THE FEDERAL CRIMINAL TRIAL
After the discovery process concludes and all the pretrial motions have been made, it is time to select a jury.
Jury Selection A criminal defendant's right to a trial by an impartial jury is guaranteed by the Sixth Amendment to the United States, which states in pertinent part "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed."
The procedure for obtaining this impartial jury is found in the Federal Rules of Criminal Procedure [hereinafter FRCrP]. Rule 23 states that a defendant who is entitled to a jury trial, must have a jury unless he waives his right to a jury trial in writing, the government consents, and the court approves. FRCrP. 23(a). The jury is composed of 12 members, though the parties may stipulate that the jury can consist of less than 12, or if the court finds there is good cause to excuse a juror. Id. 23(b). During jury selection, prospective jurors can be examined either by the court or by the attorneys for the parties. Id. 24(a)(1). However, the court must permit the attorneys to ask further questions that the court considers proper or to submit questions that the court may ask if it considers them proper. Id. 24(a)(2).
Each side is entitled to a certain number of peremptory challenges. Id. 24(b). A peremptory challenge means that either side may excuse a juror for no official reason; since Batson, however, peremptory challenges based solely on race are not allowed. According to FRCrP 24, in a death penalty case, each side gets 20 peremptory challenges, Id. 24(b)(1), while all other felony cases allot 6 peremptory challenges to the government and 10 combined peremptory challenges to the defendant(s). Id. 24(b)(2). In the event an alternate juror is asked to step in, each side is entitled to additional peremptory challenges. Id. 24(c)(4). In some situations, the court may allow extra peremptory challenges. Both sides have unlimited challenges for cause, but if they choose to exercise those challenges, they must make a compelling argument that requires that that juror should be excused.
Up to 6 alternate jurors may be selected to replace any jurors who are unable to perform or who are disqualified from performing their duties. FRCrP 24(c)(1). Alternate jurors must have the same qualifications and be selected in the same manner as any other juror, and they replace jurors in the same sequence in which the alternates were selected. Id. 24(c)(2).
Opening Statements After the jury is successfully empanelled, it is time for opening statements. The government goes first, laying out what it thinks the evidence will show. It must be very careful not to make arguments during the opening statements, and anything that is said during the opening statements cannot be treated as evidence.
Opening statements can last a very long time. In some cases, each party may have two hours. In other cases, the opening statements may be shorter. It depends on the time alloted by the judge.
After the government makes its opening statements, it is time for the defense to make opening statements. The defense can elect to make its statements at this point, or it can wait until the government finishes its case-in-chief. The choice depends on what works better strategically for the defense; if the defense feels that the prosecution can't prove anything and has a weak case, it may decide to wait. If the case might be closer and might require a little more empathy from the jury, the defense may elect to make its opening statements immediately after the government.
During the defense's opening statements, it may try to refer to the government's statements to put them in a fuller context, or it may elect to state that the evidence will show that the defendant didn't commit the crime. There is no one way to make an opening statement, as evidenced by the recent Enron trial where Jeffrey Skilling elected to argue that the evidence will show that no crime was committed, while Ken Lay elected to highlight his childhood and his contributions to the community.
After the opening statements, the trial really begins.
Direct Examination The first side to present its case-in-chief is the government. It has the burden of proving that, beyond a reasonable doubt, the defendant committed the alleged crimes. To prove the defendant's guilt, the government must present evidence that supports this, and eliciting testimony on direct examination (which is defined as "The first questioning of a witness in a trial or other proceeding, conducted by the party who called the witness to testify." Black's Law Dictionary 492 (8th ed. 2005)) is part of a complex procedure.
Rule 601 of the Federal Rules of Evidence [hereinafter FRE] states that "[e]very person is competent to be a witness," unless there is some exception found in the FRE. However, the witness can only testify about things within that person's personal knowledge. FRE 602. It is up to the direct examiner to get the witness to establish that he has personal knowledge of the matter. Id. This is often done through the witness's own testimony, which can be given only after an oath or "affirmation administered in a form calculated to awaken the witness' conscience and impress the witness's mind with the duty" to testify truthfully. Id. 603.
During direct examination, no leading questions may be asked, except "as may be necessary to develop the witness's testimony." Id. 611(c). They may be used to refresh a witness's recollection of events, or to quicken the pace of trial. 3-RULE 611 Federal Rules of Evidence Manual § 611.02 (2005). The general idea behind this rule is that the jury wants and needs to hear the testimony from the witness, rather than the lawyer, and leading questions prohibit the jury from getting a full picture. Id. On the other hand, leading questions are essential for cross-examination.
Cross Examination Cross examination is the opportunity for the defense to clarify some of the things to which the witness testified. On TV, cross examinations make for high drama. In reality, there are few "Perry Mason" moments.
Nonetheless, cross examinations are an essential tool for the defense, and they are conducted largely through leading, yes-or-no questions. For example, suppose a witness testified about "a series of drafts of a July 2000 news release in which quarterly earnings were raised from 32 cents per share to 33 cents and finally to 34 cents," which were intended to show that Enron had beat expectations. Mary Flood, Deception Kept Stock Up, Says Witness, Houston Chronicle, Feb. 2, 2006, available here (last visited March 7, 2008). Assuming arguendo that the data supported the revised drafts, and the government didn't cover that during the direct examination, the defense could lead the witness into admitting that the data supported revising the drafts.
The more exciting function of cross examinations is using them to impeach the witness. Impeaching a witness is not the same as impeaching a President; impeaching a witness involves discrediting the veracity of a witness. See Black's Law Dictionary 768 (8th ed. 2005). Under the Federal Rules of Evidence [hereinafter FRE], either party can impeach a witness. FRE 607. There are a number of ways this can be done, and one is to attack the witness's character. "The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation" but only as to the witness's character for truthfulness. Id. 608(a). Specific instances of the witness's conduct for truthfulness cannot be introduced with extrinsic evidence, unless it is done on cross-examination. Id. 608(b).
The witness can also be impeached by evidence of a prior conviction. If the witness has been convicted of a crime punishable by more than a year in prison, evidence of that conviction can be introduced as can evidence of any conviction that involves dishonesty or false statements. Id. 609(a). If the conviction happened more than 10 years prior to the testimony, it can only be introduced in rare situations. Id. 609(b). Furthermore, if the conviction has been subject to a pardon, annulment, or certificate of rehabilitation, evidence of that conviction cannot be introduced. Id. 609(c).
Another way to impeach a witness is to use his prior statements against him. For example, if, hypothetically, a witness testified at trial that his manager had authorized "cooking the books" but had initially admitted to investigators that he alone had authorized such activity, the defense would want to challenge his trial testimony. Prior inconsistent statements of a witness are admissible. Id. 613(b).
Finally, there might be a temptation for an examiner to question a witness's religious beliefs, in order to shore up that person's credibility, or to chink away at that person's credibility. For example, perhaps on direct, the government wants to play up someone's devout Christianity, and therefore would never tell a lie for risk of smiting. Or on cross-examination, the defense wants to say that the witness is a worshipper of Satan, and as such can never tell the truth. Both are inappropriate and barred by the FRE. Id. 610.
This process occurs for each witness. First the direct examination, and then the cross examination, and in some instances, if the cross was extremely effective, a redirect will be allowed for purposes of rehabilitating the witness.
After the government is finished with its case-in-chief, the defense can present its case-in-chief. In some instances the defense will not present one, if it feels that the prosecution has not proved that the defendant committed a crime. Most often, however, the defense will present its case-in-chief, and it functions exactly like the government's case-in-chief, except the defense conducts direct examination on its witnesses and the government conducts the cross examination.
After the end of the cases-in-chief, the defense may file a motion for a judgment of acquittal. The court must "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction." FRCrP 29(a). The court might deny the motion, and leave it up to the jury.
Jury Instructions At the end of the presentation of the evidence, or at any earlier time that the court reasonably sets, any party can request in writing that the court instruct the jury on the law. FRCrP 30(a). Either party can object to the form of the jury instructions, but it must give specific reasons for the objection; perhaps the instruction provided by the government leaves off a key element that must be, and hasn't been, proved for conviction. Id. 30(d). Whatever the case, the objection must be preserved for the purposes of appeal.
Closing Arguments After the jury instructions are submitted, it is time for closing arguments. The government goes first, followed by the defense, followed by the government's rebuttal. Id. 29.1. This is the last chance before the jury goes into deliberations for either side to score some last minute points. Typically, it will rehash the opening statement, reminding the jurors that everything that was promised in the opening statement has been shown, whether it is the government claiming that it showed evidence of guilt beyond a reasonable doubt, or whether it is the defense saying that the government failed to meet its burden.
Jury Verdict After the closing argument, it is time for the jury to deliberate on whether the defendant is guilty or not guilty. The verdict must be returned to the judge in open court, and it must be unanimous. FRCrP 31(a). If there are multiple defendants, the jury may return its verdict at any time during its deliberations as to any defendant about whom it has agreed. Id. 31(b)(1). If there are multiple counts, but the jury cannot agree on all counts, it can still return a verdict on the counts on which it has agreed. Id. 31(b)(2). If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts; the government can retry that defendant on those counts. Id 31(b)(3).
If the defendant is acquitted, he is free to go. If he is convicted, he will want to file a motion for a new trial, and then it is on to sentencing. After the defendant is sentenced, he will likely file an appeal.
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