In a way it seems unfair, because the evidence is considered in the light most favorable to the prosecution even though the Defendant is “presumed innocent”. Needless to say, these motions are infrequently granted.
I had a jury trial several years ago where my client was charged with assault and battery. The proof that the prosecution introduced at trial was a hearsay statement (admitted over objection by the Judge as an excited utterance) from the daughter of the complaining witness that the complaining witness yelled from another room that her boyfriend “David spit on me”. The complaining witness did not appear at the trial to testify. In my motion for directed verdict I told the Court that the offense of assault and battery required proof beyond a reasonable doubt of intent. There are instances where you may speak with someone and spit unintentionally comes from the other person’s mouth (when I was a child there was an expression “say it, don’t spray it”). The jury in this case would have to speculate, or guess, whether or not the alleged spitting was intentional or accidental which is improper.