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Federal Criminal Trial

A jury is selected after pretrial motions have been submitted and the discovery process is complete.  A criminal defendant has a Sixth Amendment right to a trail by jury. As stated in the Sixth Amendment of the U.S. Constitution, "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." According to the Federal Rules of Criminal Procedure, if a defendant has the right to a jury trail and does not waive that right, he must have jury trial. FRCrP. 23(a).  Unless a jury member is excused or it is otherwise instructed by the parties, a federal criminal trail will have 12 jurors. Id. 23(b).  The court, the prosecution, and the defense will examine, question, and select the members of the jury. Id. 24(a)(1) and 24(a)(2).

If a party uses one of their permitted peremptory challenges, that party can excuse a juror for no official reason, as long the race of the prospective juror is not the reason for the challenge. FRCrP 24. Each party has only a limited number of peremptory challenges. Id. 24(b). Each party is entitled to make 20 peremptory challenges in a death penalty case, but in the case of other felonies, the defense receives only 10 peremptory challenges and the government receives 6. Id. 24(b)(1) and 24(b)(2).  On the occasion that an alternate jury joins the jury, each party is allotted another peremptory challenge. Id. 24(c)(4).  In order to excuse a juror on the basis of cause, a party must make a persuasive argument. Each party can make a challenge based on cause any number of times.

In case any of the 12 jurors must be released from their position during the trail, 6 alternate jurors may be chosen. FRCrP 24(c)(1). These alternate jurors are chosen by the same procedure as the other jurors and are required to have the same qualifications.  The alternate jurors will replace the original jurors in the order that they were chosen. Id. 24(c)(2).

Opening Statements
The government always gives its opening statements first, presenting the jury with its perspective during a period of time apportioned by the judge. The government should not, however, use the opening statement as a time to present an argument, because arguments made in the opening statements are not evidence.

Next, the defense is permitted to present its opening statements; however, if the defense believes that the government does not have a strong case, it may make a strategic decision to save its openings statements until after the prosecution completes its case-in-chief. Otherwise, the defense will present its opening statements directly after the prosecution. There are a variety of methods the defense may employ during its opening statements. For example, its may argue that the facts of the case will prove the defendant’s innocence, or it may expand upon the prosecution’s previous statements. As an example of a federal criminal trial, one can look at the Enron case. While Ken Lay offered the jury a description of his childhood and his important role in the community, Jeffrey Skilling stated that the defendant did not commit a crime. 

Direct Examination
As in the case of the opening statement, the prosecution presents its case-in-chief first. In order for the jury to convict the defendant, the government must prove the defendant’s guilt beyond a reasonable doubt by presenting convincing evidence as proof. The defense will obtain testimony using direct examination, which is "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). Unless an exception is discovered, the Federal Rules of Evidence deem that "[e]very person is competent to be a witness.” FRE 602. Every witness must, however, have direct personal knowledge of everything to which he testifies, and the direct examiner must determine if this is in fact the case. Id. The witness, therefore, can only present testimony after giving an oath to testify honestly. Id. 603.

Unless a question is “necessary to develop the witness's testimony," a direct examiner cannot ask a witness a leading question. Id. 611(c). Leading questions are prohibited because they can restrict what the jury learns about the case, since the jury should be able to listen to the testimony of the witness, not the attorney. Leading questions may serve, however, to speed up the trial or help a witness remember an event. 3-RULE 611 Federal Rules of Evidence Manual § 611.02 (2005). During a cross-examination, the use of leading questions is crucial.

Cross Examination
Cross examinations, during which an attorney asks a witness primarily yes or no questions, are particularly important for the defense. The purpose of a cross examination is largely to elucidate a witness’ previous testimony. Consider, once again, the Enron case. During the Enron trial, a witness spoke of several news release drafts in which quarterly earnings were falsely inflated to 34 cents from 32 cents, because they “had a desire at Enron headquarters to beat (the expectations) by 2 cents” Mary Flood, Deception Kept Stock Up, Says Witness, Houston Chronicle, Feb. 2, 2006, accessible here. Assuming arguendo that the altered news release drafts were backed by data and there had been no discussion of this fact during the direct examination, the defense could lead the witness to acknowledge that changing the drafts was reasonable given the data. 

On occasion, a cross examination can serve to impeach a witness. By impeaching a witness, the attorney places the credibility of the witness’ testimony into question. Black's Law Dictionary 768 (8th ed. 2005). The Federal Rules of Evidence 607 states that either the defense or the prosecution can impeach a witness, and this may be done in several ways. First, if a witness has been convicted of a crime involving dishonest statements and was penalized with over a year’s incarceration for the crime, the witness may be impeached. Id. 609(a). This conviction, however, can seldom be presented as evidence if the it occurred over ten years before the testimony. Furthermore, the conviction can never be presented as evidence if it has been annulled, pardoned, or given a certificate of rehabilitation. Id. 609(b). Secondly, to impeach a witness, the examiner may also discredit his character, but he can only do so by questioning the individual’s propensity towards honesty, not by citing the witness’ reputation or using opinion. Id. 608(a). During a cross examination is the only time when examples of a witness’s tendency to be dishonest can be submitted as extrinsic evidence. Id. 608(b). An examiner cannot, however, exploit a witness’ religious beliefs as support that the individual is either trustworthy or not. Id. 610.  Additionally, statements previously made by a witness may give grounds for an impeachment. A statement made by a witness in the past that is inconsistent with his current testimony is admissible in court. Id. 613(b).  If a witness told authorities something that contradicts his testimony, his testimony may be challenged. 

On the rare occasion that a cross examination was exceptionally successful, a redirect examination may be permitted to re-establish the witness. Once the prosecution’s case-in-chief is complete, the defense may chose to begin its case-in chief or decide not to present a case-in-chief at all. The later strategy, though rare, may occur if the defense believes the government to have a very weak case. When a defense does conduct its case-in-chief, the procedure is the same as that followed during the prosecution’s case in chief, only the party giving direct examination or cross examination is reversed.

If the defense motions for an acquittal once both cases-in-chief are complete, the court will "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction[, and] the court may on its own consider whether the evidence is insufficient to sustain a conviction." FRCrP 29(a). The jury will decide on the motion for an acquittal if the court rejects it.

Jury Instructions
Either party can submit a written request asking that the jury be educated about the law. A party may submit such a request after all evidence has been introduced or during some time determined by the court.  FRCrP 30(a).  Additionally, if it provides the court with particular reasons, each party can also object to the manner in which the jury is instructed.  For instance, the defense could argue that the jury has not received instruction regarding crucial factors that are required for the defendant to be found guilty. Id. 30(d). The objection needs to be preserved for appeal purposes in all cases.

Closing Arguments
Once again, the prosecution is first in the presentation of closing arguments after the jury has received its instructions. Next, the defense presents its closing statement, and then the prosecution gives a rebuttal. Id. 29.1.  Closing statements give both parties the opportunity to make a final impression on the jury, to revisit their opening statements, and to explain how those statements have been proved though the course of the trial. The defense will contend that the prosecution was unable to prove the defendant’s guilt, while the prosecution will argue that the evidence points to the guilt of the defendant beyond a reasonable doubt. 

Jury Verdict
The jury will begin deliberation after the closing arguments are completed. After deliberation, they must give a unanimous verdict to the judge in open court.  FRCrP 31(a). In a case with more than one defendant, the jury can give their verdict on each defendant as soon they reach an agreement. Id. 31(b)(1). Additionally, the jury can return their verdict on each count that they have unanimously agreed upon, even if they do not concur on every count. In this case, a mistrial will be held in which the defendant is tried for those counts on which the jury could not concur.  Id. 31(b)(2). If a defendant is found guilty, he will later be sentenced and will probably file for an appeal. If he is found not guilty, however, he is free and his case is over.

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