FEDERAL RULES OF CRIMINAL PROCEDURE

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007
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TITLE VI Trial (Fed. Rules Crim. Proc. 23-31)

        Rule 23    Jury or Nonjury Trial
        Rule 24    Trial Jurors
        Rule 25    Judge's Disability
        Rule 26    Taking Testimony
        Rule 26.1 Foreign Law Determination
        Rule 26.2 Producing a Witness’s Statement
        Rule 26.3 Mistrial
        Rule 27    Proving an Official Record
        Rule 28    Interpreters
        Rule 29    Motion For a Judgment of Acquittal
        Rule 29.1 Closing Argument
        Rule 30    Jury Instructions
        Rule 31    Jury Verdict

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 23 Jury or Nonjury Trial

(a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless:

(1) the defendant waives a jury trial in writing;
(2) the government consents; and
(3) the court approves.

(b) Jury Size.

(1) In General. A jury consists of 12 persons unless this rule provides otherwise.
(2) Stipulation for a Smaller Jury. At any time before the verdict, the parties may, with the court’s approval, stipulate in writing that:

(A) the jury may consist of fewer than 12 persons; or
(B) a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins.

(3) Court Order for a Jury of 11. After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror.

(c) Nonjury Trial. In a case tried without a jury, the court must find the defendant guilty or not guilty. If a party requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion.

History:

(As amended Feb. 28, 1966, eff. July 1, 1966; July 30, 1977, P.L. 95-78, § 2(b), 91 Stat. 320eff. Oct. 1, 1977; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 2002, eff. Dec. 1, 2002.)

RELATED FORECITE National™ MATERIALS:

See FORECITE National™ 300.10.1 [Constitutional Claims: Trial By Jury -- General Principles].

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 23 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

In current Rule 23(b), the term "just cause" has been replaced with the more familiar term "good cause," that appears in other rules. No change in substance is intended.

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 24 Trial Jurors

(a) Examination.

(1) In General. The court may examine prospective jurors or may permit the attorneys for the parties to do so.

(2) Court Examination. If the court examines the jurors, it must permit the attorneys for the parties to:

(A) ask further questions that the court considers proper; or

(B) submit further questions that the court may ask if it considers them proper.

(b) Peremptory Challenges. Each side is entitled to the number of peremptory challenges to prospective jurors specified below. The court may allow additional peremptory challenges to multiple defendants, and may allow the defendants to exercise those challenges separately or jointly.

(1) Capital Case. Each side has 20 peremptory challenges when the government seeks the death penalty.

(2) Other Felony Case. The government has 6 peremptory challenges and the defendant or defendants jointly have 10 peremptory challenges when the defendant is charged with a crime punishable by imprisonment of more than one year.

(3) Misdemeanor Case. Each side has peremptory challenges when the defendant is charged with a crime punishable by fine, imprisonment of one year or less, or both.

(c) Alternate Jurors.

(1) In General. The court may impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.

(2) Procedure.

(A) Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.

(B) Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.

(3) Retaining Alternate Jurors. The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.

(4) Peremptory Challenges. Each side is entitled to the number of additional peremptory challenges to prospective alternate jurors specified below. These additional challenges may be used only to remove alternate jurors.

(A) One or Two Alternates. One additional peremptory challenge is permitted when one or two alternates are impaneled.

(B) Three or Four Alternates. Two additional peremptory challenges are permitted when three or four alternates are impaneled.

(C) Five or Six Alternates. Three additional peremptory challenges are permitted when five or six alternates are impaneled.

History:

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 29, 2002, eff. Dec. 1, 2002.)

RELATED FORECITE National™ MATERIALS:

See FORECITE National™ Chapter 10: Jury Selection, Voir Dire And Impanelment.

See also FORECITE National™ 17.4.7 [Juror Anonymity: Request For More Extensive Voir Dire].

See also FORECITE National™ 17.7.2 [Right To Public Trial: Voir Dire].

See also FORECITE National™ 18.3.7 [Reference To Defendant's Testimonial Rights During Voir Dire As Prejudicial Error].

See also FORECITE National™ 31.1.5 [Eyewitness Identification: Educating Jurors During Voir Dire].

See also FORECITE National™ 92.1.17 [Voir Dire/Jury Not To Consider Penalty: Whether Jury Should Be InformedThat Noncapital Murder Case Does Not Involve The Death Penalty].

See also FORECITE National™ 95.2.2 [Perjury: Concealment On Voir Dire As Perjury].

See also FORECITE National™ 279.10 [Voir Dire/Jury Not To Consider Penalty: Whether Jury Should Be Informed].

See also FORECITE National™ Chapter 282: Alternate Jurors.

See also FORECITE National™ 283.8 [Alternate Jurors Should Not Be Present For Proceedings In Response To Juror Inquiries During Deliberations].

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 24 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below.

In restyling Rule 24(a), the Committee deleted the language that authorized the defendant to conduct voir dire of prospective jurors. The Committee believed that the current language was potentially ambiguous and could lead one incorrectly to conclude that a defendant, represented by counsel, could personally conduct voir dire or additional voir dire. The Committee believed that the intent of the current provision was to permit a defendant to participate personally in voir dire only if the defendant was acting pro se. Amended Rule 24(a) refers only to attorneys for the parties, i.e., the defense counsel and the attorney for the government, with the understanding that if the defendant is not represented by counsel, the court may still, in its discretion, permit the defendant to participate in voir dire. In summary, the Committee intends no change in practice.

Finally, the rule authorizes the court in multi-defendant cases to grant additional peremptory challenges to the defendants. If the court does so, the prosecution may request additional challenges in a multi-defendant case, not to exceed the total number available to the defendants jointly. The court, however, is not required to equalize the number of challenges where additional challenges are granted to the defendant.

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 25 Judge's Disability

(a) During Trial. Any judge regularly sitting in or assigned to the court may complete a jury trial if:

(1) the judge before whom the trial began cannot proceed because of death, sickness, or other disability; and

(2) the judge completing the trial certifies familiarity with the trial record.

(b) After a Verdict or Finding of Guilty.

(1) In General. After a verdict or finding of guilty, any judge regularly sitting in or assigned to a court may complete the court’s duties if the judge who presided at trial cannot perform those duties because of absence, death, sickness, or other disability.

(2) Granting a New Trial. The successor judge may grant a new trial if satisfied that:

(A) a judge other than the one who presided at the trial cannot perform the post-trial duties; or

(B) a new trial is necessary for some other reason.

History:

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.)

RELATED FORECITE National™ MATERIALS:

See FORECITE National™ 16.14 [Conduct Of Judge].

See also FORECITE National™ 25.4.10 [Presence Of Judge At Jury View].

See also FORECITE National™ 284.1.4 [Readback Of Testimony: Presence Of Judge].

See also FORECITE National™ 300.24 [Right To Presence Of Trial Judge].

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 25 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

Rule 25(b)(2) addresses the possibility of a new trial when a judge determines that no other judge could perform post-trial duties or when the judge determines that there is some other reason for doing so. The current rule indicates that those reasons must be "appropriate." The Committee, however, believed that a better term would be "necessary," because that term includes notions of manifest necessity. No change in meaning or practice is intended.

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 26 Taking Testimony

In every trial the testimony of witnesses must be taken in open court, unless otherwise provided by a statute or by rules adopted under 28 USC 2072–2077.

History:

(As amended Nov. 20, 1972, Jan. 2, 1975, P.L. 93-595, § 3, 88 Stat. 1959, eff. July 1, 1975; Apr. 29, 2002, eff. Dec. 1, 2002.)

RELATED FORECITE National™ MATERIALS:

See FORECITE National™ 10.1.8 [Jury Selection: Right To Public Trial].

See also FORECITE National™ 17.7 [Public Trial Issues].

See also FORECITE National™ 276.4.3 [Recordings: Replaying Should Be Done In Open Court].

See also FORECITE National™ 284.1.5 [Readback: Should Be Conducted In Open Court And In The Presence Of Counsel And Defendant].

See also FORECITE National™ 285.1.2 [Giving Supplemental Instructions In Open Court: Strategic Consideration Of Whether Jury Should See Defendant And His Family Again].

See also FORECITE National™ 300.25 [Right To Public Trial].

See also FORECITE National™ 305.16.13 [Public Trial].

See also FORECITE National™ Constitutional Macro 309.9.1 [Public Trial].

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 26 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below.

Rule 26 is amended, by deleting the word "orally," to accommodate witnesses who are not able to present oral testimony in open court and may need, for example, a sign language interpreter. The change conforms the rule, in that respect, to Federal Rule of Civil Procedure 43.

REPORTER’S NOTES - 2002 REVISIONS

In publishing the "style" changes to the Federal Rules of Criminal Procedure, the Committee decided to publish separately any rule that includes what it considered at least one major substantive change. The purpose for this separate publication is to highlight for the bench and the bar any proposed amendments that the Committee believes will result in significant changes in current practice. Rule 26 was one of those rules. This proposed revision of Rule 26 includes only style changes. Another version of Rule 26, which includes an amendment that would authorize a court to receive testimony from a remote location, is presented in the "substantive" package. [On April 29, 2002, the Supreme Court did not approve the version of the rule contained in the "substantive" package.]

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 26.1 Foreign Law Determination

A party intending to raise an issue of foreign law must provide the court and all parties with reasonable written notice. Issues of foreign law are questions of law, but in deciding such issues a court may consider any relevant material or source—including testimony—without regard to the Federal Rules of Evidence.

History:

(As added Feb. 28, 1966, eff. July 1, 1966; amended Nov. 20, 1972, Jan. 2, 1975, P.L. 93-595, § 3, 88 Stat. 1949eff. July 1, 1975; Apr. 29, 2002, eff. Dec. 1, 2002.)

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 26.1 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 26.2 Producing a Witness’s Statement

(a) Motion to Produce. After a witness other than the defendant has testified on direct examination, the court, on motion of a
party who did not call the witness, must order an attorney for the government or the defendant and the defendant’s attorney to
produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness’s testimony.

(b) Producing the Entire Statement. If the entire statement relates to the subject matter of the witness’s testimony, the court
must order that the statement be delivered to the moving party.

(c) Producing a Redacted Statement. If the party who called the witness claims that the statement contains information that is privileged or does not relate to the subject matter of the witness’s testimony, the court must inspect the statement in camera. After excising any privileged or unrelated portions, the court must order delivery of the redacted statement to the moving party. If the defendant objects to an excision, the court must preserve the entire statement with the excised portion indicated, under seal, as part of the record.

(d) Recess to Examine a Statement. The court may recess the proceedings to allow time for a party to examine the statement and prepare for its use.

(e) Sanction for Failure to Produce or Deliver a Statement. If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness’s testimony from the record. If an attorney for the government disobeys the order, the court must declare a mistrial if justice so requires.

(f) "Statement" Defined. As used in this rule, a witness’s ‘‘statement’’ means:

(1) a written statement that the witness makes and signs, or otherwise adopts or approves;
(2) a substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording; or (3) the witness’s statement to a grand jury, however taken or recorded, or a transcription of such a statement.

(g) Scope. This rule applies at trial, at a suppression hearing under Rule 12, and to the extent specified in the following rules:

(1) Rule 5.1(h) (preliminary hearing);
(2) Rule 32(i)(2) (sentencing);
(3) Rule 32.1(e) (hearing to revoke or modify probation or supervised release);
(4) Rule 46(j) (detention hearing); and
(5) Rule 8 of the Rules Governing Proceedings under 28 USC 2255.

History:

(As added Apr. 30, 1979, Amended July 31, 1979, P.L. 96-42, § 1(1), 93 Stat. 326 eff. Dec. 1, 1980; amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)

RELATED FORECITE National™ MATERIALS:

See FORECITE National™ 27.5 [Witness Credibility: Out-Of-Court Statements].

See also FORECITE National™ 36.1.9 [Failure To Produce Document Or Other Tangible Evidence At Trial].

See also FORECITE National™ 305.6.2 [Failure To Produce Evidence/Missing Witness].

See also FORECITE National™ 305.16.11 [Production Of All Available Evidence, Destruction Of Evidence, Missing Evidence].

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 26.2 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below.

Current Rule 26.2(c) states that if the court withholds a portion of a statement, over the defendant’s objection, "the attorney for the government" must preserve the statement. The Committee believed that the better rule would be for the court to simply seal the entire statement as a part of the record, in the event that there is an appeal.

Also, the terminology in Rule 26.2(c) has been changed. The rule now speaks in terms of a "redacted" statement instead of an "excised" statement. No change in practice is intended.

Finally, the list of proceedings in Rule 26.2(g) has been placed in rule-number order.

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 26.3 Mistrial

Before ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives.

History:

(As added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 29, 2002, eff. Dec. 1, 2002.)

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 26.3 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 27 Proving an Official Record

A party may prove an official record, an entry in such a record, or the lack of a record or entry in the same manner as in a civil action.

History:

(As amended Apr. 29, 2002, eff. Dec, 1, 2002.)

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 27 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 28 Interpreters

The court may select, appoint, and set the reasonable compensation for an interpreter. The compensation must be paid from funds provided by law or by the government, as the court may direct.

History:

(As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972; Jan. 2, 1975, P.L. 93-595, § 3, 88 Stat. 1949, eff. July 1, 1975; Apr. 29, 2002, eff. Dec. 1, 2002.)

RELATED FORECITE National™ MATERIALS:

See FORECITE National™ 16.16 [Interpreters].

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 28 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 29 Motion for a Judgment of Acquittal

(a) Before Submission to the Jury. After the government closes its evidence or after the close of all the evidence, the court on the defendant’s motion 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. If the court denies a motion for a judgment of acquittal at the close of the government’s evidence, the defendant may offer evidence without having reserved the right to do so.

(b) Reserving Decision. The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.

(c) After Jury Verdict or Discharge.

(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 7 days after a guilty verdict or after the court discharges the jury, whichever is later.
(2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal.
(3) No Prior Motion Required. A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge.

(d) Conditional Ruling on a Motion for a New Trial.

(1) Motion for a New Trial. If the court enters a judgment of acquittal after a guilty verdict, the court must also conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed. The court must specify the reasons for that determination.
(2) Finality. The court’s order conditionally granting a motion for a new trial does not affect the finality of the judgment of acquittal.
(3) Appeal.

(A) Grant of a Motion for a New Trial. If the court conditionally grants a motion for a new trial and an appellate court later reverses the judgment of acquittal, the trial court must proceed with the new trial unless the appellate court orders otherwise.
(B) Denial of a Motion for a New Trial. If the court conditionally denies a motion for a new trial, an appellee may assert that the denial was erroneous. If the appellate court later reverses the judgment of acquittal, the trial court must proceed as the appellate court directs.

History:

(As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 10, 1986, P.L. 99-646, § 54(a), 100 Stat. 3607 eff. Dec. 10, 1986; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 29, 2002, eff. Dec. 1, 2002; Dec. 1, 2005.)

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 29 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below.

In Rule 29(a), the first sentence abolishing "directed verdicts" has been deleted because it is unnecessary. The rule continues to recognize that a judge may sua sponte enter a judgment of acquittal.

Rule 29(c)(1) addresses the issue of the timing of a motion for judgment of acquittal. The amended rule now includes language that the motion must be made within 7 days after a guilty verdict or after the judge discharges the jury, whichever occurs later. That change reflects the fact that in a capital case or in a case involving criminal forfeiture, for example, the jury may not be discharged until it has completed its sentencing duties. The court may still set another time for the defendant to make or renew the motion, if it does so within the 7-day period.

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 29.1 Closing Argument

Closing arguments proceed in the following order:

(a) the government argues;

(b) the defense argues; and

(c) the government rebuts.

History:

(As added Apr. 22, 1974, July 31, 1975, P.L. 94-64, § 2, 89 Stat. 370, eff. Dec. 1, 1975; amended Apr. 29, 2002, eff. Dec. 1, 2002.)

RELATED FORECITE National™ MATERIALS:

See FORECITE National™ 1.2.7 [Instruction Preparation Helps With Argument Or Summation To The Jury].

See also FORECITE National™ 4.2.1.2 [Right To Object To Instructions Before Closing Argument].

See also FORECITE National™ 16.8.2.10 [Juror Notetaking On Counsel’s Summations Or Arguments To The Jury].

See also FORECITE National™ 24.3.2.3 [Jury Not To Consider Any Portion Of Counsel's Opening Statement Or Closing Argument Which Was Stricken].

See also FORECITE National™ 31.1.8 [Eyewitness Identification: Closing Argument].

See also FORECITE National™ Chapter 272: Summation/Closing Argument To Jury.

See also FORECITE National™ 285.1.8 [Right To Additional Summation Or Argument To The Jury After Supplemental Instructions].

See also FORECITE National™ 297.2.8 [Prejudice On Appeal: Defense Counsel Forced To Make Closing Argument Without Support Of Instruction].

See also FORECITE National™ 300.1.13 [Summation/Closing Argument: Guaranteed By Constitutional Rights To Counsel, Due Process, Trial By Jury].

See also FORECITE National™ 300.19.1 [Summation/Closing Argument: Constitutional Underpinnings].

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 29.1 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 30 Jury Instructions

(a) In General. Any party may request in writing that the court instruct the jury on the law as specified in the request. The request must be made at the close of the evidence or at any earlier time that the court reasonably sets. When the request is made, the requesting party must furnish a copy to every other party.

(b) Ruling on a Request. The court must inform the parties before closing arguments how it intends to rule on the requested instructions.

(c) Time for Giving Instructions. The court may instruct the jury before or after the arguments are completed, or at both times.

(d) Objections to Instructions. A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate. An opportunity must be given to object out of the jury’s hearing and, on request, out of the jury’s presence. Failure to object in accordance with this rule precludes appellate review, except as permitted under Rule 52(b).

History:

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Apr. 29, 2002, eff. Dec. 1, 2002.)

RELATED FORECITE National™ MATERIALS:

See FORECITE National™ Volume 2: Pre-Trial Issues and Instructions (Chapters 10-15).

See also FORECITE National™ 2.3.1.5 [Duty Of Court To Advise Counsel Before Argument As To Which Instructions Will Be Given].

See also FORECITE National™ Volume 3: Trial Procedure--Issues And Instructions (Chapters 16-23).

See also FORECITE National™ Volume 4: Evidence--Issues And Instructions (Chapters 24-42).

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 30 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below.

Rule 30(d) has been changed to clarify what, if anything, counsel must do to preserve a claim of error regarding an instruction or failure to instruct. The rule retains the requirement of a contemporaneous and specific objection (before the jury retires to deliberate). As the Supreme Court recognized in Jones v. United States, 527 U.S. 373, 388 (1999), read literally, current Rule 30 could be construed to bar any appellate review when in fact a court may conduct a limited review under a plain error standard. The topic of plain error is not addressed in Rule 30 because it is already covered in Rule 52. No change in practice is intended by the amendment.

REPORTER’S NOTES - 2002 REVISIONS

In publishing the "style" changes to the Federal Rules of Criminal Procedure, the Committee decided to publish separately any rule that includes what it considered at least one major substantive change. The purpose for this separate publication is to highlight for the bench and the bar any proposed amendments that the Committee believes will result in significant changes in current practice. Rule 30 was one of those rules. This proposed revision of Rule 30 includes only proposed style changes. Another version of Rule 30 includes a substantive amendment that would authorize a court to require the parties to file requests for instructions before trial. That version of Rule 30 is presented in the "substantive" package. [On April 29, 2002, the Supreme Court approved the version of the rule contained in the "substantive" package.]

FEDERAL RULES OF CRIMINAL PROCEDURE - 2007

Rule 31 Jury Verdict

(a) Return. The jury must return its verdict to a judge in open court. The verdict must be unanimous.

(b) Partial Verdicts, Mistrial, and Retrial.

(1) Multiple Defendants. If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed.
(2) Multiple Counts. If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed.
(3) Mistrial and Retrial. If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. The government may retry any defendant on any count on which the jury could not agree.

(c) Lesser Offense or Attempt. A defendant may be found guilty of any of the following:

(1) an offense necessarily included in the offense charged;
(2) an attempt to commit the offense charged; or
(3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right.

(d) Jury Poll. After a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its
own, poll the jurors individually. If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury.

History:

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1, 2002.)

RELATED FORECITE National™ MATERIALS:

See FORECITE National™ 4.1.2 [Specific Ground For Objection Must Be Stated].

See also FORECITE National™ 16.2.1.5 [Duty Not To Form Premature Opinion Applies To Subsidiary Facts As Well As To Ultimate Verdict].

See also FORECITE National™ 19.1.7 [Multiple Defendants: Verdict As To One Defendant Should Not "Influence" Verdict As To Other Defendant; Use Of Term "Control" Not Sufficient].

See also FORECITE National™ 19.3.20 [Propriety Of Partial Verdict Instruction: Multiple Defendants].

See also FORECITE National™ 115.3 [Sentence Enhancements: Special Verdicts].

See also FORECITE National™ 253.4.1.5 [Self Defense: Not Guilty Verdict As To Greater Offense Precludes Conviction Of Lesser].

See also FORECITE National™ 256.4.10 [Insanity: Instruction As To Consequences Of Insanity Verdict When Witness Or Prosecution Opens The Door].

See also FORECITE National™ 265.7.1 [Lesser Included Offense: Deliberation And Verdict -- General Principles].

See also FORECITE National™ 273.11 [Jury Unanimity: Use Of Special Verdict Forms].

See also FORECITE National™ 275.1.4 [Not Guilty Verdict As To Greater Offenses Based On Self Defense Precludes Conviction of Lesser Included Offense].

See also FORECITE National™ 275.2.1 [Lesser Included Offenses: Partial Verdict].

See also FORECITE National™ 275.3.1 [Order Of Deliberation May Influence Verdict].

See also FORECITE National™ 275.4.5 [Acquittal First: Encouragement Of "False Unanimity" And "Coerced Verdicts"].

See also FORECITE National™ 276.1.3 [Deliberations: Explanation Of "Not Guilty" Verdict].

See also FORECITE National™ 276.2.1 [Secrecy Of Deliberations: Jury Never Required To Explain Verdict To Anyone].

See also FORECITE National™ 276.7.6 [Multiple Defendants: Verdict As To One Defendant Should Not "Influence" Verdict As To Other Defendant; Use Of Term "Control" Not Sufficient].

See also FORECITE National™ 276.8.2 [Multiple Counts: Special Instructions].

See also FORECITE National™ 278.1 [Duty Of Jury To Deliberate Before Returning Verdict].

See also FORECITE National™ 279.5 [Jury Not To Consider Consequences Of Verdict: Strategic Consideration].

See also FORECITE National™ 279.6 [Instruction On Consequences Of Verdict Not Unconstitutional].

See also FORECITE National™ 279.11 [ Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict: Federal Circuit Model Instructions And Notes].

See also FORECITE National™ 282.2.2 [Substitution Of Alternate Juror After Partial Verdict].

See also FORECITE National™ 282.2.4 [Discharge Of Alternate: Admonition Against Discussing Case Or Revealing Opinion Before Return Of Verdict].

See also FORECITE National™ 286.1.7 [Judge's Post-Deadlock Comment On The Evidence May Coerce Verdict].

See also FORECITE National™ 286.1.12 [Deadlock: Inquiry Into Numerical Division Of Jury May Coerce Verdict].

See also FORECITE National™ 286.2.3 [Deadlock: Instructions Should Inform Jury That A Verdict Need Not Be Reached].

See also FORECITE National™ 286.2.4 [Deadlock: Juror Should Not Change Mind Just To Reach Verdict].

See also FORECITE National™ Chapter 287: Verdict.

See also FORECITE National™ 288.1 [Judge Must Not Commend Or Criticize Jurors For Their Verdict].

See also FORECITE National™ 296.2.3.4 [Standard Of Prejudice On Appeal: Instruction Which Directs Verdict Against The Defendant].

See also FORECITE National™ 297.2.14 [Prejudice On Appeal: Prompt Return Of Verdict: After Jury Hears Erroneous Instruction].

See also FORECITE National™ 297.2.15 [Prejudice On Appeal: Quick Verdict After Jury Hears Erroneous Or Incomplete Charge].

See also FORECITE National™ 297.2.16 [Prejudice On Appeal: Return Of Verdict By Previously Deadlocked Jury].

See also FORECITE National™ 297.4.8 [Juror Deadlock Before Reaching Verdict As Indicia Of Close Case].

See also FORECITE National™ 297.4.9 [Verdict Reflecting Jury's Selective Belief Of Defense Evidence And Refusal To Convict On All Counts As Indicia Of Close Case].

See also FORECITE National™ 297.6.1 [Challenging Inconsistent Verdicts On Appeal].

See also FORECITE National™ 300.4.2 [Constitutional Claims: Failure To Instruct Or Directed Verdict On Element Of Charge].

See also FORECITE National™ 300.4.3 [Constitutional Claims: Withdrawal Of Factual Issue May Constitute A Directed Verdict].

See also FORECITE National™ 301.5.5 [Death Penalty: Life Verdict Permissible Even If Aggravating Factor Is Found].

See also FORECITE National™ 303.3.7 [Death Penalty: Jury May Return Verdict Of Life Even If Aggravation Outweighs Mitigation].

See also FORECITE National™ 303.3.9 [Death Penalty: Jury Does Not Have Duty To Reach A Verdict].

See also FORECITE National™ 303.3.15 [Death Penalty: Improper To Require Rejection Of Death Before Consideration Of Life Verdict].

See also FORECITE National™ 303.4.2 [Death Penalty: Single Mitigating Circumstance Sufficient For Life Verdict].

See also FORECITE National™ 303.15.1 [Death Penalty: Consequences Of Failure To Agree At Penalty: Jury Should Be Informed That Guilt Phase Verdicts Will Not Be Affected].

See also FORECITE National™ 305.1.11 [Alternative Offenses/Verdicts].

See also FORECITE National™ 305.9.2 [Inconsistent Verdicts].

See also FORECITE National™ 305.13.13 [Multiple Verdicts].

See also FORECITE National™ 305.19.6 [Special Verdicts].

See also FORECITE National™ 305.22.3 [Verdict].

COMMITTEE NOTE - 2002 REVISIONS

The language of Rule 31 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

Rule 31(b) has been amended to clarify that a jury may return partial verdicts, either as to multiple defendants or multiple counts, or both. See, e.g., United States v. Cunningham, 145 F.3d 1385, 1388-90 (D.C. Cir. 1998) (partial verdicts on multiple defendants and counts). No change in practice is intended.