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The Nine Stages of a Federal Criminal Trial

A federal criminal trial will look very much like a state criminal trial. A federal criminal trial will begin once the case is called, the parties indicate they are ready to proceed, and the potential jurors are brought into the courtroom.

Stage One - Jury Selection

Jury selection is one of the most important parts of a federal criminal trial. Many volumes have been written providing advice regarding how to handle this part of the trial. One of the favorite authors of the federal criminal defense attorneys is Professor Sunwolf. Dr. Sunwolf started her formal education with a degree in psychology.

After graduating from law school, Dr. Sunwolf tried federal criminal cases, but eventually left the practice of law to obtain her PhD in communications. Since this time, she has written many books on jury persuasion. These books combine the science of psychology and other social science with the science of peer group dynamics.

The federal criminal defense lawyers at the Barone Defense Firm have found these books to be a compelling addition to their jury selection toolbox. The process of jury selection in a federal criminal case is detailed elsewhere on this website.

Stage Two - Opening Statement

After the jury has been empaneled and sworn, the federal district court judge will invite the AUSA to give their opening statement. Like the jury selection, the opening statement is a critical part of a federal criminal trial. In fact, Gerry Spence, one of most successful federal criminal defense attorneys of all time, has said that a case is mostly won with a good jury selection and opening statement.

The purpose of the opening statement is to allow the parties to explain to the jury what the case is about. While the parties may discuss the evidence, and explain what they believe it will show, they are not allowed to make arguments about what they think the evidence means.

After the AUSA has given their opening statement, which they are required to do because they have the burden of proof, the federal district court judge will ask the defense attorney if they wish to give an opening statement. The judge asks this in the form of a question because the defense attorney is not required to give an opening statement.

In a criminal case, the federal criminal defense lawyer may either give an opening statement, waive the opening statement, or waive the opening statement at that time, instead giving their opening statement at the close of the AUSA's case. If there is more than one defendant being tried at the same time, each defense attorney will have the opportunity to give an opening statement. If the defense attorney does give an opening statement, the AUSA will not be afforded an opportunity to respond. Instead, the court will move to the next phase of the federal criminal trial.

Stage Three - Direct Examination Begins with the AUSA Calling Their First Witness and Providing Other Evidence to the Jury.

Like all criminal cases, in a federal criminal trial, the entire burden of proof is on the AUSA. In thinking how to proceed, an AUSA will consider all elements of the crimes alleged. This is because every crime is made up of parts, or elements. The elements are set forth in the instructions to the jury. To prevail, the AUSA must prove each and every element of the crime. Consequently, the AUSA will call witnesses that have information they believe will help persuade the jury that an element has been satisfied.

For example, venue is an element of virtually every federal criminal case. Therefore, the AUSA will call one or more witnesses establishing where the alleged criminal activity took place. Besides witness testimony, the AUSA may also submit documents and things for the jury's consideration. In a child pornography case, the AUSA may submit a report prepared by the forensic expert who assisted in investigating the case and who examined things like the defendant's computers, external hard drives, and telephones.

Because this is direct examination, the AUSA may only ask open ended questions. This is often as simple as, "what happened next?" A question used for direct examination may not suggest an answer. Therefore, it would not be appropriate for the AUSA to tell the witness what they think happened, and then ask the witness to agree. Thus, the AUSA cannot properly say "and the next thing that happened was….do you agree?" This leading question would constitute cross-examination. The party who called the witness may not "lead" the witness and may only ask direct examination questions. Such a leading question would likely prompt the objection of the federal criminal defense lawyer.

There are some exceptions to this rule, however, and some leading questions are allowed during direct examination. For example, Rule 611 of the Federal Rules of Evidence suggests that an AUSA may use cross-examination as necessary to "develop the witnesses testimony." Leading questions may also be used with a "hostile witness."

Stage Four - Cross-Examination of the Government's Witnesses

The federal criminal defense attorney may ask questions of the government's witness after the AUSA has completed their direct examination. Again, the defense attorney is not required to ask questions because they have no burden of proof. While there may be strategic reasons for waiving a witness, in most instances, the federal criminal defense attorney will engage in extensive and detailed questioning or cross-examination of every government witness.

The defense attorney's questioning can proceed by either direct or leading questions. A leading question is one that suggests the answer. This is called cross-examination. The purpose of cross-examination is to expand on the witness's testimony, and possibly to show that the witness lacks credibility or that their fact statements are wrong or misleading.

Cross-examination may also be used by your defense attorney to show the jury that the government witness lacks actual knowledge, or that their knowledge is limited. This is especially true for expert witnesses. To expand on the above example, a defense attorney may cross-examine a forensic computer expert by asking them questions to show that they lack credentials. A cross-examination like this might be a simple statement to the witness such as "you don't have a computer science degree?"

Cross-examination is a difficult but essential skill to master. The federal criminal defense attorneys at the Barone Defense Firm have read many books and attended many seminars to further hone their cross-examination skills. These skills are then (and have been) perfected through cross-examining government witnesses in the courtroom.

In addressing the importance of cross-examination, particularly as it pertains to expert testimony in a criminal case, former Supreme Court Justice Scalia indicated that evidence and witness testimony must be tested in the courtroom, not simply deemed reliable. Furthermore, Scalia said such "reliability" can really only be assessed in a particular manner: by testing it in the "crucible of cross-examination." In other words, Justice Scalia believed that cross-examination is an essential part of the trial process whereby jurors are called upon to decide factual disputes. One such dispute may pertain to the reliability of an expert's opinion.

Looking again at the Federal Rules of Evidence about cross-examination, Rule 611 provides that cross-examination should be limited in scope to issues of credibility and issues brought forth by the direct testimony of the witness. However, the court may allow the expansion of the cross-examination in additional matters, as if the opposing party had called the witness. The cross-examination thereby essentially becomes direct examination.

At the end of the government's case, when there are no more witnesses or evidence, the AUSA will tell the judge that they "rest." This means the AUSA's case is completed.

Stage Five - Motion for Directed Verdict

In a federal criminal case, a motion for directed verdict is a motion requesting the judge to acquit the defendant as a matter of law. If the motion is granted, the case is done, and the defendant is declared the winner. A motion for directed verdict is also called a judgment as a matter of law. These motions are covered by Rule 50 of the Federal Rules of Procedure.

While a motion for judgment as a matter of law may be made at any time before the case is submitted to the jury, the first opportunity for a federal criminal defense attorney to make such a motion is after the government has rested its case. In the attorney's motion, the federal criminal defense attorney will offer to the judge any applicable law and explain why, based on this law, the facts of the case entitle the defendant to be found not guilty. An AUSA may not make a motion for directed verdict after the defense has rested.

In a typical federal criminal trial, once the AUSA has indicated that the government has rested its case, the district court judge will instruct the bailiff to escort the jury out of the courtroom. The judge will then ask the defense attorney if they have a motion for directed verdict. If the answer is no, then the jury will be brought back into the courtroom and the case will continue. Motions for directed verdict are always made outside the presence of the jury.

A federal criminal defense attorney may also make a motion for directed verdict at the end of the attorney's case; meaning, after the defense has indicated to the court that they rest. This is because, as indicated, Rule 50 of the Federal Rules of Procedure allow a motion as a matter of law to be made any time before the jury has reached its verdict.

Stage Six - The Federal Criminal Defense Attorney's Witnesses and Evidence

The defendant in a criminal case enjoys a presumption of innocence. One of the benefits of this presumption is that a person accused of a crime does not have an obligation to prove their innocence to the jury. This means there is no obligation to call any witnesses or produce any evidence. However, depending on the facts and circumstances of a case, it may be in the defendant's best interest to call witness or provide evidence. So again, in a child pornography case, a defense attorney may retain a private computer expert to review the devices the government claims contain the prohibited content. This defense expert might then be called at trial to offer their opinion that the items were not actually contained on the defendant's devices, contrary to what the government's expert claimed.

When the federal criminal defense attorney calls witnesses, just as when the AUSA calls witnesses, the attorney may only ask this witness direct examination question, and the AUSA may cross-examine this witness using leading questions.

One of the witnesses that is available only to the defense attorney is the defendant. In a criminal case the accused has the right to remain silent. Therefore, only the defense attorney can call the accused to the stand. Whether to call the accused as a witness is often one of the most difficult questions for a federal criminal defense attorney. However, the final answer to this question resides completely with the accused. The decision must not be made by the lawyer.

Once the defense attorney calls the last witness, they will indicate to the court that "the defense rests."

Stage Seven - The Government's Rebuttal Witnesses

The defense may call rebuttal witnesses after it has rested because the government has the burden of proof. Rebuttal witnesses serve largely the same function as cross-examination in that they are used as part of an attempt, in this case by the government, to disprove evidence submitted by the defendant or to disprove what the defense witnesses said. It is rare, but possible, for the federal district court judge to allow what is called surrebuttal on the part of the defense. A surrebuttal witness is called by a party to respond to the opposing party's rebuttal.

Stage Eight - Closing Arguments

Once all the witnesses have been called, both the AUSA and federal defense criminal defense attorney have presented all their evidence, and both have indicated to the court that they have rested, the next step is closing argument. According to Federal Rules of Criminal Procedure, 29.1, the government goes first, the defendant goes next, then the government gets another opportunity to rebut what the defendant's attorney has argued. The government gets to go first, and last, because they have the burden of proof.

Unlike the opening statement, in their final arguments, the AUSA and the federal criminal defense attorney may not only summarize the evidence presented but may also forcefully argue why the jury should find in their favor.

The federal criminal defense attorneys at the Barone Defense Firm will often "reverse engineer" their case by drafting their closing argument before the trial has begun. This approach then brings into clarity how they will address all the above trial phases and creates a mental roadmap of how they will defend the case. It also allows them to practice their closing argument before the trial. Finally, district court judges will typically deny the litigants the time, at the end of the trial, to leave and prepare their closing arguments. Contrarily, it is typical to move right into closing arguments after all the evidence has been received by the jury, and any directed verdict motions made and denied.

Stage Nine - The Jury is Instructed as to the Applicable Law

The main purpose of a jury is to resolve issues of fact. A jury will reach its verdict by taking the law as provided to them by the judge and applying to this law to the facts as they find them. In this way they will arrive at their verdict. This law is set forth in the jury instructions.

Unlike in the State of Michigan, there are no standard pattern jury instructions at the Federal level. However, in the Eastern and Western Michigan Federal District Courts, most judges will rely on and give the pattern instructions prepared by the Sixth Circuit Committee on Pattern Criminal Jury Instructions. Nevertheless, the parties are free to provide "special" jury instructions. The parties can also suggest to the judge trying the federal criminal case that a different jury instruction better fits the case being litigated and more accurately advises the jury on the appliable law.

Stage Ten - Deliberations and Verdict

The final stage in a federal criminal trial will be jury deliberations and verdict. The first thing the jury will do is select, often by voting, who will be their foreperson. Pattern jury instruction for the 6th circuit provides that the foreperson's job is to do two things: (1) guide the jury's deliberations and (2) be a liaison for communications with the court.

If the jury has questions, then normally, the foreperson will write it down, give it to the court officer who then gives the question to the judge. The jury may not tell anyone outside the jury where their "vote" stands or anything else about their deliberations. There is, however, no rule that says that only the foreperson may write down questions or give them to the court officer. In this way all jurors are "equal".

In a criminal case the verdict must be unanimous in favor of acquittal or conviction. In a federal criminal case, a jury will be instructed they are to continue their deliberations until they have reached a unanimous decision. Patter Jury Instruction 8.03 provides that to find a defendant guilty in a federal criminal trial, the jury must unanimously agree that the government has overcome the presumption of innocence as to every element of the crime alleged and have done so with evidence that proves the defendant is guilty beyond a reasonable doubt.

As set forth in Pattern Jury Instruction 8.05, the jury will be told that they are not to consider punishment in their deliberations. Punishment is solely the province of the judge presiding over the case.

Once the jury has reached its verdict, Pattern Jury Instruction 8.06 provides that the foreperson mark the appropriate place for guilty or not guilty, have each member sign the form, then give it to the court officer, who will then give the form to the judge.

Upon learning that the jury has reached its verdict, the judge will resume the trial, making sure the defendant is in the courtroom. Finally, the verdict will be read in court.

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