not evidence, the Court noted, and therefore did not supply conflicting evidence to weigh against E.C.’s testimony.
But the Court did not adopt the State’s proposed rule that conflicting evidence is always required.
There may be cases, the Court acknowledged, where no competing evidence exists but the testimony supporting conviction is so internally contradictory on material facts, so directly impeached, or so “fantastical” that its credibility can be undermined from the cold record.
There must, however, be “something more than a mere inconsistency.”
The Court concluded that E.C.’s testimony did not cross that line. The purported inconsistencies identified by the Eighth District either were not inconsistencies when viewed in context or concerned details unrelated to the elements of the offenses.
The jury’s split verdict also mattered to the Court. Because jurors convicted Reillo of two counts but acquitted him of another rape charge, the Court reasoned that the jury appeared capable of parsing the testimony and making credibility determinations rather than simply accepting everything the State presented.
The Supreme Court reversed the Eighth District and sent the case back for consideration of Reillo’s remaining assignment of error.
The Court was explicit, however, that manifest-weight review survives.
“Manifest-weight review is a meaningful protection against unjust convictions,” the Court wrote.
But manifest-weight reversals were already rare.
In an amicus brief, the Cuyahoga and Hamilton County public defenders identified more than 300 Ohio appellate cases since 2019 challenging rape or sexual-battery convictions on manifest-weight grounds. They found three reversals, including Reillo.
The same three-judge panel that decided Reillo had considered 19 other manifest-weight challenges together; Reillo was the only case in which it reversed on that ground.
What Is Left for the Thirteenth Juror?
For nearly three decades, Ohio courts have used the “thirteenth juror” to describe manifest-weight review. After Reillo, the question is whether that description still fits.
Pollis does not think it does.
An actual juror has the job of listening, thinking, analyzing, and debating the evidence with the other jurors. And because a criminal conviction requires unanimity, each juror has veto power over a conviction. An appellate judge conducting manifest-weight review occupies a fundamentally different role.
“Ultimately, the characterization is not accurate in that a court does not have these same powers,” Pollis said.
Pollis also expects Reillo to further restrain the use of manifest-weight review. Although the Supreme Court expressly preserved the remedy, he said the decision may cause appellate judges to approach future manifest-weight challenges with greater hesitation.
“It puts a pall over manifest-weight review,” Pollis said.
Reillo leaves manifest-weight review in place. The question now is how willing appellate judges will be to exercise it.