BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
Go to Federal Manuals Table of Contents - Go to Benchbook Table of Contents

Section 2 - Plea Taking/Criminal Trial

    2.03 Trial Outline (Criminal)

        2.03.1 Trial Outline (Criminal): Outline
        2.03.2 Trial Outline (Criminal): Other Sources

1. Have the case called for trial. [FOOTNOTE 1]

4. Ascertain whether any party wishes to invoke the rule to exclude from the courtroom witnesses scheduled to testify in the case. [But see 18 USC 3510, stating that victims of the offense may not be excluded from trial merely because they may speak at the sentencing hearing. See also 18 USC 3771(a)(3) and (b), giving any victim of the offense the right to attend "any public court proceeding . . . involving the crime" unless the court finds that "testimony by the victim would be materially altered if the victim heard other testimony at that proceeding." The court "shall make every effort to permit the fullest attendance possible by the victim." [FOOTNOTE 2]

5. Government counsel makes an opening statement.

7. Government counsel calls witnesses. [Note: If there may be testimony by child victims or child witnesses, judges should be aware of the special procedures and safeguards in 18 USC 3509 that may apply.]

8. Government rests.

9. Motion for judgment of acquittal. FRCP 29(a) (see infra section 2.10: Trial and post-trial motions).

10. Defense counsel makes an opening statement if he or she has asked to reserve.

11. Defense counsel calls witnesses for the defense.

12. Defense rests.

13. Counsel call rebuttal witnesses.

14. Government rests on its entire case.

15. Defense rests on its entire case.

16. Motion for judgment of acquittal. FRCP 29(a), (b) (see infra section 2.10: Trial and post-trial motions).

17. Out of hearing of the jury, rule on counsel’s requests for instructions and inform counsel as to the substance of the court’s charge. FRCP 30(b).

18. Closing argument by prosecution, closing argument by defense, rebuttal by prosecution. FRCP 29.1.

19. Charge the jury (see infra section 2.08: General instructions to jury at end of criminal case). In the court’s discretion, the jury may be instructed before closing arguments. FRCP 30(c).

20. Rule on objections to the charge and make any appropriate additional charge. Provide an opportunity for counsel to object out of the jury’s hearing and, on request, out of the jury’s presence. FRCP 30(d).

21. If you are going to discharge the alternate jurors, excuse and thank them.  [FOOTNOTE 3] If you plan to retain the alternate jurors, ensure that they do not discuss the case with any other person unless they replace a regular juror. If an alternate juror replaces a juror after deliberations have begun, instruct the jury to begin its deliberations anew. FRCP 24(c)(3).

22. Instruct the jury to go to the jury room and commence its deliberations.

23. Determine which exhibits are to be sent to the jury room.

24. Have the clerk give the exhibits and the verdict forms to the jury.

25. Recess court during the jury deliberations.

26. Before responding to any communications from the jury, consult with counsel on the record (see infra section 2.08: General instructions to jury at end of criminal case).

27. If the jury fails to arrive at a verdict before the conclusion of the first day’s deliberations, either provide for their overnight sequestration or permit them to separate after instructing them as to their conduct and fixing the time for their return to resume deliberations. Provide for safekeeping of exhibits.

28. If the jury reports that they cannot agree on a verdict, determine by questioning whether they are hopelessly deadlocked. Do not inquire as to the numerical split of the jury. If you are convinced that the jury is hopelessly deadlocked, declare a mistrial. If you are not so convinced, direct them to resume their deliberations. Consider giving your circuit’s approved Allen-type charge to the jury before declaring a mistrial.

29. When the jury has agreed on a verdict, reconvene court and take the verdict (see infra section 2.09: Verdict—criminal).

30. Poll the jurors individually on the request of either party (see infra section 2.09: Verdict—criminal). FRCP 31(d).

31. Thank and discharge the jury.

32. If the verdict is "not guilty," discharge the defendant.

33. If the defendant has been found guilty, determine whether the defendant should be committed to the custody of the U.S. marshal or released on bail (see infra section 2.11: Release or detention pending sentence or appeal).

34. Fix a time for post-trial motions.

35. Adjourn or recess court.

FOOTNOTES:

Footnote 1:    FRCP 43 prohibits trial in absentia of a defendant who is not present at the beginning of trial. Crosby v. United States, 506 U.S. 255 (1993).

Footnote 2:     Note also that FR 615 does not authorize the exclusion of “a person authorized by statute to be present.”

Footnote 3:    In a case involving potentially lengthy jury deliberations, judges may wish to consider retaining at least one alternate juror.