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Benchbook US District Judges 6TH FJC MAR 2013 PDF
Benchbook US District Judges 6TH FJC MAR 2013 PDF
From the first edition in 1969 to this sixth edition more than forty years later,
the Federal Judicial Center’s Benchbook for U.S. District Court Judges has
provided a concise, practical guide to situations federal judges are likely to
encounter on the bench. Although the Benchbook is written primarily for dis-
trict and magistrate judges, bankruptcy judges also may find useful infor-
mation in many of the sections. The Benchbook covers procedures that are
required by statute, rule, or case law, and it offers detailed guidance from
experienced trial judges on these requirements and other matters that arise
in the courtroom. New judges in particular should benefit from the Bench-
book, but even experienced judges may find useful reminders about how to
deal with routine matters, suggestions for handling more complex issues, or
helpful starting points when they face particular situations for the first time.
This edition contains several significant additions, two of which come at
the request of committees of the Judicial Conference of the United States.
The Advisory Committee on Criminal Rules, then chaired by Judge Richard
C. Tallman (9th Cir.), requested that we add a section on prosecutors’ duty to
disclose favorable information to defendants under Brady v. Maryland, 373
U.S. 83 (1963). Working with Judge Reena Raggi (2d Cir.), Judge Tallman’s
successor as chair, the Benchbook Committee developed a primer on Brady
that addresses such issues as the basic duty to disclose exculpatory infor-
mation, the elements of a Brady violation, and the timing of disclosures. New
section 5.06 includes an extensive discussion of later Supreme Court and
appellate case law interpreting and applying Brady; links to the Department
of Justice’s disclosure policies and the Center’s report to the Advisory Com-
mittee in 2011 on Brady and Federal Rule of Criminal Procedure 16; and a list
of sample cases in which disclosure of Brady material was required.
The Benchbook also has a new section on civil pretrial case management,
section 6.01, which was the result of a joint request by the Committee on
Rules of Practice and Procedure, then chaired by Judge Lee H. Rosenthal
(S.D. Tex.), and the Advisory Committee on Civil Rules, then chaired by the
late Judge Mark R. Kravitz (D. Conn.). The committees prepared a detailed
outline of civil case management from the period before the Rule 16 confer-
ence through the final pretrial conference, focusing on the judge’s role as an
active case manager. They were assisted by Professor Steven S. Gensler (Uni-
versity of Oklahoma College of Law); Judge David Campbell (D. Ariz.), then
chair of the Discovery Subcommittee of the Civil Rules Committee; and the
Reporters to the Civil Rules Committee, Professors Edward Cooper (Univer-
sity of Michigan Law School) and Richard Marcus (University of California,
Hastings College of the Law).
Another major change to the Benchbook is a completely revised section
on sentencing. The Center has received many requests for a sentencing
iii
“script” that judges can follow, and section 4.01 now contains an extensive
colloquy for the sentencing hearing.
Other significant additions are a new subsection on restraining disrup-
tive defendants (often referred to as “shackling”), a Padilla warning to non-
citizens on the possible immigration consequences of a guilty plea, a similar
warning to sex offenders about collateral consequences they may face, and
expanded jury instructions on the use of social media.
It is important to emphasize that while much of the material in the
Benchbook comes from case law, federal rules, and statutes, the particulars
of the procedures suggested here represent only the recommendations of
the Benchbook Committee. The information provided is deemed to be accu-
rate and valuable, but it is not intended to serve as legal authority and should
not be cited as such. And because circuit law may vary, particularly with re-
spect to procedures, judges should always familiarize themselves with the
requirements of their circuit’s law.
One other change should be noted. Largely because of budgetary con-
straints, the Center will distribute printed copies of the Benchbook only to
new judges. A limited number of paper copies will be available to judges up-
on request, but otherwise the Benchbook will be available electronically on
the Center’s website.
The materials presented in the Benchbook were prepared by experienced
judges. The book is reviewed, updated, and added to by each succeeding
Committee in collaboration with Center staff. The Center would like to thank
the members of the Benchbook Committee, who are appointed by the Chief
Justice. The Committee is chaired by Judge Irma E. Gonzalez (S.D. Cal.) and
includes Judge Paul L. Friedman (D.D.C.), Judge Robert Holmes Bell (W.D.
Mich.) (also chair of the Committee on Criminal Law), Chief Judge James F.
Holderman (N.D. Ill.) (the FJC Board Liaison to the Benchbook Committee),
Judge John W. Lungstrum (D. Kan.), and Chief Judge Patti B. Saris, Chair of
the United States Sentencing Commission. Special thanks go to Judge
Friedman, who took the lead in drafting the new section on Brady
disclosure, Judge Saris for doing the same with the revised section on
sentencing, and Judge Gonzalez for organizing and overseeing all of the
changes. We also thank Judge Barbara J. Rothstein, previous Director of the
FJC, who worked with the Committee during the initial drafting of these
revisions, and Senior Research Associate Laural Hooper of the Center’s
Research Division, who shared her extensive knowledge of Brady disclosure
issues.
We hope you find this edition of the Benchbook to be useful, and we in-
vite comments and suggestions for making it better.
Jeremy D. Fogel
Director, Federal Judicial Center
iv
Contents
Preface iii
Section 4—Sentencing
4.01—Sentencing procedure 125
4.02—Revocation of probation or supervised release 139
v
Section 5— Special trial problems
5.01—Handling a disruptive or dangerous defendant 145
5.02—Grants of immunity 151
5.03—Invoking the Fifth Amendment 153
5.04—Handling the recalcitrant witness 155
5.05—Criminal defendant’s motion for mistrial 161
5.06—Duty to disclose information favorable to defendant (Brady and Giglio
material) 163
Index 281
vi
1.01 Initial appearance
Fed. R. Crim. P. 5
[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3),
any victim of the offense has the right to notice of “any public court proceed-
ing . . . involving the crime . . . of the accused,” and to attend that proceed-
ing. It may be advisable to ask the prosecutor if there are any victims and, if
so, whether the government has fulfilled its duty to notify them.]
The first appearance of the defendant after arrest is usually before a NOTE
magistrate judge. If the defendant consents, the initial appearance If the alleged offense
may be conducted by video teleconferencing (Fed. R. Crim. P. 5(f)). was committed in
another district, see
A. If the arrest was made without a warrant, require that a com- infra section 1.05:
plaint be prepared and filed pursuant to Fed. R. Crim. P. 3 and 4. Commitment to an-
other district (removal
[Note: If you have any doubts about the defendant’s ability to proceedings)
speak and understand English, consider appointing a certified
interpreter in accordance with 28 U.S.C. § 1827. If the defendant
is a foreign national, regardless of immigration status, consider advising
the defendant of the right to consular notification.1]
1. Although judges are not currently required to notify defendants of the right to consu-
lar notification, doing so may avoid unnecessary litigation, cost, and delay. Note that a pro-
posed amendment to Fed. R. Crim. P. 5(d)(1) would require the court “to inform non-citizen
defendants at their initial appearance that (1) they may request that a consular officer from
their country of nationality be notified of their arrest, and (2) in some cases international
treaties and agreements require consular notification without a defendant’s request. The
proposed rule does not, however, address the question whether treaty provisions requiring
consular notification may be invoked by individual defendants in a judicial proceeding and
what, if any, remedy may exist for a violation of Article 36 of the Vienna Convention.” See
the May 17, 2012 “Report of the Advisory Committee on Criminal Rules” in the Preliminary
Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal
Procedure, and the Federal Rules of Evidence at 205 (Committee on Rules of Practice and
Procedure of the Judicial Conference of the United States, Aug. 15, 2012) (http://
www.uscourts.gov/uscourts/rules/rules-published-comment.pdf). The proposed “Committee
Note” to the amendment states that having a judge provide this advice is not designed to re-
lieve law enforcement officers of their responsibility to do so, but rather “to provide addi-
tional assurance that U.S. treaty obligations are fulfilled, and to create a judicial record of
that action.” Id. at 208.
For more detailed guidance relating to the arrest and detention of foreign nationals,
see Consular Notification and Access: Instructions for Federal, State, and Local Law En-
forcement and Other Officials Regarding Foreign Nationals in the United States and the
Rights of Consular Officials to Assist Them, available at http://travel.state.gov/pdf/cna/
CNA_Manual_3d_Edition.pdf. See particularly the sections “Steps to Follow When a Foreign
National Is Arrested or Detained” and “Suggested Statements to Detained Foreign Nation-
als.” See also 28 C.F.R. § 50.5(a) (“Some of the treaties obligate the United States to notify the
consular officer only upon the demand or request of the arrested foreign national. On the
other hand, some of the treaties require notifying the consul of the arrest of a foreign na-
tional whether or not the arrested person requests such notification.”).
[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3),
any victim of the offense has the right to notice of “any public court proceed-
ing . . . involving the crime . . . of the accused,” and to attend that proceed-
ing. It may be advisable to ask the prosecutor if there are any victims and, if
so, whether the government has fulfilled its duty to notify them.]
If counsel has not been assigned by the magistrate judge before the defen-
dant’s first court appearance, assignment of counsel should be the first item
of business before the judge.
[Note: If you have any doubts about the defendant’s ability to speak and
understand English, consider appointing a certified interpreter in accor-
dance with 28 U.S.C. § 1827.]
A. If the defendant has no attorney:
1. Inform the defendant
(a) of his or her constitutional right to be represented by an attorney
at every stage of the proceedings;
(b) that if he or she is unable to afford an attorney, the court will ap-
point one without cost to him or her (18 U.S.C. § 3006A, Fed. R.
Crim. P. 44); and
(c) of the offense with which he or she is charged.
2. Ask the defendant
(a) if he or she understands his or her right to an attorney;
(b) if he or she wishes and is able to obtain counsel; and
(c) if he or she wants the court to appoint counsel.
B. If the defendant requests appointed counsel:
1. Require the completion of a Financial Affidavit by the defendant on
the appropriate Criminal Justice Act form.
2. Inform the defendant that he or she is swearing to the answers to the
questions on the affidavit and that he or she may be penalized for
perjury if he or she gives false information.
3. Determine whether the defendant is unable to afford privately re-
tained counsel. If the defendant qualifies financially for court-
appointed counsel, make that finding and sign the order appointing
counsel.
[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3),
any victim of the offense has the right to notice of “any public court proceed-
ing . . . involving the crime . . . of the accused,” and to attend that proceed-
ing. It may be advisable to ask the prosecutor if there are any victims and, if
so, whether the government has fulfilled its duty to notify them. Victims also
have a right “to be reasonably heard at any public proceeding in the district
court involving release” of the defendant. § 3771(a)(4).]
A. Preliminary
1. Ask the defendant:
(a) What is your full name?
(b) How old are you?
(c) Do you have an attorney?
[If the defendant is unrepresented by counsel, inform the defen-
dant of his or her right to counsel, and appoint counsel if the de-
fendant is qualified (see supra section 1.02: Assignment of coun-
sel or pro se representation).]
2. If you are not sure the defendant understands English, ask the de-
fendant:
Are you able to speak and understand English?
[If the defendant has an attorney, ask counsel if he or she has
been able to communicate with the defendant in English. If you
doubt the defendant’s capacity to understand English, use a cer-
tified interpreter. See 28 U.S.C. § 1827.]
3. Ask the U.S. attorney whether the government wants to move for de-
tention under 18 U.S.C. § 3142(d) or (e). If the motion is made, hold
the appropriate hearing. This may require a continuance (not to ex-
ceed five days on the defendant’s motion, three days on the gov-
ernment’s motion, except for good cause). 18 U.S.C. § 3142(f). If the
motion is not made, proceed to the bail inquiry.
B. Bail inquiry 1
1. Review any pretrial services report provided by the probation office.
2. Hear information relevant to considerations for fixing bail:
1. Paragraphs B through F of this section cover procedures for setting bail when deten-
tion is not requested, or when detention is denied and conditions of release must be set. The
information obtained under paragraphs B through E is also relevant to deciding whether to
detain the defendant under 18 U.S.C. § 3142(f). See paragraph H infra.
2. A crime victim has the right “to be reasonably protected from the accused.” 18 U.S.C.
§ 3771(a)(1).
[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3),
any victim of the offense has the right to notice of “any public court proceed-
ing . . . involving the crime . . . of the accused,” and to attend that proceed-
ing. It may be advisable to ask the prosecutor if there are any victims and, if
so, whether the government has fulfilled its duty to notify them.]
The following procedure applies if the defendant and the government con-
sent to transfer the prosecution of an offense committed in another district
to the district where the defendant was arrested or is being held. Fed. R.
Crim. P. 20(a).
A. Preliminary
Have the oath administered and ask the defendant:
1. What is your full name?
2. How old are you?
3. How far did you go in school? What is your employment experi-
ence?
[If you are not sure the defendant understands English, ask the
defendant:]
4. Are you able to speak and understand English?
[If the defendant has an attorney, ask counsel if he or she has
been able to communicate with the defendant in English. If you
doubt the defendant’s capacity to understand English, use a cer-
tified interpreter. See 28 U.S.C. § 1827.]
5. Are you currently or have you recently been under the care of a
physician or a psychiatrist, or been hospitalized or treated for
narcotics addiction? Have you taken any drugs, medicine, or pills
or drunk any alcoholic beverage in the past twenty-four hours?
[If the answer to either question is yes, pursue the subject with
the defendant and with counsel to determine that the defendant
is currently competent to waive proceedings in the district where
the offense was committed.]
6. Do you have an attorney?
[If he or she does not have an attorney, inform the defendant of
the right to counsel and appoint counsel if the defendant quali-
fies. See supra section 1.02: Assignment of counsel or pro se repre-
sentation.]
[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3),
any victim of the offense has the right to notice of “any public court proceed-
ing . . . involving the crime . . . of the accused,” and to attend that proceed-
ing. It may be advisable to ask the prosecutor if there are any victims and, if
so, whether the government has fulfilled its duty to notify them.]
1. Although judges are not currently required to notify defendants of the right to consu-
lar notification, doing so may avoid unnecessary litigation, cost, and delay. Note that a pro-
posed amendment to Fed. R. Crim. P. 5(d)(1) would require the court “to inform non-citizen
defendants at their initial appearance that (1) they may request that a consular officer from
their country of nationality be notified of their arrest, and (2) in some cases international
treaties and agreements require consular notification without a defendant’s request. The
proposed rule does not, however, address the question whether treaty provisions requiring
consular notification may be invoked by individual defendants in a judicial proceeding and
what, if any, remedy may exist for a violation of Article 36 of the Vienna Convention.” See
4. Without asking the defendant to state his or her name or other iden-
tifying information at this time, advise the defendant of his or her
(a) general rights under Fed. R. Crim. P. 5 (nature of charge, right to
counsel, right to remain silent—see supra section 1.01: Initial ap-
pearance);
(b) right to waive removal and voluntarily return to the district where
charges are pending;
(c) right, if charges are based on complaint and warrant, to
(i) have a preliminary examination in this district;
(ii) have a preliminary examination in the district where the
charges are pending; or
(iii) waive preliminary examination.
(d) right to an identity hearing and the right to waive that hearing;
(e) right under Fed. R. Crim. P. 20 to plead guilty or nolo contendere
in this district if both U.S. attorneys consent.
5. If the defendant appears without counsel, appoint counsel or allow
time for the defendant to retain counsel; set an appropriate hearing
or examination date to allow counsel time to confer and elect options.
6. If the defendant appears with counsel or after counsel has been ap-
pointed or retained, ascertain which of the above options (4(b)–4(d)
of this section) he or she desires, then sign an Order of Removal
(whereby the defendant returns voluntarily) or set an appropriate
examination or hearing date.
the May 17, 2012 “Report of the Advisory Committee on Criminal Rules” in the Preliminary
Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal
Procedure, and the Federal Rules of Evidence at 205 (Committee on Rules of Practice and
Procedure of the Judicial Conference of the United States, Aug. 15, 2012) (http://
www.uscourts.gov/uscourts/rules/rules-published-comment.pdf). The proposed “Committee
Note” to the amendment states that having a judge provide this advice is not designed to re-
lieve law enforcement officers of their responsibility to do so, but rather “to provide addi-
tional assurance that U.S. treaty obligations are fulfilled, and to create a judicial record of
that action.” Id. at 208.
For more detailed guidance relating to the arrest and detention of foreign nationals,
see Consular Notification and Access: Instructions for Federal, State, and Local Law En-
forcement and Other Officials Regarding Foreign Nationals in the United States and the
Rights of Consular Officials to Assist Them, available at http://travel.state.gov/pdf/cna/
CNA_Manual_3d_Edition.pdf on the U.S. Department of State website, http://travel.state.
gov/consul_notify.html. See particularly the sections “Steps to Follow When a Foreign Na-
tional Is Arrested or Detained” and “Suggested Statements to Arrested or Detained Foreign
Nationals.” See also 28 C.F.R. § 50.5(a) (“Some of the treaties obligate the United States to
notify the consular officer only upon the demand or request of the arrested foreign national.
On the other hand, some of the treaties require notifying the consul of the arrest of a foreign
national whether or not the arrested person requests such notification.”).
(a) If the defendant waives the right to an identity hearing, have the
defendant state his or her full name and age for the record.
(b) Set the date of the hearing or examination to allow time for in-
quiry into possible Fed. R. Crim. P. 20 transfer.
(c) Keep in mind Speedy Trial Act requirements (see infra section
1.10: Speedy Trial Act).
7. Determine whether to release or detain the defendant pending fur-
ther proceedings. A request for detention or the amount of bail pre-
viously fixed in the district where charges are pending must be taken
into account but is not binding. A different action, however, requires
reasons in writing. Note that the defendant is entitled to only one de-
tention hearing and may wish to reserve that right until after being
transferred to the charging district.
[Note: If there are any victims of the offense present, give them an
“opportunity to be reasonably heard” regarding the defendant’s
possible release. 18 U.S.C. § 3771(a)(4).]
8. Conduct hearings:
(a) Preliminary hearing (Fed. R. Crim. P. 5.1).
(b) Identity hearing (Fed. R. Crim. P. 5(c)(3)(D)(ii))
(i) Hear evidence as to physical descriptions, fingerprints,
handwriting, hearsay statements, telephone checks with
charging district, photographs, probation officer’s testi-
mony, etc.
(ii) The government has the burden of proof to show probable
cause that the person arrested is the person named in the
charging instrument.
(c) Fed. R. Crim. P. 20 transfer plea (see supra section 1.04: Offense
committed in another district).
9. Order the defendant held and transferred (Order of Removal), or dis-
charged; transmit papers and any bail to the clerk of the charging dis-
trict.
B. Arrest of a probationer or a supervised releasee in a district other than
the district of supervision (Fed. R. Crim. P. 32.1(a)(5)).2
1. Determine the time and place of, and authority for, the arrest; inform
the defendant of the charges; and advise the defendant of general
rights (nature of charge, right to counsel, right to remain silent).
2. Note that the Crime Victims’ Rights Act, 18 U.S.C. § 3771, may apply if the violation
that caused the arrest involved the commission of a federal crime. It is not clear whether the
rights of victims of the original offense carry over to court proceedings for violations of pro-
bation or supervised release.
3. Note: Rule 40(d) was added to allow an appearance under Rule 40 to be conducted by
video teleconference, with the defendant’s consent, in conformity with Rule 5(f).
Or
(b) Dismiss the proceedings and notify the district where the warrant
was issued if you find the defendant is not the person so named.
3. The court may modify any previous release or detention order issued
by the other district, but must state in writing the reasons for doing
so. Fed. R. Crim. P. 40(c).
4. Note that the Crime Victims’ Rights Act, 18 U.S.C. § 3771, may be ap-
plicable to this hearing.
[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3),
any victim of the offense has the right to notice of “any public court proceed-
ing . . . involving the crime . . . of the accused,” and to attend that proceed-
ing. It may be advisable to ask the prosecutor if there are any victims and, if
so, whether the government has fulfilled its duty to notify them.]
A. Preliminary NOTE
Have the oath administered and ask the defendant: An offense that may be
punishable by death
1. What is your full name? must be prosecuted by
2. How old are you? indictment and there-
fore precludes waiver
3. How far did you go in school? What is your employment of indictment. Fed. R.
experience? Crim. P. 7(a) and (b).
[If you are not sure the defendant can understand Eng-
lish, ask:]
4. Are you able to speak and understand English?
[If the defendant has an attorney, ask counsel if he or she has
been able to communicate with the defendant. If you doubt the
defendant’s capacity to understand English, use a certified in-
terpreter. See 28 U.S.C. § 1827.]
5. Are you currently or have you recently been under the care of a
physician or a psychiatrist or been hospitalized or treated for nar-
cotics addiction? Have you taken any drugs, medicine, or pills or
drunk any alcoholic beverage in the past twenty-four hours?
[If the answer to either question is yes, pursue the subject with
the defendant and with counsel to determine that the defendant
is currently competent to waive indictment.]
6. Do you have an attorney?
[If the defendant does not have an attorney, inform the defen-
dant of the right to counsel and appoint counsel if the defendant
qualifies (see supra section 1.02: Assignment of counsel or pro se
representation).]
B. Ask the defendant:
Have you been furnished with a copy of the charge(s) against
you?
C. Explain in detail the charge(s) against the defendant and make clear
that he or she is charged with committing a felony.
1. If the waiver was signed before the hearing, the court should examine the signatures
on the form and have the defendant and defendant’s counsel verify that the signatures are
theirs.
[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3),
any victim of the offense has the right to notice of “any public court proceed-
ing . . . involving the crime . . . of the accused,” and to attend that proceeding.
It may be advisable to ask the prosecutor if there are any victims and, if so,
whether the government has fulfilled its duty to notify them.]
A. Preliminary
Have oath administered and ask the defendant:
1. What is your full name?
2. How old are you?
3. How far did you go in school? What is your employment experi-
ence?
[If you are not sure the defendant can understand English, ask:]
4. Are you able to speak and understand English?
[If the defendant has an attorney, ask counsel if he or she has
been able to communicate with the defendant. If you doubt the
defendant’s capacity to understand English, use a certified in-
terpreter. See 28 U.S.C. § 1827.]
5. Are you currently or have you recently been under the care of a
physician or a psychiatrist or been hospitalized or treated for nar-
cotics addiction? Have you taken any drugs, medicine, or pills or
drunk any alcoholic beverage in the past twenty-four hours?
[If the answer to either question is yes, pursue the subject with
the defendant and with counsel to determine that the defendant
is currently competent to enter a plea.]
6. Do you have an attorney?
[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3),
any victim of the offense has the right to notice of “any public court proceed-
ing . . . involving the crime . . . of the accused,” and to attend that proceed-
ing. It may be advisable to ask the prosecutor if there are any victims and, if
so, whether the government has fulfilled its duty to notify them.]
Introduction
Fed. R. Crim. P. 44(c)(2) provides as follows in cases of joint representation:
The court must promptly inquire about the propriety of joint representation
and must personally advise each defendant of the right to effective assistance
of counsel, including separate representation. Unless there is good cause to
believe that no conflict of interest is likely to arise, the court must take appro-
priate measures to protect each defendant’s right to counsel.
When a trial court becomes aware of a potential conflict of interest, it
must pursue the matter, even if counsel does not. Judges should strongly
recommend to codefendants that they avoid dual representation and
should make clear that a court-appointed attorney is available to represent
each defendant or to consult with each defendant concerning dual repre-
sentation. This section is a hearing procedure for so advising defendants
and for obtaining a waiver of the right to separate counsel. Note, however,
that in certain situations, a district court may disqualify an attorney, despite
a defendant’s voluntary, knowing, and intelligent waiver of the right to con-
flict-free counsel. See Wheat v. United States, 486 U.S. 153, 163 (1988) (“dis-
trict court must be allowed substantial latitude in refusing waivers of con-
flicts of interest not only in those rare cases where an actual conflict may be
demonstrated before trial, but in the more common cases where a potential
for conflict exists which may or may not burgeon into an actual conflict as the
trial progresses”).
Procedure
A. Determine if the defendant is competent.
1. Ask the defendant:
(a) Mr., Ms., Mrs., Miss _________, how old are you?
(b) How far did you go in school?
[If you are not sure the defendant can understand English, ask:]
(c) Are you able to speak and understand English?
advise you whether or not to accept it. But if your lawyer advises
you to accept the offer, it may harm the cases of the other defen-
dants represented by that lawyer.
3. The government may let a defendant who is not as involved as
other defendants plead guilty to lesser charges than the other de-
fendants. After the guilty plea, however, the government may re-
quire the defendant to testify. A lawyer who represents more than
one defendant might recommend that the first defendant not
plead guilty in order to protect the other defendants that the law-
yer represents. On the other hand, the lawyer might recommend
that the first defendant plead guilty, which might harm the cases
of the other defendants.
4. Dual representation may affect how your lawyer exercises peremp-
tory challenges or challenges for cause during jury selection. Po-
tential jurors who may be perceived as favorable to you may be
perceived as harmful to another defendant, or jurors who may be
perceived as favorable to other defendants may be harmful to
you.
5. Sometimes one of the defendants represented by a lawyer will
take the stand to testify in his or her own behalf. In order to rep-
resent the other defendants fairly, the lawyer should question the
defendant on the stand as completely as possible. However, the
lawyer may not be able to do that because he or she cannot ask
the defendant as a witness about anything that the defendant has
told the lawyer in confidence.
6. The best defense for a single defendant often is the argument that
while the other defendants may be guilty, he or she is not. A law-
yer representing two or more defendants cannot effectively make
such an argument.
7. Evidence that helps one defendant might harm another defen-
dant’s case. When one lawyer represents two or more defendants,
the lawyer might offer or object to evidence that could help one
defendant but harm another.
8. Regarding sentencing, dual representation would prohibit the
lawyer from engaging in post-trial negotiations with the govern-
ment as to full disclosure by one defendant against the other. It
would also prohibit the lawyer from arguing the relative culpabil-
ity of the defendants to the sentencing judge.
F. An attorney proposing to represent codefendants should be required to
assure the court that there will be no conflict that could result in a lack of
effective assistance of counsel or other prejudice to any defendant.
[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3),
any victim of the offense has the right to notice of “any public court proceed-
ing . . . involving the crime . . . of the accused,” and to attend that proceed-
ing. It may be advisable to ask the prosecutor if there are any victims and, if
so, whether the government has fulfilled its duty to notify them.]
Introduction
Trial by jury is a fundamental constitutional right, and waiver of the right to
a jury trial should be accepted by a trial judge only when three requirements
are satisfied:
1. the procedures of Fed. R. Crim. P. 23(a) have been followed;
2. the waiver is knowing and voluntary; and
3. the defendant is competent to waive a constitutional right.
Fed. R. Crim. P. 23(a) requires that the accused’s waiver of the right to
trial by jury be
1. made in writing;
2. consented to by the government; and
3. approved by the court.
Following this rule alone does not satisfy the requirement that the waiver
be knowing and voluntary, however.
The trial judge should ascertain on the record
1. whether the accused understands that he or she has a right to be
tried by a jury;
2. whether the accused understands the difference between a jury trial
and a nonjury trial; and
3. whether the accused has been made to understand the advantages
and disadvantages of a jury trial.
Before approving the waiver, a trial judge must consider a defendant’s
mental capacity to waive a jury trial. A defendant is not competent to waive a
constitutional right if mental incapacity or illness substantially impairs his or
her ability to make a reasoned choice among the alternatives presented and
to understand the nature and consequences of the waiver.
When information available from any source presents a question as to
the defendant’s competence to waive a jury trial, sua sponte inquiry into
that competence must be made.
14. Have you discussed with your attorney the advantages and disad-
vantages of a jury trial? Do you want to discuss this issue further
with your attorney?
B. Questions for counsel
In determining whether the accused has made a “knowing and volun-
tary” waiver and is competent to waive the right to a jury trial, the judge
should question both the defense counsel and the prosecutor.
1. Ask the defense counsel:
(a) Have you discussed with the defendant the advantages and
disadvantages of a jury trial?
(b) Do you have any doubt that the defendant is making a
“knowing and voluntary” waiver of the right to a jury trial?
(c) Has anything come to your attention suggesting that the de-
fendant may not be competent to waive a jury trial?
2. Ask the prosecutor:
Has anything come to your attention suggesting that the de-
fendant may not be competent to waive a jury trial?
C. Form of waiver and oral finding
1. A written waiver of a jury trial must be signed by the defendant, ap-
proved by the defendant’s attorney, consented to by the govern-
ment, and approved by the court.
2. It is suggested that the judge state orally:
This court finds that the defendant has knowingly and voluntarily
waived his [her] right to a jury trial, and I approve that waiver.
3. An appropriate written waiver of jury trial may take the form of the
one shown on the next page.
Defendant
APPROVED:
I find that the defendant has knowingly and voluntarily waived the right to a
jury trial, and I approve the waiver.
Judge
Title I of the Speedy Trial Act of 1974 (18 U.S.C. § 3161) imposes time limits
within which criminal defendants must be brought to trial. The time limits
are expressed as numbers of days from certain events, but the statute pro-
vides that certain periods of time be “excluded” in computing these limits,
thereby extending the deadlines. The statute applies to offenses other than
petty offenses.1 This section is offered as a general guide to the time limits
and exceptions in the Speedy Trial Act. Judges should be aware that circuit
law may differ on specific issues.
Judges should also be aware of the possible effect of the Crime Victims’
Rights Act. Any victims of the offense have the right to be notified by the
government of, and not be excluded from, any public proceeding. They also
have a right to “proceedings free from unreasonable delay,” which may
need to be considered if exceptions to the Speedy Trial Act’s time limits are
requested. See 18 U.S.C. § 3771(a)(2), (3), and (7).
Dismissal
Failure to comply with the time limits generally requires that a cause be dis-
missed, although not necessarily with prejudice. In deciding whether to
dismiss with or without prejudice, the court should consider the seriousness
of the offense, the facts and circumstances that led to the dismissal, and the
impact of a reprosecution on the administration of the Speedy Trial Act and
the administration of justice. See 18 U.S.C. § 3162(a)(1) and (2). If the de-
fendant may be released, victims should be given an “opportunity to be rea-
sonably heard” at any public proceeding on the issue. 18 U.S.C.
§ 3771(a)(4).
Waiver by defendant
Although a defendant’s failure to make a timely motion for dismissal on
speedy trial grounds is deemed a waiver of the right to dismissal,2 courts
should not rely solely on defendants’ agreements to delay their trials be-
yond the statutory time limits. As the Supreme Court concluded,
§ 3161(h) has no provision excluding periods of delay during which a defen-
dant waives the application of the Act, and it is apparent from the terms of the
Act that this omission was a considered one. Instead of simply allowing defen-
dants to opt out of the Act, the Act demands that defense continuance requests
fit within one of the specific exclusions set out in subsection (h).
Zedner v. United States, 126 S. Ct. 1976, 1985–87 (2006) (holding that “a de-
fendant may not prospectively waive the application of the Act” and that
“petitioner’s waiver ‘for all time’ was ineffective”).
Trial
A trial must commence within seventy days after the later of (a) the date of
the indictment or information or (b) the date of the defendant’s initial ap-
pearance before a judicial officer in the district in which charges were
brought. See 18 U.S.C. § 3161(c). In some circumstances, the deadline for
trial on a superseding indictment relates back to the original indictment.
Retrial
A retrial following a mistrial or order for a new trial must commence within
seventy days after the date the action occasioning the retrial becomes final.
18 U.S.C. § 3161(e). Retrial following a dismissal by the trial court and rein-
statement after appeal, or following an appeal or collateral attack, must also
commence within seventy days, but an extension of up to 180 days may be
allowed if trial within seventy days is impractical. 18 U.S.C. § 3161(d) and
(e).
Excludable periods
There are several periods of delay that “shall be excluded” from the time
limits for filing an indictment or information or for commencing trial. See 18
U.S.C. § 3161(h)(1)–(8). Among these are periods of delay resulting “from
other proceedings concerning the defendant,”3 “from the absence or un-
availability of the defendant or an essential witness,” and “from the fact that
the defendant is mentally incompetent or physically unable to stand trial.”
A period of delay resulting from the granting of a continuance may also
be excluded if the continuance was granted on the basis of a finding that
“the ends of justice served by taking such action outweigh the best interest
of the public and the defendant in a speedy trial.” The court must put on the
record, “either orally or in writing, its reasons for [that] finding.”4 See 18
U.S.C. § 3161(h)(7)(A) & (B) (listing some of the factors a judge should con-
sider in determining whether to grant a continuance).5 The Supreme Court
held that “if a judge fails to make the requisite findings regarding the need
for an ends-of-justice continuance, the delay resulting from the continuance
3. Section 3161(h)(1)(D) excludes periods of “delay resulting from any pretrial motion,
from the filing of the motion through the conclusion of the hearing on, or other prompt dis-
position of, such motion.” However, the Supreme Court has held that any time granted to
prepare such motions is not automatically excluded, and is only excludable if, following
§ 3161(h)(7), “the court sets forth, in the record of the case, either orally or in writing, its rea-
sons for finding that the ends of justice served by the granting of such continuance outweigh
the best interests of the public and the defendant in a speedy trial.” Bloate v. United States,
130 S. Ct. 1345, 1351–58 (2010). Note that once a motion is actually filed, it falls within sub-
section (D) “irrespective of whether it actually causes, or is expected to cause, delay in start-
ing a trial.” United States v. Tinklenberg, 131 S. Ct. 2007, 2011 (2011).
4. Consider asking the U.S. attorney to prepare the form of the order.
5. See e.g., United States v. Sutcliffe, 505 F.3d 944, 956–57 (9th Cir. 2007) (“ends of justice”
continuance properly granted “to allow [newly] appointed defense counsel time to prepare
for trial given the complexity of the case, the large amount of electronic evidence, and the
repeated changes in Defendant’s representation”); United States v. Gardner, 488 F.3d 700,
718–19 (6th Cir. 2007) (same, where three codefendants all requested extra time to reconcile
trial dates and prepare for trial); United States v. Apperson, 441 F.3d 1162, 1183–84 (10th
Cir. 2006) (same, for medical problems of defendant’s attorney); United States v. Ruth, 65
F.3d 599, 606 (7th Cir. 1995) (same, for delay caused by defendant’s refusal to provide hand-
writing exemplars); United States v. Drapeau, 978 F.2d 1072, 1072–73 (8th Cir. 1992) (same,
to allow time for DNA test that would either exculpate or inculpate defendant); United States
v. Sarro, 742 F.2d 1286, 1300 (11th Cir. 1984) (same, where one codefendant’s attorney had
other trial scheduled at same time and another codefendant’s brother had recently died).
must be counted, and if as a result the trial does not begin on time, the in-
dictment or information must be dismissed. . . . [W]e leave it to the District
Court to determine in the first instance whether dismissal should be with or
without prejudice.”6 Zedner v. United States, 547 U.S. 489, 507–09 (2006) (the
Court added that “at the very least the Act implies that those findings must
be put on the record by the time a district court rules on a defendant’s mo-
tion to dismiss under § 3162(a)(2)”).
Note that a continuance under this section may not be granted “because
of general congestion of the court’s calendar, or lack of diligent preparation
or failure to obtain available witnesses on the part of the attorney for the
Government.” 18 U.S.C. § 3161(h)(7)(C). The right of crime victims to “pro-
ceedings free from unreasonable delay” may also have to be considered. See
18 U.S.C. § 3771(a)(7).
6. See § 3162(a)(2) (“In determining whether to dismiss the case with or without preju-
dice, the court shall consider, among others, each of the following factors: the seriousness of
the offense; the facts and circumstances of the case which led to the dismissal; and the impact
of a reprosecution on the administration of this chapter and on the administration of jus-
tice.”).
1. 18 U.S.C. § 5032; United States v. Hill, 538 F.2d 1072 (4th Cir. 1976).
2. McKeiver v. Pennsylvania, 403 U.S. 528 (1971); United States v. Hill, 538 F.2d 1072
(4th Cir. 1976).
3. In re Gault, 387 U.S. 1 (1967); United States v. Costanzo, 395 F.2d 441 (4th Cir. 1968).
4. In re Gault, 387 U.S. 1 (1967); United States v. Hill, 538 F.2d 1072 (4th Cir. 1976); West
v. United States, 399 F.2d 467 (5th Cir. 1968) (factors in deciding if juvenile has waived privi-
lege against self-incrimination.
5. In re Gault, 387 U.S. 1 (1967); United States v. Hill, 538 F.2d 1072 (4th Cir. 1976);
United States v. Costanzo, 395 F.2d 441 (4th Cir. 1968).
6. 18 U.S.C. § 5038(e).
7. 18 U.S.C. § 5032.
(b) The court should also ask the juvenile’s counsel and the prosecu-
tor this question:
Do either of you have any doubt as to the juvenile’s compe-
tence to admit or deny the charge(s) against him [her] at this
time?
(c) If, after further interrogation of the juvenile and counsel, there is
any question of the juvenile’s understanding of the proceedings
and of his or her competence to plead, continue the taking of the
admission or denial to a later date.
5. Determine the juvenile’s awareness of the consequences of an ad-
mission. Ask:
(a) Are you aware that, if you admit the charge(s) against you,
you are giving up your right:
(1) to trial by the court?
(2) to confront and cross-examine witnesses?
(3) to remain silent, testify, and call witnesses?
(4) to require the government to prove guilt beyond a reason-
able doubt?
(b) Are you aware that if you admit the charge(s) against you, you
will lose the right to elect to proceed as an adult with the fol-
lowing rights:8
(1) to an indictment, if applicable?
(2) to a trial by jury?
[See supra subsection A.3(f) of this section.]
6. Explain to the juvenile that if he or she admits to the act with which
he or she has been charged, the government will then tell the court
what it believes the facts to be and what it could prove if the case
were to go to trial. Next, explain that the court would then ask the ju-
venile
(a) if what the government says is true as far as he or she knows;
(b) if any part of what the government says is not true, and if so, what
is not true;
(c) if he or she believes that the government can prove what it says it
can prove; and
(d) if he or she committed [here, go through the elements of the of-
fense].
8. Cf. United States v. Doe, 627 F.2d 181 (9th Cir. 1980) (discussing timing requirement
for making request to proceed as an adult).
(e) Find that the juvenile is aware of the maximum penalty that
could be imposed against him or her.
(f) Find that the juvenile is aware that the government has sufficient
facts to support an adjudication of juvenile delinquency.
(g) Ask the juvenile if he or she wants to change his or her mind and
not proceed as a juvenile or not admit to the charge(s) against
him or her.
(h) Adjudge that the juvenile is a juvenile delinquent.
10. Inform the juvenile and his or her parents or guardian, in writing, of
the juvenile’s rights relating to the confidentiality of juvenile re-
cords.9
C. Disposition (18 U.S.C. § 5037)10
1. Detention prior to disposition (18 U.S.C. § 5035)
(a) A juvenile alleged to be delinquent may be detained only in a ju-
venile facility or other suitable place designated by the Attorney
General.
(b) Detention shall be in a foster home or community-based facility
located in or near the juvenile’s home community whenever pos-
sible.
(c) The juvenile shall not be detained or confined in any institution
in which he or she would have regular contact with adults con-
victed of crimes or awaiting trial on criminal charges. Also, insofar
as possible, alleged delinquents shall be kept separate from adju-
dicated delinquents.
(d) Every juvenile in custody should be provided with adequate
food, heat, light, sanitary facilities, bedding, clothing, recreation,
education, and medical care, including necessary psychiatric,
psychological, or other care and treatment.
2. Timing of hearing (18 U.S.C. § 5037(a))
If the juvenile is adjudicated to be delinquent, the court must have a
hearing disposing of the case within twenty court days after said ad-
judication unless the court has ordered further studies in accordance
with 18 U.S.C. § 5037(d). (See infra paragraph C.5 of this section.)
3. Judgment following disposition hearing
After the disposition hearing, the court may
(a) suspend the findings of delinquency;
9. 18 U.S.C. § 5038(b). See 18 U.S.C. § 5038(a), (c), (d), and (f) for authority to release ju-
venile records.
10. The following outline is not intended as a procedure for conducting a dispositional
hearing, but as supplemental material to be used in setting the dispositional hearing.
Calendar of events
Juvenile in custody
The juvenile must be brought to trial within thirty days from the date deten-
tion was begun. 18 U.S.C. § 5036.
The dispositional hearing must occur within twenty court days after a ju-
venile is adjudicated delinquent. 18 U.S.C. § 5037(a).
11. But see Model Statement of the Time Limits and Procedures for Achieving Prompt
Disposition of Criminal Cases (Committee on the Administration of the Criminal Law of the
Judicial Conference of the United States) (1979) (except as specifically provided, the time
limits are not applicable to proceedings under the FJDA).
[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3),
any victim of the offense has the right to notice of “any public court proceed-
ing . . . involving the crime . . . of the accused,” and to attend that proceeding.
It may be advisable to ask the prosecutor if there are any victims and, if so,
whether the government has fulfilled its duty to notify them.]
The mental competency of a the defendant may come before the court in a
number of different contexts. The most important are
• competency to stand trial;
• competency to plead guilty;
• competency to commit the crime with which the defendant is
charged (e.g., ability to form the requisite intent);
• competency after acquittal by reason of insanity;
• competency to be sentenced;
• mental condition as it bears on the sentence to be imposed; and
• civil commitment of a convicted offender in need of care or treatment
for a mental condition.
The Insanity Defense Reform Act of 1984, 18 U.S.C. §§ 4241–4248, is now
controlling with respect to most situations involving the mental competency
of a defendant. It is a complex enactment, the provisions of which are
spelled out in great detail. Its provisions must be read with care and com-
plied with meticulously.
A. Competency to stand trial (18 U.S.C. § 4241)
1. Section 4241(a) provides that after the commencement of a prosecu-
tion and prior to sentencing, either the U.S. attorney or defense
counsel may move for a hearing to determine the defendant’s men-
tal competency. The court shall grant the motion, or shall order a
hearing on its own motion, if there is reasonable cause to believe that
the defendant is not mentally competent
(a) to understand the nature and consequences of the proceedings
against him or her; or
(b) to assist properly in his or her defense.
2. Prior to the hearing the court may (and probably should) order that a
psychiatric or psychological examination be conducted and that a re-
port be filed with the court. 18 U.S.C. § 4241(b).
(a) The examiner should be asked for his or her opinion as to whether
the defendant is suffering from a mental disease or defect ren-
under Fed. R. Crim. P. 12(b), the court may, upon motion of the gov-
ernment, order the defendant examined under procedures ordered
by the court. Fed. R. Crim. P. 12.2(c)(1).
The examiner should be asked to give his or her opinion as
to whether, at the time of the acts constituting the offense, the
defendant was unable to appreciate the nature and quality or NOTE
the wrongfulness of his or her acts as a result of a severe mental Serious due process
disease or defect. See 18 U.S.C. § 17(a). The examiner should and compulsory proc-
be requested to include in his or her report all of the informa- ess issues may arise if
the court excludes ex-
tion required by § 4247(c). pert testimony con-
3. The defendant bears the burden of proving the defense of in- cerning an insanity
defense when a con-
sanity by clear and convincing evidence. 18 U.S.C. § 17(b). tinuance of the trial
4. No statement made by the defendant during a court-ordered would be feasible.
See Taliaferro v.
mental examination (whether the examination was with or Maryland, 456 A.2d 29,
without the defendant’s consent), no testimony by the expert cert. denied, 461 U.S.
based on that statement, and no fruit of that statement may be 948 (1983) (White, J.,
admitted against the defendant in any criminal proceeding ex- dissenting).
cept with regard to an issue concerning mental condition on
which the defendant has introduced testimony or, in a capital
sentencing proceeding, has introduced expert evidence. Fed.
R. Crim. P. 12.2(b)(2) and (c)(4).
5. Results and reports of any examination conducted for a capital sen-
tencing hearing after notice under Fed. R. Crim. P. 12.2(b)(2) must be
sealed and not disclosed to either party unless the defendant is
found guilty of a capital crime and intends to offer at sentencing ex-
pert evidence on mental condition. Once the results and reports of
the government’s examination have been disclosed, the defendant
must disclose to the government the results and reports of any ex-
amination on mental condition conducted by the defendant’s expert
about which the defendant intends to introduce expert evidence.
Fed. R. Crim. P. 12.2(c)(2) and (3).
6. If the defendant fails to provide timely notice to the government at-
torney of his or her intent to introduce expert testimony relating to an
insanity defense, or if he or she fails to submit to an examination, the
court may exclude the testimony of any expert witness offered by the
defendant on the issue of the defendant’s mental condition at the
time of the alleged criminal offense or on the issue of punishment in
a capital case. Fed. R. Crim. P. 12.2(d).
D. Competency after acquittal by reason of insanity (18 U.S.C. § 4243)
If a defendant is found not guilty only by reason of insanity, he or she
shall be committed to a suitable facility until such time as he or she is eli-
gible for release under 18 U.S.C. § 4243(f). The provisions of § 4243(e) re-
lating to the confinement and release of a defendant acquitted by rea-
son of insanity are detailed and complex. Those provisions must be fol-
lowed with meticulous care. Any hearing must comply with the provi-
sions of § 4247(d). Any report of a psychiatric or psychological examina-
tion must comply with the requirements of § 4247(c).
E. Competency to be sentenced
Because the defendant has the right of allocution at sentencing and
must be able to understand the nature of the proceedings, the defen-
dant cannot be sentenced if he or she does not have the mental capacity
to exercise the right of allocution or to understand the nature of the pro-
ceedings.
If there is any question as to the defendant’s mental competency to
be sentenced, an 18 U.S.C. § 4241 examination should be ordered and a
hearing held before sentencing. The court should provide the examiner
with the criteria the examiner is to apply in determining whether the de-
fendant is competent to be sentenced. The court should request the ex-
aminer to include in his or her report all of the information required by
§ 4247(c). Any hearing must be held pursuant to the requirements of
§ 4247(d).
F. Mental condition as it bears on sentence imposed
l. Adult offenders (18 U.S.C. § 3552(b))1
(a) If the court determines that it needs more detailed information
about the defendant’s mental condition as a basis for determin-
ing the sentence to be imposed, the court may order a study of
the defendant.
(b) The study should be conducted by a qualified consultant in the
local community, unless the court finds that there is a compelling
reason to have the study done by the Bureau of Prisons or that
there are no adequate professional resources in the local com-
munity to perform the study.
(i) If the study is to be done in the local community, the court
should designate a consultant, usually a psychiatrist or psy-
chologist, to conduct the study and order the defendant to
submit to the examination. The probation office will assist in
identifying people who are qualified and willing to perform
such studies; the probation office can also provide funds for
this purpose.
(ii) If the study is to be done by the Bureau of Prisons, the de-
fendant should be committed under 18 U.S.C. § 3552(b) to
1. Subsections (b) and (c) of § 3552 both authorize studies in aid of sentencing. Subsec-
tion (c) specifically authorizes a psychiatric or psychological exam, but it appears preferable
to rely on the more flexible general authority of § 3552(b).
2. A court may also have to consider that, if there are victims of the offense, they have a
right “to proceedings free from unreasonable delay.” 18 U.S.C. § 3771(a)(7).
Procedure
The general procedure for referring matters to magistrate judges is set forth
in Fed. R. Crim. P. 59, which became effective December 1, 2005:
(a) Nondispositive Matters. A district judge may refer to a magistrate judge for
determination any matter that does not dispose of a charge or defense. The
magistrate judge must promptly conduct the required proceedings and, when
appropriate, enter on the record an oral or written order stating the determi-
nation. . . .
(b) Dispositive Matters.
(1) . . . A district judge may refer to a magistrate judge for recommendation
a defendant's motion to dismiss or quash an indictment or information, a mo-
tion to suppress evidence, or any matter that may dispose of a charge or de-
fense. The magistrate judge must promptly conduct the required proceedings.
A record must be made of any evidentiary proceeding and of any proceeding if
the magistrate judge considers it necessary. The magistrate judge must enter
on the record a recommendation for disposing of the matter, including any
proposed findings of fact.
In either case, the parties have ten days to object to the order or recom-
mendation, unless the court sets a longer period. “Failure to object in accor-
dance with this rule waives a party’s right to review,” Fed. R. Crim. P. 59(a)
and (b)(2), although the district court retains discretion to review the deci-
sion. The Advisory Committee Notes to Rule 59 emphasize that, “[a]lthough
the rule distinguishes between ‘dispositive’ and ‘nondispositive’ matters, it
does not attempt to define or otherwise catalog motions that may fall within
either category. Instead, that task is left to the case law.”
Specific proceedings
Listed below are duties in criminal matters that are covered in sections 1, 2,
and 4 of this Benchbook and that may be referred to magistrate judges. See
also 28 U.S.C. § 636. Most districts have local rules or standing orders gov-
erning referrals to magistrate judges.
For a more comprehensive listing of the duties magistrate judges may
perform, see Inventory of United States Magistrate Judge Duties (December
1999), available from the Magistrate Judges Division of the Administrative
Office of the U.S. Courts.1 This information also appears in Chapter 3, “Juris-
1. The online version of the Inventory was updated in July 2009. See http://jnet.ao.dcn/
Judges/Magistrate_Judges/Authority/Inventory_of_United_States_Magistrate_Judge_Dutie
s_July_2009.html. The Administrative Office also provides an online web page summarizing
diction,” of the Legal Manual for U.S. Magistrate Judges, published by the
Administrative Office.
A magistrate judge may conduct
1. bail proceedings and detention hearings. 18 U.S.C. §§ 3041, 3141–
3148; 28 U.S.C. § 636(a)(2). (See supra section 1.03: Release or deten-
tion pending trial.)
2. arraignments, and may take not guilty pleas in felony cases.2 28
U.S.C. § 636(b)(1)(A). (See supra section 1.07: Arraignment and plea.)
3. trial, judgment, and sentencing in a petty offense case; for other
misdemeanors, the defendant’s express consent to be tried before a
magistrate judge in writing or orally on the record is required. The de-
fendant must also specifically waive trial, judgment, and sentencing
by a district judge. See Fed. R. Crim. P. 58(b)(2)(E) and (3)(A); 18
U.S.C. § 3401(b); 28 U.S.C. § 636(a)(3)–(5). A judgment of conviction
or sentence by a magistrate judge may be appealed to the district
court. 18 U.S.C. § 3402. Fed. R. Crim. P. 58 governs trials and appeals
of misdemeanors and petty offenses. (See generally infra section
2.03: Trial outline—criminal.)
4. pretrial matters:
(a) A magistrate judge may hear and determine non-dispositive pre-
trial matters in felony cases,3 including discovery and appoint-
ment of counsel. A district court may reconsider a magistrate
judge’s ruling on a non-dispositive matter if it is “clearly errone-
ous or contrary to law.” 28 U.S.C. § 636(b)(1)(A) and Fed. R. Crim.
P. 59(a).
(b) A magistrate judge may hear and submit to the district court pro-
posed findings of fact and recommended determinations of dis-
positive pretrial matters, such as a motion to suppress evidence
or to dismiss an indictment. 28 U.S.C. § 636(b)(1)(B) and Fed. R.
Crim. P. 58(b)(1). A district court must make a de novo determina-
tion of those portions of proposed findings and recommenda-
more recent decisions and articles relating to the duties and authority of magistrate judges
at http://jnet.ao.dcn/Judges/Magistrate_Judges/Authority/Decisions.html.
2. Note that your circuit may allow a magistrate judge to take a plea of guilty in a felony
case if the defendant consents. See Inventory of United States Magistrate Judge Duties 124–
26. It is recommended that this consent be in writing and expressly waive the right to enter
the plea before an Article III judge. It is also advisable for the district court, at the start of the
sentencing hearing, to state on the record that it, too, accepts the defendant’s plea of guilty,
based upon information provided at the plea hearing and contained in the presentence re-
port.
3. The Supreme Court held that decisions touching the core trial features of a felony case
may be delegated to a magistrate judge only if expressly authorized by statute. Gomez v.
United States, 490 U.S. 858 (1989).
4. The Ninth Circuit held that neither 28 U.S.C. § 636 nor 18 U.S.C. § 3401 authorizes a
magistrate judge to conduct probation revocation hearings in a felony case without the de-
fendant’s consent. See United States v. Colacurcio, 84 F.3d 326, 329–34 (9th Cir. 1996) (re-
versed). See also United States v. Curry, 767 F.2d 328, 331 (7th Cir. 1985) (magistrate judge
not authorized by 28 U.S.C. § 636(b)(3) to conduct probation revocation hearings without the
defendant’s consent); Banks v. United States, 614 F.2d 95, 97–98 (6th Cir. 1980) (same).
However, the Sixth Circuit held that § 3401(i) does not require a defendant’s consent when a
magistrate judge is designated to conduct a hearing to revoke supervised release in a felony
case. United States v. Waters, 158 F.3d 933, 938–39 (6th Cir. 1998) (declining to extend hold-
ing of Colacurcio to revocation of supervised release). Cf. United States v. Azure, 539 F.3d
904, 907–10 (8th Cir. 2008) (record must reflect that district court “designated” magistrate
judge to conduct revocation hearings pursuant to § 3401(i), but defendant may waive right to
challenge designation by failing to object); United States v. Sanchez-Sanchez, 333 F.3d 1065,
1069 (9th Cir. 2003) (section 3401(i) “must be strictly adhered to” and requires order from
district court).
Introduction
This section is intended to serve as a guide to district judges, and to magis-
trate judges who are authorized to conduct change of plea hearings by con-
sent,1 when they conduct the formal plea taking, whether it occurs before or
after review of the presentence report. It is important to emphasize that,
while the plea of guilty is entered at the Rule 11 proceeding, the court may
defer deciding whether to accept the terms of a plea agreement until after
review of the presentence report.2 If after review of the report the district
court rejects an agreement made pursuant to Rule 11(c)(1)(A) or (C), the
court shall give the defendant the option to withdraw the plea. In either
event, the judge’s goal in taking the plea must be to establish that the de-
fendant is competent, that the plea is free and voluntary, that the defen-
dant understands the charges and penalties, and that there is a factual ba-
sis for the plea.
This section is not intended to be all-inclusive. Circumstances may re-
quire that additional matters be established of record. In some cases,
moreover, the court may find it necessary to resolve disputes about the pre-
sentence report before determining whether a plea agreement is accept-
able. See infra section 4.01: Sentencing procedure.
Taking pleas from defendants who do not speak English raises problems
beyond the obvious language barrier. Judges should be mindful not only of
the need to avoid using legalisms and other terms that interpreters may
have difficulty translating, but also of the need to explain such concepts as
the right not to testify and the right to question witnesses, which may not be
familiar to persons from different cultures. See 28 U.S.C. § 1827 regarding
use of certified interpreters.
Some courts have developed Application for Permission to Enter Plea of
Guilty forms and Written Plea Agreement forms. If used, such forms do not
obviate the need for complete oral proceedings in open court that meet the
requirements of Fed. R. Crim. P. 11.
Outline
[Note: Before proceeding with the hearing, the court may want to ask the
prosecutor if there are any victims of the offense and, if so, whether the gov-
ernment has fulfilled its duty to notify them of the hearing and their right to
3. If there are many victims who want to be heard, the court may need to “fashion a rea-
sonable procedure to give effect to [their right to be heard] that does not unduly complicate
or prolong the proceedings.” 18 U.S.C. § 3771(d)(2).
4. If the defendant lacks counsel, you must advise the defendant of the right to an attor-
ney. See supra section 1.02: Assignment of counsel or pro se representation; Fed. R. Crim. P.
11(b)(1)(D).
5. An oath (or affirmation) is not required by Fed. R. Crim. P. 11, but is strongly recom-
mended to avoid any subsequent contention in a proceeding under 28 U.S.C. § 2255 that the
defendant did not answer truthfully at the taking of the plea because he or she was not
sworn.
6. If the case involves a felony offense being prosecuted by information rather than in-
dictment, and if a waiver of indictment has not previously been obtained in open court (see
Fed. R. Crim. P. 7(b)), refer to supra section 1.06: Waiver of indictment.
7. Note that a plea agreement may contain factual stipulations which, unless part of a
Rule 11(c)(1)(C) agreement, are not binding under the Rules or the Guidelines. However,
some cases have held that a factual stipulation that directly affected the severity of the sen-
tence should have been construed as a Rule 11(e)(1)(C) agreement, or that the stipulation
was otherwise relied on by the parties so that it should have been followed or the defendant
allowed to withdraw the plea. See, e.g., United States v. Bohn, 959 F.2d 389 (2d Cir. 1992);
United States v. Torres, 926 F.2d 321 (3d Cir. 1991); United States v. Kemper, 908 F.2d 33 (6th
Cir. 1990); United States v. Jeffries, 908 F.2d 1520 (11th Cir. 1990); United States v. Mandell,
905 F.2d 970 (6th Cir. 1990). See also Guideline Sentencing: An Outline of Appellate Case
Law § IX.A.4 (Federal Judicial Center 2002). Courts are advised to discuss any such stipula-
tions before accepting the plea and to warn the defendant that the court might not follow
them and that the defendant will not be allowed to withdraw the plea.
guilty and impose a sentence that is more severe than you may an-
ticipate?
6. [If any or all of the terms of the plea agreement are pursuant to
Rule 11(c)(1)(A) or (C):]
Do you understand that if I choose not to follow the terms of the
plea agreement [if some, but not all, terms are binding, identify
those terms], I will give you the opportunity to withdraw your
plea of guilty, and that if you choose not to withdraw your plea, I
may impose a more severe sentence, without being bound by the
plea agreement [or the specific terms rejected by the court]?
7. [Inquire of defense counsel] Were all formal plea offers by the
government conveyed to the defendant? [If the answer is no, take
a recess to allow time for counsel to consult with the defendant.]8
F. If there is no formal plea agreement, ask the attorneys whether the prose-
cutor made any formal plea agreement offers and, if so, whether those
offers were conveyed to the defendant. [If offers have not been con-
veyed, take a recess to allow time for counsel to consult with the defen-
dant].9
G. Whether or not there is a plea agreement, ask the defendant:
Has anyone attempted in any way to force you to plead guilty (nolo
contendere) or otherwise threatened you? Has anyone made any
promises or assurances of any kind to get you to plead guilty (other
than those that are in the plea agreement)? Are you pleading guilty of
your own free will because you are guilty?
[See Fed. R. Crim. P. 11(b)(2)].
8. See Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012) (“defense counsel has the duty to
communicate formal offers from the prosecution to accept a plea on terms and conditions
that may be favorable to the accused.”); Lafler v. Cooper, 132 S. Ct. 1376, 1383–86 (2012)
(“when inadequate assistance of counsel caused nonacceptance of a plea offer and further
proceedings led to a less favorable outcome,” defendant had claim for ineffective assistance
of counsel). See also Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010) (“the negotiation of a
plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to ef-
fective assistance of counsel”). If a more favorable plea offer has lapsed, or defense coun-
sel’s advice to reject an offer will lead to “a less favorable outcome,” defendants may “show
prejudice from ineffective assistance of counsel . . . [by] demonstrat[ing] a reasonable prob-
ability they would have accepted the earlier plea offer had they been afforded effective as-
sistance of counsel. Defendants must also demonstrate a reasonable probability the plea
would have been entered without the prosecution canceling it or the trial court refusing to
accept it . . . . To establish prejudice in this instance, it is necessary to show a reasonable
probability that the end result of the criminal process would have been more favorable by
reason of a plea to a lesser charge or a sentence of less prison time.” Frye, 132 S. Ct. at 1409.
9. See supra note 8 and accompanying text.
10. In Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010), the Supreme Court held that a de-
fense attorney has the duty to advise a defendant of the possible immigration consequences
of a guilty plea. Although Padilla is directed at advice given by counsel, the Judicial Confer-
ence of the United States has approved an amendment to Rule 11(b)(1) to add new subsec-
tion (O), which would require a court to warn that, “if convicted, a defendant who is not a
United States citizen may be removed from the United States, denied citizenship, and de-
nied admission to the United States in the future.” This amendment would take effect on
Dec. 1, 2013, if not changed or rejected by the Supreme Court or the U.S. Congress. Cf. United
States v. Akinsade, 686 F.3d 248, 254 (4th Cir. 2012) (district court’s “general and equivocal
admonishment [was] insufficient to correct counsel’s affirmative misadvice that Akinsade’s
crime was not categorically a deportable offense. More importantly, the admonishment did
not ‘properly inform’ Akinsade of the consequence he faced by pleading guilty: mandatory
deportation. . . . Here, the district court did not elicit a direct response to the deportation ad-
monishment, but instead asked if Akinsade understood a list of generalized warnings of
which deportation was a part.”); United States v. Bonilla, 637 F.3d 980, 983–86 (9th Cir. 2011)
(citing Padilla, the court held defense counsel’s failure to warn defendant that he faced de-
portation by pleading guilty until after defendant had done so was a “fair and just reason”
under Rule 11(d)(2)(B) that would allow defendant to withdraw plea).
11. In addition to various state and local laws that may place restrictions on convicted
sex offenders, the Adam Walsh Child Protection and Safety Act of 2006 (“The Act”), Pub. L. No.
109-248, 120 Stat. 587, established a national sex offender registration system that requires
certain sex offenders to register in their jurisdiction of residence after release from prison
(or after sentencing if not incarcerated). See 42 U.S.C. §§ 16901–16902 & 16911–16929 (the
Sex Offender Registration and Notification Act). Failure to register or update registration
can result in fines or imprisonment under 18 U.S.C. § 2250. The Act also provided for the
possibility that, rather than being released at the conclusion of their sentence, some con-
victed sex offenders could be subject to civil commitment as a “sexually dangerous person”
under 18 U.S.C. § 4248.
Although not required to do so by Rule 11, in light of Padilla, courts should consider pro-
viding some warning to defendants of the possible collateral consequences of a conviction
for a sexual offense. See, e.g., United States v. Youngs, 687 F.3d 56, 61–63 & n.6 (2d Cir. 2012)
(although due process and Rule 11 do not require warning defendants about the possibility
of civil commitment as a sexually dangerous person, “it is a potential consequence that
could affect defendants’ assessment of the costs and benefits of a guilty plea, and alerting
defendants to it on the record could forestall later claims by defendants that they were mis-
advised by counsel concerning the relative costs and benefits of the plea.”). Cf. Bauder v.
Dept. of Corrections, State of Fla., 619 F.3d 1272, 1274-75 (11th Cir. 2010) (citing Padilla in
holding that defense counsel’s affirmative misrepresentation that defendant would not be
exposed to state’s civil commitment law after his sentence ended was ineffective assistance
of counsel that warranted postconviction relief).
3. If applicable, that the court may require the defendant to forfeit cer-
tain property to the government.
4. If the offense involved fraud or other intentionally deceptive practices,
that the court may order the defendant to provide notice of the con-
viction to victims of the offense. See 18 U.S.C. § 3555.
5. That for each offense, the defendant must pay a special assessment
of $100 ($25 for a Class A misdemeanor, $10 for Class B, $5 for Class C
or infraction) required by 18 U.S.C. § 3013.
Fed. R. Crim. P. 11(b)(1).
J. Ask the defendant:
Do you understand those possible consequences of your plea that I
have just gone over with you?
K. Inform the defendant that his or her sentence will be determined by a
combination of advisory Sentencing Guidelines, possible authorized de-
partures from those guidelines, and other statutory sentencing factors.
Fed. R. Crim. P. 11(b)(1)(M).
L. Ask the defendant:
1. Have you and your attorney talked about how these advisory Sen-
tencing Guidelines might apply to your case?
[Note: If there is a plea agreement that a specific sentence will be im-
posed (Fed. R. Crim. P. 11(c)(1)(C)), skip to question 4.]
2. Do you understand that the court will not be able to determine
the advisory guideline range for your case until after the presen-
tence report has been completed and you and the government
have had an opportunity to challenge the reported facts and the
application of the guidelines recommended by the probation of-
ficer, and that the sentence ultimately imposed may be different
from any estimate your attorney may have given you?
3. Do you also understand that, after your initial advisory guideline
range has been determined, the court has the authority in some
circumstances to depart upward or downward from that range,
and will also examine other statutory sentencing factors, under 18
U.S.C. § 3553(a), that may result in the imposition of a sentence
that is either greater or lesser than the advisory guideline sentence?
4. Do you also understand that parole has been abolished and that
if you are sentenced to prison you will not be released on parole?
M. Ask the defendant:
1. Do you also understand that under some circumstances you or
the government may have the right to appeal any sentence that I
impose?
[If the plea agreement involves a waiver of the right to appeal the sen-
tence, ask the defendant:]
2. Do you understand that by entering into this plea agreement and
entering a plea of guilty, you will have waived, or given up, your
right to appeal or collaterally attack all or part of this sentence?
(The court should discuss the specific terms of the waiver with the
defendant to ensure that the waiver is knowingly and voluntarily en-
tered into and that the defendant understands the consequences.
Fed. R. Crim. P 11(b)(1)(N).12)
N. Ask the defendant:
1. Do you understand
(a) that you have a right to plead not guilty to any offense
charged against you and to persist in that plea;
(b) that you would then have the right to a trial by jury;
(c) that at trial you would be presumed to be innocent and the
government would have to prove your guilt beyond a reason-
able doubt;
(d) that you would have the right to the assistance of counsel for
your defense—appointed by the court if necessary—at trial and
every other stage of the proceeding, the right to see and hear
all the witnesses and have them cross-examined in your de-
fense, the right on your own part to decline to testify unless
you voluntarily elected to do so in your own defense, and the
right to compel the attendance of witnesses to testify in your
defense?13
Do you understand that should you decide not to testify or put
on any evidence, these facts cannot be used against you?
2. Do you further understand that by entering a plea of guilty (nolo
contendere), if that plea is accepted by the court, there will be no
trial and you will have waived, or given up, your right to a trial as
well as those other rights associated with a trial as I just described
them?
See Fed. R. Crim. P. 11(b(1)(B) to (F).
O. Inform the defendant of the nature of the charge(s) to which he or she is
pleading guilty (nolo contendere) by reading or summarizing the in-
dictment (information). Then
12. Note that the waiver may not be enforceable if the sentence is not in accordance
with the terms of the plea agreement.
13. Although it is not required as part of the Rule 11 colloquy, the court may inform the
defendant of the right under Rule 17(c)(1)to compel the production of documents from wit-
nesses by subpoena.
1. further explain the essential elements of the offense, i.e., what the
government would be required to prove at trial;14 and/or (except in
pleas of nolo contendere)
2. have the defendant explain and assent to the facts constituting the
crime(s) charged.
See Fed. R. Crim. P. 11(b)(1)(G).
P. In the case of a plea of guilty (including an Alford plea15), have the govern-
ment counsel make a representation concerning the facts the govern-
ment would be prepared to prove at trial (to establish an independent
factual basis for the plea). See Fed. R. Crim. P. 11(b)(3)].
If the defendant’s plea is nolo contendere, he or she is neither admitting
nor denying guilt.16 Fed. R. Crim P. 11(b)(3) is therefore not applicable.
The court may wish to consider having the government make a represen-
tation concerning the facts of the case.
Q. If there is a plea agreement involving dismissal of other charges, or an
agreement that a specific sentence will be imposed, and if consideration
of the agreement is to be deferred, ask the defendant:
Do you understand that if you plead guilty, a presentence report
will be prepared, and I will then consider whether to accept the
plea agreement, and that if I decide to reject the plea agreement,
you will then have an opportunity to withdraw your plea and
change it to not guilty?
R. Ask the defendant:
How do you now plead to the charge: guilty or not guilty?
S. Before accepting the defendant’s plea, if there are victims of the offense
present, allow them the opportunity “to be reasonably heard.” 18 U.S.C.
§ 3771(a)(4).
T. If you are satisfied with the responses given during the hearing, make
the following finding on the record:
It is the finding of the court in the case of United States v. ______
that the defendant is fully competent and capable of entering an
14. Reference may be made to the standard or pattern jury instructions normally used
in your court.
15. North Carolina v. Alford, 400 U.S. 25 (1970). See also United States v. Tunning, 69
F.3d 107, 110–14 (6th Cir. 1995) (discussing establishment of factual basis for Alford plea and
difference between Alford plea and plea of nolo contendere).
16. The plea of nolo contendere is never entertained as a matter of course. Fed. R. Crim.
P. 11(a)(1) provides that the plea may be entered “with the court’s consent.” Rule 11(a)(3)
provides further that before accepting the plea “the court must consider the parties’ views
and the public interest in the effective administration of justice.” In general, courts accept a
plea of nolo contendere only in certain types of cases involving nonviolent crimes where
civil implications may arise from a guilty plea.
[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3),
any victim of the offense has the right to notice of “any public court proceed-
ing . . . involving the crime . . . of the accused,” and to attend that proceeding.
It may be advisable to ask the prosecutor if there are any victims and, if so,
whether the government has fulfilled its duty to notify them. Also, any vic-
tims who are present at the plea hearing have a right “to be reasonably
heard.” § 3771(a)(4).] 2
1. Effective December 1, 1999, Fed. R. Crim. P. 11(a) substituted “organization” for “cor-
poration.” Organization is defined in 18 U.S.C. § 18 as “a person other than an individual.”
2. If there are many victims who want to be heard, the court may need to “fashion a rea-
sonable procedure to give effect to [their right to be heard] that does not unduly complicate
or prolong the proceedings.” 18 U.S.C. § 3771(d)(2).
6. if applicable, that the court may require the organization to forfeit cer-
tain property to the government;
7. if the offense involved fraud or other intentionally deceptive practices,
that the court may order the organization to provide notice of the
conviction to victims of the offense (see 18 U.S.C. § 3555);
8. if appropriate, the right to be represented by an attorney;
9. that the organization has the right to plead not guilty or to persist in
that plea if it has already been made;
10. that the organization has a right to be tried by a jury and at that trial
has the right to
(a) the assistance of counsel;
(b) confront and cross-examine witnesses against the organization;
11. that if the organization pleads guilty, there will be no further trial of
any kind;
12. that by pleading guilty for the organization, the representative of the
organization waives the organization’s right to trial;
13. that the court will ask the representative of the organization ques-
tions about the offense before the court and that if he or she answers
these questions, under oath, on the record, and in the presence of
counsel, the answers may later be used against the representative in
a prosecution for perjury or false statement; and
14. the essential elements of the offense that are involved, and whether
the representative understands what the government must prove.
C. The court will then inquire
1. whether the plea is voluntarily made on behalf of the organization
and not as a result of force, threats, or promises apart from a plea
agreement; and
2. whether there is a plea agreement and, if so, what the agreement is.
D. If the court is satisfied with the representative’s responses, ask how he or
she pleads: guilty, not guilty, or nolo contendere.
E. If the plea is guilty, follow your normal Fed. R. Crim. P. 11 procedure for
establishing the factual basis in the case. If the plea is nolo contendere,
the court may wish to consider having the government make a represen-
tation concerning the facts of the case.
F. Make the required findings concerning the establishment of the plea,
which should include findings concerning items A.1, A.2, A.3, and A.4
above, relating to the propriety of taking the plea from the representa-
tive of the organization. Allow any victims of the offense who are present
to be “reasonably heard.” 18 U.S.C. § 3771(a)(4).
G. Make a finding on the guilt of the organization after the guilty or nolo
contendere plea.
1. Fed. R. Crim. P. 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).
2. Note also that Fed. R. Evid. 615 does not authorize the exclusion of “a person author-
ized by statute to be present.”
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. Fed. R.
Crim. P. 30(b).
18. Closing argument by prosecution, closing argument by defense, re-
buttal by prosecution. Fed. R. Crim. P. 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 in-
structed before closing arguments. Fed. R. Crim. P. 30(c).
20. Rule on objections to the charge and make any appropriate addi-
tional charge. Provide an opportunity for counsel to object out of the
jury’s hearing and, on request, out of the jury’s presence. Fed. R.
Crim. P. 30(d).
21. If you are going to discharge the alternate jurors, excuse and thank
them.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. Fed. R.
Crim. P. 24(c)(3).
22. Instruct the jury to go to the jury room and commence its delibera-
tions.
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 con-
vinced, direct them to resume their deliberations. Consider giving
your circuit’s approved Allen-type charge to the jury before declaring
a mistrial.
3. In a case involving potentially lengthy jury deliberations, judges may wish to con-
sider retaining at least one alternate juror.
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, or on your
own motion (see infra section 2.09: Verdict—criminal). Fed. R. Crim.
P. 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 de-
fendant 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.
A. When required
1. Fed. R. Crim. P. 23(c):
In all cases 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.”
2. Fed. R. Crim. P. 12(d) and (f)—Ruling upon Motions:
“When factual issues are involved in deciding a motion, the court
must state its essential findings on the record.” (Emphasis added.)
B. Form
1. Fed. R. Crim. P. 23(c) provides that, after a trial without a jury, “the
court must state its specific findings of fact in open court or in a writ-
ten decision or opinion.”
2. Fed. R. Crim. P. 12(d) provides that “[w]hen factual issues are in-
volved in deciding a motion, the court must state its essential find-
ings on the record.”
3. Fed. R. Crim. P. 12(f) provides that “[a]ll proceedings at a motion
hearing, including any findings of fact or conclusions of law made
orally by the court, must be recorded by a court reporter or a suitable
recording device.”
Peremptory challenges
Judges should be aware of the cases, beginning with Batson v. Kentucky, 476
U.S. 79 (1986), that prohibit peremptory challenges based on race. Batson
has been extended to cover a criminal defendant’s peremptory challenges,
Georgia v. McCollum, 505 U.S. 42 (1992), and a defendant may object to race-
based exclusions whether or not he or she is the same race as the challenged
juror, Powers v. Ohio, 499 U.S. 400 (1991). Peremptory strikes based on gen-
der are also prohibited. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).
The Supreme Court has left it to the trial courts to develop rules of pro-
cedure and evidence for implementing these decisions. It has, however, set
out a three-step inquiry for resolving a Batson challenge (see Purkett v. Elem,
514 U.S. 765, 767 (1995)):
1. At the first step of the Batson inquiry, the burden is on the opponent
of a peremptory challenge to make out a prima facie case of discrimi-
nation. A prima facie case may be shown where (1) the prospective
juror is a member of a cognizable group, (2) the prosecutor used a
peremptory strike to remove the juror, and (3) the totality of the cir-
cumstances raises an inference that the strike was motivated by the
1.“[A] defendant satisfies the requirements of Batson’s first step by producing evidence
sufficient to permit the trial judge to draw an inference that discrimination has occurred.”
The defendant does not have to show that it was “more likely than not” that discrimination
occurred. Johnson, 545 U.S. at 170.
2. For a summary of procedures that courts developed for criminal cases in the first two
years after Batson, see Bench Comment, nos. 3 & 4 (1988). For a discussion of voir dire prac-
tices in light of Batson, see Chambers to Chambers, vol. 5, no. 2 ( Federal Judicial Center
1987).
Anonymous juries3
In rare cases, a district court may determine that a jury should be impaneled
anonymously because of concerns about juror safety or tampering. The
court may enter an order to prevent disclosure of names, addresses, places
of employment, and other facts that might reveal the identity of jurors.4 The
Benchbook Committee neither advocates nor discourages use of an anony-
mous jury but notes that courts must be careful to take steps to minimize po-
tential prejudice to defendants from this procedure. Listed below are the
main “rules” that may be summarized from circuit court decisions on this is-
sue.5
1. There must be a strong reason to believe the jury needs protection.
For example, anonymous juries have been approved in cases involv-
ing organized crime figures who, currently or previously, attempted
to or did influence, intimidate, or harm witnesses, jurors, or judges.
Extensive media coverage may be considered in combination with
other factors.
2. The court must take reasonable precautions to minimize any preju-
dicial effects on the defendant and ensure that fundamental rights
to an impartial jury and fair trial are not infringed. For example, the
court should
(a) ensure that the voir dire allows the defendant to adequately as-
sess the prospective jurors and uncover possible bias as to the de-
fendant or the issues in the case. The court should conduct a
thorough and searching voir dire, which could include use of writ-
ten questionnaires.
3. Note that, with one exception, anonymous juries are not allowed in capital cases. See
18 U.S.C. § 3432 (defendant charged with capital offense must be given list of potential ju-
rors and witnesses three days before trial, “except that such list of the veniremen and wit-
nesses need not be furnished if the court finds by a preponderance of the evidence that pro-
viding the list may jeopardize the life or safety of any person”) (exception added Sept. 13,
1994).
4. The Third Circuit held that it is within the trial court’s discretion to hold an eviden-
tiary hearing on whether the facts warrant an anonymous jury. It also held that the court is
not required to make findings and give reasons on the record for using an anonymous jury,
but suggested that doing so is the “better practice.” See United States v. Eufrasio, 935 F.2d 553
(3d Cir. 1991).
5. Most circuits have now ruled on this issue and approved the use of anonymous juries
under appropriate circumstances. See United States v. Shryock, 342 F.3d 948, 971 (9th Cir.
2003); United States v. Talley, 164 F.3d 989, 1001–02 (6th Cir. 1999); United States v. DeLuca,
137 F.3d 24 (1st Cir. 1998); United States v. Darden, 70 F.3d 1507 (8th Cir. 1995); United
States v. Krout, 66 F.3d 1420 (5th Cir. 1995); United States v. Edmond, 52 F.3d 1080 (D.C. Cir.
1995) (per curiam); United States v. Ross, 33 F.3d 1507 (11th Cir. 1994); United States v.
Crockett, 979 F.2d 1204 (7th Cir. 1992); United States v. Paccione, 949 F.2d 1183 (2d Cir. 1991)
(also discussing several prior Second Circuit cases); United States v. Scarfo, 850 F.2d 1015
(3d Cir. 1988).
(b) give plausible and nonprejudicial reasons to ensure that the ex-
planation for jury anonymity does not adversely reflect on the de-
fendant. The court may, for example, assure jurors that this is a
common practice or that it is to protect them from unwanted me-
dia attention.6 It may be advisable to repeat the explanation dur-
ing jury instructions and before jury deliberation, to stress that
the need for anonymity should have no effect on the verdict.
6. For examples of explanations, see Ross, 33 F.3d 1507, at n.27; United States v. Tutino,
883 F.2d 1125 (2d Cir. 1989); Scarfo, 850 F.2d 1015, at Appendix; United States v. Barnes, 604
F.2d 121 (2d Cir. 1979).
[Note: Under the Crime Victims’ Rights Act, 18 U.S.C. § 3771(a)(2) and (3),
any victim of the offense has the right to notice of “any public court proceed-
ing . . . involving the crime . . . of the accused,” and to attend that proceeding.
It may be advisable to ask the prosecutor if there are any victims and, if so,
whether the government has fulfilled its duty to notify them.]
A. The following outline for an initial in-depth voir dire examination of the
entire panel by the court assumes that
1. if there are affirmative responses to any questions, follow-up ques-
tions will be addressed to the juror(s) (at sidebar, if such questions
concern private or potentially embarrassing matters); and
2. the court and counsel have been furnished with the name, address,
age, and occupation of each prospective juror.
B. If the court conducts the entire examination, it should require counsel to
submit proposed voir dire questions before trial to permit the court to in-
corporate additional questions at the appropriate places in this
outline.
1. Have the jury panel sworn. NOTE
2. Explain to the jury panel that the purpose of the voir dire ex- Fed. R. Crim P.
24(a)(1) provides
amination is that the court “may
(a) to enable the court to determine whether any prospective examine prospec-
juror should be excused for cause; and tive jurors or may
permit the attor-
(b) to enable counsel for the parties to exercise their individual neys for the parties
judgment with respect to peremptory challenges—that is, to do so.”
challenges for which no reason need be given.
3. Explain to prospective jurors that presenting the evidence is
expected to take days, and ask if this presents a
special problem for any of them.
4. Read or summarize the indictment.
5. Ask if any member of the panel has heard or read anything about the
case.
6. Ask counsel for the government to introduce himself or herself and
counsel associated with the trial, as well as all the witnesses who will
testify in the government’s presentation of its case in chief. Ask if the
jurors
(a) know any of these persons;
Members of the jury: Now that you have been sworn, I will give you some
preliminary instructions to guide you in your participation in the trial.
Duty of the jury
It will be your duty to find from the evidence what the facts are. You and you
alone will be the judges of the facts. You will then have to apply to those
facts the law as the court will give it to you. You must follow that law
whether you agree with it or not.
Nothing the court may say or do during the course of the trial is intended
to indicate, or should be taken by you as indicating, what your verdict
should be.
Evidence
The evidence from which you will find the facts will consist of the testimony
of witnesses, documents and other things received into the record as exhibits,
and any facts that the lawyers agree to or stipulate to or that the court may
instruct you to find.
Certain things are not evidence and must not be considered by you. I will
list them for you now.
1. Statements, arguments, and questions by lawyers are not evidence.
2. Objections to questions are not evidence. Lawyers have an obligation
to their clients to make objections when they believe evidence being
offered is improper under the rules of evidence. You should not be in-
fluenced by the objection or by the court’s ruling on it. If the objec-
tion is sustained, ignore the question. If it is overruled, treat the an-
swer like any other. If you are instructed that some item of evidence is
received for a limited purpose only, you must follow that instruction.
3. Testimony that the court has excluded or told you to disregard is not
evidence and must not be considered.
4. Anything you may have seen or heard outside the courtroom is not
evidence and must be disregarded. You are to decide the case solely
on the evidence presented here in the courtroom.
There are two kinds of evidence: direct and circumstantial. Direct evi-
dence is direct proof of a fact, such as testimony of an eyewitness. Circum-
stantial evidence is proof of facts from which you may infer or conclude that
other facts exist. I will give you further instructions on these as well as other
matters at the end of the case, but keep in mind that you may consider both
kinds of evidence.
It will be up to you to decide which witnesses to believe, which witnesses
not to believe, and how much of any witness’s testimony to accept or reject. I
will give you some guidelines for determining the credibility of witnesses at
the end of the case.
Rules for criminal cases
As you know, this is a criminal case. There are three basic rules about a
criminal case that you must keep in mind.
First, the defendant is presumed innocent until proven guilty. The indict-
ment brought by the government against the defendant is only an accusation,
nothing more. It is not proof of guilt or anything else. The defendant there-
fore starts out with a clean slate.
Second, the burden of proof is on the government until the very end of
the case. The defendant has no burden to prove his or her innocence, or to
present any evidence, or to testify. Since the defendant has the right to remain
silent, the law prohibits you from arriving at your verdict by considering that
the defendant may not have testified.
Third, the government must prove the defendant’s guilt beyond a reason-
able doubt. I will give you further instructions on this point later, but bear in
mind that in this respect a criminal case is different from a civil case.
Summary of applicable law
In this case the defendant is charged with ____________. I will give you de-
tailed instructions on the law at the end of the case, and those instructions
will control your deliberations and decision. But in order to help you follow
the evidence, I will now give you a brief summary of the elements of the of-
fense that the government must prove to make its case.
[Summarize the elements of the offense.]
2. For another sample instruction on note taking, see Civil Litigation Management
Manual 374–75 (Judicial Conference of the United States 2001).
3. Some judges may wish to give some instructions before closing arguments. See Fed. R.
Crim. P. 30.
Introductory note
Fed. R. Crim. P. 30 outlines the procedure for the submission and considera-
tion of the parties’ requests for specific jury instructions. It requires
1. that the court inform the parties before closing arguments of its pro-
posed action upon the instructions requested by counsel; and
2. that the court give counsel adequate opportunity to object to the
court’s instructions outside the hearing of the jury or, if requested,
outside the presence of the jury.
There is no prescribed method for the court to settle on its final set of in-
structions. Some courts hold an on-the-record charge conference with coun-
sel during trial. At that conference the tendered instructions are discussed
and are accepted, rejected, or modified by the court.
Other courts, without holding a charge conference, prepare a set of pro-
posed instructions from those tendered by counsel. These courts then give a
copy of the proposed instructions to all counsel and permit counsel to take
exception to the instructions. Thereafter, the court may revise its instruc-
tions if convinced by counsel’s objections that the instructions should be
modified.
Still other courts require counsel to confer during trial and to agree, to the
extent that they can, on the instructions that should be given. The court
then considers only those instructions upon which the parties cannot agree.
The court may, of course, give an instruction to the jury that neither
party has tendered.
While the court is free to ignore tendered instructions and to instruct the
jury sua sponte, the usual practice is for the court to formulate the final in-
structions with the assistance of counsel and principally from the instruc-
tions counsel tendered.
Local practice varies as to whether a written copy of the instructions is
given to the jury for use during its deliberations. Many courts always give the
jury a written copy of the instructions. Some courts have the instructions re-
corded as they are given in court and permit the jury to play them back in
the jury room. Some courts do neither but will repeat some or all of the in-
structions in response to a request from the jury.
Note that the court may instruct the jury either before or after closing ar-
guments, or at both times. Fed. R. Crim. P. 30(c).
Outline of instructions
Instructions delivered at the end of a case consist of three parts: first, gen-
eral rules that define and control the jury’s duties in a criminal case; second,
definitions of the elements of the offenses charged in the indictment (in-
formation); third, rules and guidelines for jury deliberation and return of
verdict. Many circuits have developed model or pattern jury instructions,
and judges should consult the instructions that have been prepared for use
in their circuits.
A. General rules
1. Outline the duty of the jury:
(a) to find the facts from admitted evidence;
(b) to apply the law as given by the court to facts as found by the jury;
and
(c) to decide the case on the evidence and the law, regardless of per-
sonal opinions and without bias, prejudice, or sympathy.
2. Clearly enunciate the three basic rules in a criminal case:
(a) presumption of innocence;
(b) burden of proof on government; and
(c) proof beyond a reasonable doubt.
3. Indicate the evidence to be considered:
(a) sworn testimony of witnesses;
(b) exhibits;
(c) stipulations; and
(d) facts judicially noticed.
4. Indicate what is not evidence:
(a) arguments and statements of counsel;
(b) questions to witnesses;
(c) evidence excluded by rulings of the court; and
(d) indictment (information).
B. Define with precision and with specific consideration of the law of your
circuit the elements of each offense to be submitted to the jury and of
each defense the jury is to consider.
C. Jury procedure
1. Explain the selection and duty of the foreperson.
2. Explain the process of jury deliberation:
(a) rational discussion of the evidence by all jurors for the purpose of
reaching a unanimous verdict;
(b) each juror is to decide the case for himself or herself in the context
of the evidence and the law, with proper consideration of other
jurors’ views;
(c) jurors may reconsider their views if persuaded by rational discus-
sion but not solely for the sake of reaching a unanimous verdict.
3. The verdict must be unanimous on each count (explain verdict form
if used).1
4. The jury’s communications with the court during deliberations must
be in writing and signed by the foreperson.
5. The jury must not disclose how it stands numerically or otherwise on
the question of guilt or innocence.
6. Consider giving the jury the following instruction:
During your deliberations, you must not communicate with or
provide any information to anyone by any means about this case.
You may not use any electronic device or media, such as a tele-
phone, cell phone, smart phone, iPhone, Blackberry, or computer,
the Internet, any Internet service, or any text or instant messaging
service, any Internet chat room, blog, or website such as Face-
book, MySpace, LinkedIn, YouTube or Twitter, to communicate
to anyone any information about this case or to conduct any re-
search about this case until I accept your verdict. In other words,
you cannot talk to anyone on the phone, correspond with anyone,
or electronically communicate with anyone about this case. You
can only discuss the case in the jury room with your fellow jurors
during deliberations. I expect you will inform me as soon as you
become aware of another juror’s violation of these instructions.
You may not use these electronic means to investigate or
communicate about the case because it is important that you de-
cide this case based solely on the evidence presented in this court-
room. Information on the Internet or available through social
media might be wrong, incomplete, or inaccurate. You are only
permitted to discuss the case with your fellow jurors during delib-
erations because they have seen and heard the same evidence you
have. In our judicial system, it is important that you are not influ-
enced by anything or anyone outside of this courtroom. Other-
wise, your decision may be based on information known only by
1. If special verdict forms or jury interrogatories are used, instruct the jury on how to
answer them. Such devices should be used with caution, but they may be useful in multide-
fendant or other complex cases, or where jury findings (e.g., drug weights) affect statutory
maximums. Note that special verdicts and jury interrogatories in criminal cases are not
covered by the criminal rules of procedure or by statute, so the court should be familiar with
the law of its circuit.
you and not your fellow jurors or the parties in the case. This
would unfairly and adversely impact the judicial process.2
A juror
who violates these restrictions jeopardizes the fairness of these
proceedings, and a mistrial could result, which would require the
entire trial process to start over.
D. Consider providing the jury with a written copy or transcript of the jury
instructions.
2. Taken from the “Proposed Model Jury Instructions: The Use of Electronic Technology
to Conduct Research on or Communicate about a Case,” prepared by the Judicial Conference
Committee on Court Administration and Case Management (June 2012). See Memorandum,
“Juror Use of Social Media” from Judge Julie A. Robinson, Chair, Committee on Court Ad-
ministration and Case Management to all United States District Court Judges (Aug. 6, 2012).
See also “Strategies for Preventing Jurors’ Use of Social Media During Trials and Delibera-
tions” in Jurors’ Use of Social Media During Trials and Deliberations: A Report to the Judi-
cial Conference Committee on Court Administration and Case Management 5–10 (Federal
Judicial Center Nov. 22, 2011), available at http://cwn.fjc.dcn/public/pdf.nsf/lookup/
DunnJuror.pdf/$file/DunnJuror.pdf.
[Note: In the event the jury will not be present at the opening of
the verdict, it is recommended that each juror sign the verdict
form(s).]
(g) Recess the proceedings, instructing the jury and all interested
parties to return at a fixed time for the opening and formal recep-
tion of the verdict. Instruct that, in the interim, no member of the
jury should have any conversation with any other person, includ-
ing any other juror, concerning the verdict or any other aspect of
the case.
(h) When court is again convened for reception of the verdict, have
the clerk hand the sealed envelope to the jury foreperson.
(i) Instruct the foreperson to open the envelope and verify that the
contents consist of the jury’s verdict form(s) without modification
or alteration of any kind.
(j) Follow the steps or procedures outlined in paragraphs A.5
through A.12, supra.
Effective December 1, 2005, Fed. R. Crim. P. 29, 33, and 34 were amended to
eliminate the restriction that a court may extend the time to make a motion
under these rules only if it acts within the seven-day period the defendant
has to file the motion or seek an extension. Motions for extending time to file
under these rules are now covered by Rule 45(b).
Also note that if the motion occurs during a “public court proceeding,”
any victims of the offense must be notified and allowed to attend. If the mo-
tion is granted and the defendant might be released, victims would have the
right to “be reasonably heard.” See 18 U.S.C. § 3771(a)(2)–(4).
The case law on this subject will vary from circuit to circuit. The sug-
gested procedure may be varied to conform with the law of the circuit, the
practice of the district, and the preferences of the individual judge.
whether any motion for new trial should be granted in case the
judgment of acquittal is vacated or reversed on appeal. The rea-
sons for that determination must be specified. See Fed. R. Crim.
P. 29(d)(1).
(c) When the court grants a motion for judgment of acquittal, it
should consider whether the evidence was sufficient to sustain
conviction of a lesser offense necessarily included in the offense
charged.
3. Standard
(a) The motion shall be granted for “any offense for which the evi-
dence is insufficient to sustain a conviction.” Fed. R. Crim. P.
29(a).
(b) In resolving the motion, the court should not assess the credibil-
ity of witnesses, weigh the evidence, or draw inferences of fact
from the evidence.1 The role of the court is simply to decide
whether the evidence viewed in the light most favorable to the
government was sufficient for any rational trier of fact to find guilt
beyond a reasonable doubt.
Caution: Consult your circuit’s law for any special rules governing
consideration of the evidence.
B. Fed. R. Crim. P. 33—Motion for New Trial
1. Timing
Except as noted below with respect to newly discovered evidence, the
motion must be made within seven days after a verdict or finding of
guilty, unless the court fixes a longer period.
Exception: A motion for a new trial based on newly discovered evi-
dence may be made only within three years after the verdict or find-
ing of guilty. If made during the pendency of an appeal, the motion
may be granted only if the case is remanded.
2. Procedure
Whether an oral hearing will be held or the motion will be decided on
written submissions alone is a matter within the discretion of the
court. The propriety of holding a hearing will depend necessarily on
the grounds invoked. This motion may be made only by the defen-
dant and cannot be granted by the court sua sponte. Fed. R. Crim. P.
33(b).
3. Standard
(a) Any alleged error in the trial that could be raised on appeal may
be raised on a motion for a new trial, and the motion may be
1. Of course, these restrictions do not apply in a bench trial. However, the standard for
deciding the motion remains the same.
granted “if the interest of justice so requires,” that is, if letting the
verdict stand would result in a miscarriage of justice. Fed. R. Crim.
P. 33(a).
(b) When the motion for a new trial is made on the ground that the
verdict is contrary to the weight of the evidence, the motion
should be granted only in exceptional cases where the evidence
preponderates heavily against the verdict. Unlike a motion for
judgment of acquittal, a motion for a new trial does not require
the court to view the evidence in the light most favorable to the
government. Some circuits hold that the court has broad power to
weigh the evidence and consider the credibility of witnesses.
However, other circuits reject the idea of the court as a “thirteenth
juror” and limit the extent to which courts may reweigh the evi-
dence. Courts should look to the law of their circuit on this issue.
(c) For a motion based on newly discovered evidence, a defendant
must show that the evidence is newly discovered and was un-
known to the defendant at the time of trial; failure to discover the
evidence sooner was not due to lack of diligence by the defen-
dant; the evidence is material, not merely cumulative or im-
peaching; and the new evidence would likely lead to acquittal at a
new trial. Many circuits have held that such motions are disfa-
vored and should be granted with caution.
4. Findings and conclusions
The court’s findings and conclusions should be placed on the record.
An order denying a new trial is appealable as a final decision under
28 U.S.C. § 1291. An order granting a new trial may be appealed by
the government under 18 U.S.C. § 3731.
C. Fed. R. Crim. P. 34—Motion for Arrest of Judgment
1. Timing
The motion must be made within seven days after a verdict or find-
ing of guilty, or after a plea of guilty or nolo contendere, unless the
court fixes a longer period.
2. Procedure
Whether an oral hearing will be held or the motion will be decided on
written submissions alone is a matter within the discretion of the
court. Despite the fact that this motion raises jurisdictional issues, af-
ter trial it cannot be granted by the court sua sponte but may only be
made by the defendant. Compare Fed. R. Crim. P. 12(b)(2) (same is-
sues raised here may be raised pretrial by either the defendant or the
court).
3. Standard
The motion is resolved upon examination of the “record” (i.e., the in-
dictment or information, the plea or the verdict, and the sentence).
The court does not consider the evidence produced at trial. A motion
for arrest of judgment is based only on one or both of the following
contentions: (i) the indictment or information does not charge an of-
fense or (ii) the court was without jurisdiction over the offense
charged. Fed. R. Crim. P. 34(a)(1) and (2).
[Note: The Crime Victims’ Rights Act, 18 U.S.C. § 3771(e), specifies that when
the victim of a crime is deceased, “the representatives of the crime victim’s
estate, family members, or any other persons appointed as suitable by the
court, may assume the crime victim’s rights.” Those rights include notifica-
tion of and attendance at “any public court proceeding . . . involving the
crime,” and the opportunity to be “reasonably heard” at any such proceed-
ing “involving release, plea, [or] sentencing.” § 3771(a)(2)–(4). The court
may want to consult with the prosecution about who will assume the victim’s
rights, especially if there are a large number of persons who want to do so.]
This section provides an outline of procedures for imposing the death
penalty authorized in various federal statutes. Capital cases can raise com-
plex issues, and a number of problems may arise. This outline is offered to
provide basic guidance for consideration.1
Effective Sept. 13, 1994, the Federal Death Penalty Act of 1994 estab-
lished procedures for imposing any death penalty under federal law (except
for prosecutions under the Uniform Code of Military Justice). See 18 U.S.C.
§§ 3591–3595. These provisions largely duplicate, but did not originally re-
1. Judges may want to look at appellate court decisions that have examined various as-
pects of 18 U.S.C. §§ 3591–3595. See, e.g., Jones v. United States, 119 S. Ct. 2090 (1999), aff’g
132 F.3d 232 (5th Cir. 1998); United States v. Rodriguez, 581 F.3d 775 (8th Cir. 2009) (af-
firmed); In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93 (2d Cir. 2008)
(affirmed in relevant part); United States v. Sampson, 486 F.3d 13 (1st Cir. 2007) (affirmed);
United States v. Fulks, 454 F.3d 410 (4th Cir. 2006) (affirmed); United States v. Paul, 217 F.3d
989 (8th Cir. 2000) (affirmed); United States v. Battle, 173 F.3d 1343 (11th Cir. 1999) (af-
firmed); United States v. Webster, 162 F.3d 308 (5th Cir. 1998) (affirmed); United States v.
McVeigh, 153 F.3d 1166 (10th Cir. 1998) (affirmed). It may also be useful to examine deci-
sions on death penalty procedures under 21 U.S.C. § 848. See United States v. Tipton, 90 F.3d
861 (4th Cir. 1996) (affirmed); United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996) (re-
manded); United States v. Flores, 63 F.3d 1342 (5th Cir. 1995) (affirmed); United States v.
Chandler, 996 F.2d 1073 (11th Cir. 1993), vacated in part, 193 F.3d 1297 (1999).
The Federal Judicial Center has prepared a “Resource Guide for Managing Capital
Cases, Volume I: Federal Death Penalty Trials,” by Molly Treadway Johnson and Laurel L.
Hooper. The guide contains information on many more aspects of handling a capital case
than can be covered here, is available on the Center’s website (www.fjc.gov or http://cwn.fjc.
dcn/library/fjc_catalog.nsf), and is periodically updated. The website also includes a large
collection of orders and other selected case materials from judges who have handled capital
cases. Additional resource materials are added as they become available. See “Managing
Federal Death Penalty Trials” in the FJC Resource Catalog at http://cwn.fjc.dcn/
library/fjc_catalog.nsf. The Center also issued a series of Chambers to Chambers in 1995
and 1996 that discussed legal and practical issues unique to capital cases. The series drew
upon the experiences of district court judges who have handled death penalty cases under
section 848; the first issue includes the names of judges who have tried capital cases and
may be contacted.
place,2 the authorization and procedure for imposing the death penalty for
certain drug-related killings in 21 U.S.C. § 848(e). However, effective March
9, 2006, the procedural sections in § 848(g)–(r) were deleted, and capital of-
fenses under § 848(e) will now be prosecuted under §§ 3591–3595. The in-
formation provided in this outline applies to capital cases under both stat-
utes unless noted otherwise.
Killing someone in the course of a drug-related offense under 21 U.S.C.
§ 848(e) appears to be a separate offense that must be charged and proved,
not merely an aggravating factor to be considered in sentencing on the un-
derlying drug offense.3 When the death penalty is sought for an offense un-
der 18 U.S.C. § 3591, the court should determine whether the relevant activ-
ity is a separate offense—or an element of the offense —that must be
charged and proved.
A. Pretrial
1. Pursuant to 18 U.S.C. § 3005, when a defendant has been indicted
for a capital offense, the court “shall promptly,4 upon the defen-
dant’s request,” assign two counsel to the defendant, “of whom at
least one shall be learned in the law applicable to capital cases.”5
2. Nothing in the Federal Death Penalty Act of 1994 specifically repealed or superseded
any part of section 848, and there are some differences in the statutes’ procedures and re-
quirements.
3. Subsection (e) was added to 21 U.S.C. § 848 by the Anti-Drug Abuse Act of 1988, Pub. L.
No. 10-690, § 7001(a), 102 Stat. 4181, 4387–88. The catch line of § 7001(a) was “Elements of
Offense.” Moreover, other subsections refer to being found guilty of or pleading guilty to
“an offense under subsection (e).” 21 U.S.C. § 848(i)(1), (j), (n).
4. The Judicial Conference of the United States recommends that the court appoint
qualified counsel “at the outset” of a capital case, rather than waiting for the government to
provide written notice that it intends to seek the death penalty. See Recommendation 1(b) in
Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of De-
fense Representation, May 1998 (prepared by the Subcommittee on Federal Death Penalty
Cases, Committee on Defendant Services and adopted by the Judicial Conference Septem-
ber 15, 1998). See also In re Sterling-Suarez, 306 F.3d 1170, 1173 (1st Cir. 2002) (“learned
counsel is to be appointed reasonably soon after the indictment and prior to the time that
submissions are to be made to persuade the Attorney General not to seek the death pen-
alty”); United States v. Boone, 245 F.3d 352, 359 (4th Cir. 2001) (right to two counsel “be-
comes available upon indictment for a capital crime and not upon the later decision by the
government to seek or not to seek the death penalty”). Cf. United States v. Waggoner, 339
F.3d 915, 917 (9th Cir. 2003) (agreeing in dicta that right commences “promptly upon the de-
fendant’s request after the defendant is indicted for a capital crime”). But cf. United States v.
Casseus, 282 F.3d 253, 256 (3d Cir. 2002) (finding harmless error where defendants’ requests
for second counsel made promptly after indictment were not acted upon until after gov-
ernment decided not to seek death penalty a month and a half later).
5. See Chambers to Chambers, vol. 10, no. 1 (Federal Judicial Center 1995), for a discus-
sion of whether more than two attorneys may be appointed under § 3005. See also McCullah,
76 F.3d at 1098 (no abuse of discretion to refuse to appoint additional counsel where district
court found that two were adequate). For a discussion of compensation of counsel, investiga-
tors, and expert witnesses, see Chambers to Chambers, vol. 10, no. 1. Note that 21 U.S.C.
2. The government must provide written notice to the court and the de-
fendant that it will seek the death penalty, and it must identify which
statutory and nonstatutory aggravating factors it intends to prove at
“a reasonable time” before trial or acceptance by the court of a guilty
plea.6 18 U.S.C. § 3593(a); 21 U.S.C. § 848(h)(1).
3. At least three days before commencement of trial, the defendant
must receive a copy of the indictment and a list of the names and ad-
dresses of venire members and witnesses, unless the court finds by a
preponderance of the evidence that providing the list may endanger
any person. 18 U.S.C. § 3432.
4. Arrange for a jury venire large enough to accommodate additional
peremptory challenges (twenty for each side, see Fed. R. Crim. P.
24(b)(1)), the length of time required for trial and penalty phases,
and the likelihood that alternate jurors will be needed.7
5. Consider having venire members complete a juror questionnaire,
and consider providing attorneys with the responses prior to jury se-
lection.
6. After familiarizing the venire members with jury service, explain the
two-stage decision process. The following is a suggested explanation.
§ 848(q)(10) was amended by the Antiterrorism and Effective Death Penalty Act of 1996 (ef-
fective April 24, 1996) to limit attorneys’ fees and costs for other services. In cases not af-
fected by the Act, compensation for appointed counsel is not limited by Criminal Justice Act
maximums. Effective March 9, 2006, § 848(q) has effectively been replaced by new 18 U.S.C.
§ 3599 (“Counsel for financially unable defendants”).
6. For § 848(e) offenses prior to March 9, 2006, the government must identify and prove
one aggravating factor from § 848(n)(1) plus at least one factor from § 848(n)(2)–(12). Sec-
tion 3591 contains three groups of offenses for which death is authorized, and each group has
a separate list of aggravating factors from which the government must identify and prove at
least one. Additional factors from any list may be used, but only the one is required to im-
pose the death penalty. See § 3593(e). The Fourth and Tenth Circuits have held that allowing
the jury to find duplicative aggravating factors is prohibited and would require a new pen-
alty phase. See Tipton, 90 F.3d at 898–901 (but affirming sentence because error was harm-
less in this case); McCullah, 76 F.3d at 1111–12 (remanded: prosecution submitted both
§ 841(n)(1)(C) and § 841(n)(1)(D), which substantially overlap, and a nonstatutory aggravat-
ing factor that overlapped § 841(n)(1)(C)). See also United States v. McCullah, 87 F.3d 1136,
1137–38 (10th Cir. 1996) (upon denial of rehearing and rehearing en banc, clarifying that
overlapping aggravating factors are improper if supported by same underlying conduct,
thus distinguishing Flores). But cf. Flores, 63 F.3d at 1372–73 (defendant’s conduct supported
finding of both n(1)(A) (intentionally killed the victim) and n(1)(C) (intentionally engaged
in conduct intending that the victim be killed) factors—defendant personally participated in
the killings and hired others to help). The Fourth and Tenth Circuits rejected the claim that
allowing the government to introduce nonstatutory aggravating factors violated separation
of powers principles.
7. See Chambers to Chambers, vol. 10, no. 1 (Federal Judicial Center 1995), for discussion
of this issue and of the juror questionnaire mentioned in the next paragraph.
8. The term “recommend,” used in the statutes, should be avoided as potentially mis-
leading. See Caldwell v. Mississippi, 472 U.S. 320 (1985). The court is without authority to re-
ject the recommendation. See 18 U.S.C. § 3594; 21 U.S.C. § 848(l).
9. The option of a jury-imposed sentence of life without release is not available under
§ 848. Section 3593(e) allows the jury to “recommend” such a sentence, and under § 3594
“the court shall sentence defendant accordingly.” See also infra note 21.
10. See Chambers to Chambers, vol. 10, no. 1 (Federal Judicial Center 1995), for a discus-
sion of jury selection, including “death-qualifying” the jury. See also United States v. Purkey,
428 F.3d 738, 750–52 (8th Cir. 2005) (discussing use of juror questionnaire and affirming ex-
clusion of three potential jurors); United States v. McVeigh, 153 F.3d 1166, 1205–11 (10th Cir.
1998) (discussing voir dire issues regarding “death-qualifying” and pretrial publicity);
United States v. Tipton, 90 F.3d 861, 870–81 (4th Cir. 1996) (affirming district court’s method
of voir dire and the dismissal for cause of some jurors who opposed the death penalty);
United States v. Flores, 63 F.3d 1342, 1353–56 (5th Cir. 1995) (same).
11. Witherspoon v. Illinois, 391 U.S. 510, 521–22 (1968).
12. Wainwright v. Witt, 469 U.S. 412, 424 (1985), quoting Adams v. Texas, 448 U.S. 38, 45
(1980). See also Lockhart v. McCree, 476 U.S. 162 (1986) (allowing a juror who could not per-
form in the penalty phase to be excluded from the guilt/innocence phase).
13. See Witherspoon, 391 U.S. 510.
14. See Morgan v. Illinois, 504 U.S. 719 (1992).
15. Gray v. Mississippi, 481 U.S. 648 (1987).
8. When the jury retires to consider its verdict, do not discharge the al-
ternate jurors.16 Instruct the alternates to avoid discussing the case
with anyone. If an alternate juror replaces a juror after deliberations
have begun, instruct the jury to begin its deliberations anew. Fed. R.
Crim. P. 24(c)(3).
B. After verdict or plea
1. No presentence report should be prepared. 18 U.S.C. § 3593(c); 21
U.S.C. § 848(j).
2. Unless the defendant moves for a hearing without a jury and the
government consents, the hearing must be before a jury.
(a) If the defendant was convicted after a jury trial, the hearing
should be before the jury that determined guilt, unless such jury
has been discharged for good cause.
(b) If the defendant was convicted upon a plea or after a bench trial,
a jury and alternates should be impaneled in accordance with
Fed. R. Crim. P. 24(c).
18 U.S.C. § 3593(b); 21 U.S.C. § 848(i)(1).
3. Instruct the jury about the purpose of the hearing.17
(a) Inform the jurors that they will be required to make specific find-
ings about possible aggravating circumstances, that any or all of
them may make a finding regarding any mitigating circum-
stances,18 and that if certain findings are made, they will be re-
quired to decide whether the defendant should be sentenced to
death (or, if the offense is under § 3591, to life imprisonment
without the possibility of release).
16. Fed. R. Crim. P. 24(c)(3) gives district courts the discretion to retain alternate jurors
when the jury retires. Note that §§ 3593(b) and 848(i) do not allow a jury of fewer than
twelve members unless the parties stipulate to a lesser hearing before the conclusion of the
sentencing hearing. See Chambers to Chambers, vol. 10, no. 1 (Federal Judicial Center 1995),
for a discussion of retaining the alternate jurors.
17. Samples of jury instructions that have been used in death penalty cases are avail-
able from the Federal Judicial Center’s Information Services Office.
18. Under §§ 3593(d) and 848(k), specific findings about mitigating factors are not re-
quired. However, both sections state that such findings “may be made by one or more mem-
bers of the jury,” and the Eleventh Circuit held that “[s]ection 848(k) requires that the jury be
instructed that it has the option to return written findings of mitigating factors.” United
States v. Chandler, 996 F.2d 1073, 1087 (11th Cir. 1993), vacated in part, 193 F.3d 1297 (1999).
The court also noted that under § 848(q)(3)(B), the reviewing court is to consider whether
such findings, or any failure to find a mitigating factor, are supported by the record, but held
that this section requires only “that if the jury exercises its option, we must review those
findings.” 996 F.2d at 1087. There is no similar provision regarding appellate review of
mitigating circumstances in § 3595(c)(2). Nevertheless, it is recommended that the trial
judge require such findings.
19. See, e.g., United States v. McVeigh, 153 F.3d 1166, 1211–16 (10th Cir. 1998) (discussing
standards for admission of mitigating evidence).
20. Sample jury instructions and forms are available from the Federal Judicial Center’s
website (www.fjc.gov). Follow the links for the “Resource Guide for Managing Capital Cases,
Volume I: Federal Death Penalty Trials.”
21. This outline and the accompanying form are based on the understanding that, if the
jurors disagree about the findings required for a death sentence, a sentence other than
death will be imposed. 18 U.S.C. § 3594; 21 U.S.C. § 848(l). For § 3591 offenses, the jury is
specifically instructed that it may choose a sentence of life imprisonment without release or
(c) For the jurors even to consider the death penalty, they must
(i) for § 3591 offenses: answer yes to the required § 3592(b), (c),
or (d) question (question 1 on the suggested form);
(ii) for § 848(e) offenses (committed before March 9, 2006): answer
yes to the § 848(n)(1) question (question 1 on the suggested
form) and to at least one of the § 848(n)(2)–(12) questions
(question 2 on the suggested form).
(d) If the jury’s findings about aggravating factors permit considera-
tion of a death sentence, the jury should then consider the de-
fendant’s evidence of mitigating factors.
(e) A mitigating factor should be taken as true if it has been estab-
lished by a preponderance of the evidence. Distinguish between
the reasonable doubt and preponderance tests.
(f) The jurors should discuss the evidence about mitigating factors
but are not required to reach a unanimous decision. A finding of a
mitigating factor may be made by one or more jurors, and any
member of the jury who finds the existence of a mitigating factor
by a preponderance of the evidence may consider such a factor
established, regardless of whether any other juror agrees.
(g) In considering whether the death penalty should be imposed,
each juror should consider only those aggravating factors that
have been found to exist beyond a reasonable doubt by unani-
mous vote, but each juror should consider any mitigating factors
that have been proved by a preponderance of the evidence to his
or her own satisfaction.
a lesser sentence. However, there is no similar choice for the jury in § 848, and no require-
ment that the jurors be told the consequences of failure to unanimously agree on a sentence
of death. See Chandler, 996 F.2d at 1089 (“district court is not required to instruct the jury on
the consequences of the jury’s inability to reach a unanimous verdict”).
The Supreme Court held that when a defendant’s future dangerousness is an issue and
the only alternative sentence to death is life with no possibility of parole, due process enti-
tles the defendant to tell the jury that the defendant will never be released from prison.
Simmons v. South Carolina, 114 S. Ct. 2187, 2196–201 (1994). The Court later held that such
an instruction should have been given where the prosecution introduced evidence of the de-
fendant’s future dangerousness, even though the prosecutor did not specifically argue future
dangerousness as a reason to impose the death penalty. Kelly v. South Carolina, 534 U.S.
246, 252–57 (2002). Cf. United States v. Stitt, 250 F.3d 878, 888–92 (4th Cir. 2001) (distin-
guishing Simmons because, although government used defendant’s future dangerousness
as an aggravating factor, there was still possibility of departure under the guidelines to less
than a life sentence); United States v. Flores, 63 F.3d 1342, 1368–69 (5th Cir. 1995) (affirmed:
same, and government focused on danger defendant “would pose while still in prison,” not
after release). See also O’Dell v. Netherland, 521 U.S. 151, 159–67 (1997) (declining to apply
Simmons retroactively).
22. Although § 3593(e) states that the jury may unanimously recommend “some other
lesser sentence,” § 3594 implies that the court may still impose a sentence of life without re-
lease. See also Jones v. United States, 119 S. Ct. 2090, 2098–100 (1999) (indicating that “oth-
erwise” clause of § 3594 leaves sentencing determination to court if jury cannot agree
unanimously on a sentence).
23. This is explicitly stated in § 848(k) and is implicit in § 3593(e), given the jury’s
authorization to choose a lesser sanction.
7. If the jury finds in favor of a death sentence, the court must impose
such a sentence. Otherwise:
(a) For § 3591 offenses: If the jury unanimously finds in favor of life
imprisonment without the possibility of release, the court must
impose that sentence; otherwise, the court shall impose any other
sentence authorized by law. See 18 U.S.C. § 3594.
(b) For § 848(e) offenses (committed before March 9, 2006): The court
may impose any other sentence authorized by law. 21 U.S.C.
§ 848(l).
24. One of the aggravating factors listed in 21 U.S.C. § 848(n)(1) must be found if the
death penalty is to be imposed. It is hard to imagine a conviction under § 848(e) that does
not subsume a factor under (n)(1). Nevertheless, the statute requires that the existence of an
(n)(1) factor be considered at the penalty stage. It appears that subsection (n)(1) was drafted
in contemplation of application to a wider range of criminal conduct than § 848(e) encom-
passes. For the Supreme Court’s treatment of a similar statute, see Lowenfield v. Phelps, 484
U.S. 231 (1988). See also United States v. McCullah, 76 F.3d 1087, 1109–10 (10th Cir. 1996)
(recognizing this aspect of § 848(e) but finding it meets requirements of Lowenfield); United
States v. Flores, 63 F.3d 1342, 1369–72 (5th Cir. 1995) (same); United States v. Chandler, 996
F.2d 1073, 1092–93 (11th Cir. 1993) (same), vacated in part, 193 F.3d 1297 (1999). Note that
the Fourth and Tenth Circuits have held that it is error to find duplicative (n)(1) factors. See
supra note 6.
[Repeat the above for as many separate mitigating factors as the defen-
dant alleges.]
5. Do you find unanimously that the aggravating factor(s) to which you
have provided a unanimous “yes” answer above sufficiently outweigh(s)
the mitigating factor(s) to justify a sentence of death, or in the absence of
a mitigating factor, that the aggravating factor(s) alone is (are) sufficient
to justify a sentence of death, and that the defendant should be sen-
tenced to death?
Yes ❏ No ❏
IF THE ANSWER TO QUESTION 5 IS “NO” AND A § 3591 OFFENSE IS
INVOLVED, ASK:
Do you find unanimously that the defendant should be sentenced to life
imprisonment without possibility of release?
Yes ❏ No ❏
Each of the undersigned jurors hereby certifies that:
1. in reaching my decisions about the sentence in this case, I did not
consider the race, color, religious beliefs, national origin, or sex of ei-
ther the defendant, [defendant’s name], or the victim, [victim’s
name]; and
2. I would have made the same decision about the sentence for this
crime no matter what the race, color, religious beliefs, national origin,
and sex of the defendant, [defendant’s name], and the victim, [vic-
tim’s name].
(Foreperson)
I. Introduction
Before the promulgation of the Sentencing Guidelines, federal courts sen-
tenced defendants in an indeterminate sentencing regime. Judges had dis-
cretion to impose any fair sentence within the bounds of the statutory
minimum and maximum. Because of parole, the sentence a judge imposed
was often quite different from the time a defendant served. This discretion
and indeterminacy led to congressional concern about unwarranted federal
sentencing disparity and to the enactment of The Sentencing Reform Act of
1984 (SRA). The SRA was passed with bipartisan and near-unanimous Sen-
ate support under the leadership of Senators Kennedy, Thurmond, Hatch,
and Biden. Its goals were greater fairness and transparency in federal sen-
tencing. The SRA brought about “truth in sentencing” by eliminating parole,
created the Sentencing Commission, and charged the Commission with
crafting sentencing guidelines. The Commission, in turn, promulgated
guidelines that provide a sentencing range appropriate for the “heartland”
of typical cases, based on the defendant’s offense level and criminal history.
Judges were required to select sentences from within the guidelines range
except in unusual circumstances.
In 2005, the Supreme Court issued United States v. Booker, 543 U.S. 220
(2005). Booker, reinforced by subsequent Supreme Court decisions,1
changed the sentencing landscape by making the Sentencing Guidelines
advisory rather than mandatory. This advisory status notwithstanding, a
judge’s sentencing calculation must begin with an accurate determination
of the applicable sentencing range under the guidelines. The judge must
then consider whether any departures from the guidelines would be consis-
tent with guideline policy statements and commentary.2 See 18 U.S.C.
1. See Dorsey v. United States, 132 S. Ct. 2321 (2012); Setser v. United States, 132 S. Ct.
1463 (2012); Southern Union Co. v. United States, 132 S. Ct. 2344 (2012); Tapia v. United
States, 131 S. Ct. 2382 (2011); Pepper v. United States, 131 S. Ct. 1229 (2011); Dillon v. United
States, 130 S. Ct. 2683 (2010); Nelson v. United States, 555 U.S. 350 (2009); Spears v. United
States, 555 U.S. 261 (2009); Irizarry v. United States, 553 U.S. 708 (2008); Gall v. United
States, 552 U.S. 38 (2007); Kimbrough v. United States, 552 U.S. 85 (2007); Rita v. United
States, 551 U.S. 338 (2007).
2. See, e.g., United States v. McBride, 434 F.3d 470, 477 (6th Cir. 2006) (“Because Guide-
line ‘departures’ are a part of the appropriate Guideline range calculation, we believe that
Guideline departures are still a relevant consideration for determining the appropriate
Guideline sentence.”); United States v. Jordi, 418 F.3d 1212, 1215 (11th Cir. 2005) (“the appli-
cation of the guidelines is not complete until the departures, if any, that are warranted are
appropriately considered”). See also United States v. Lofink, 564 F.3d 232, 240–42 (3d Cir.
2009) (failure to rule on defendant’s departure motion constitutes procedural error—merits
of departure motions must be considered separately from resolution of variance requests).
But see United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005) (“framing of the issue as
§ 3553(a)(4),(5); see also, e.g., USSG § 5K1.1. Finally, the judge should con-
sider the other factors listed in 18 U.S.C. § 3553(a) in order to arrive at the
final sentence.3
Note that any reference in this section to a “departure” means a depar-
ture from the calculated guideline range that is consistent with applicable
policy statements and guideline commentary. In contrast, a “variance” re-
fers to a sentence that is outside of the advisory guideline range based on
the application of other § 3553(a) factors, as authorized by Booker.4 A final
sentence may include both a departure and a variance if warranted by the
circumstances.
one about ‘departures’ has been rendered obsolete by our recent decisions applying
Booker”); United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006) (in light of Booker,
court would “treat such so-called departures as an exercise of post-Booker discretion to sen-
tence a defendant outside of the applicable guidelines range” and subject it to a “unitary
review for reasonableness, no matter how the district court styles its sentencing decision”).
3. The Guidelines provide that courts must follow the three-step sentencing protocol set
out in Booker. See USSG § 1B1.1 (“[1] The court shall determine the kinds of sentence and
the guideline range as set forth in the guidelines . . . . [2] The court shall then consider . . .
Specific Offender Characteristics and Departures and any other policy statements or com-
mentary in the guidelines that might warrant consideration . . . . [3] The court shall then
consider the applicable factors in 18 U.S.C. § 3553(a) taken as a whole.” For a general discus-
sion of the relationship between the manner in which a sentencing hearing is conducted
and the interests of the parties involved, see D. Brock Hornby, Speaking in Sentences, 14
Green Bag 2D 147 (2011).
4. A court may also base a variance on a disagreement with the policy underpinning a
guideline. See Spears, 555 U.S. at 264; Kimbrough, 552 U.S. at 109–11.
5. Note that the presentence report shall not include any diagnostic opinions that if dis-
closed may disrupt a program of rehabilitation, sources of information obtained upon a
promise of confidentiality, or any other information that may result in harm to the defen-
dant or others if disclosed. Fed. R. Crim. P. 32(d)(3). The probation officer’s final recommen-
dation as to sentence, previously withheld, may now be disclosed pursuant to local rule or at
the court’s discretion. Fed. R. Crim. P. 32(e)(3).
B. Notice of departure
If you are contemplating a departure from the advisory guideline range on a
ground not identified as such either in the presentence report or in a pre-
hearing submission, you must provide “reasonable notice” to the parties
and identify the departure grounds. Fed. R. Crim. P. 32(h); Burns v. United
States, 501 U.S. 129 (1991). Although it is not required, it may be advisable to
also provide notice of previously unidentified grounds that may support a
non-guidelines sentence.6
6. The Supreme Court held that Rule 32(h)’s notice requirement does not apply to vari-
ances. Irizarry v. United States, 553 U.S. 708, 714 (2008). The Court added, however, that
“[s]ound practice dictates that judges in all cases should make sure that the information pro-
vided to the parties in advance of the hearing, and in the hearing itself, has given them an
adequate opportunity to confront and debate the relevant issues. We recognize that there
will be some cases in which the factual basis for a particular sentence will come as a surprise
to a defendant or the Government. The more appropriate response to such a problem is not
to extend the reach of Rule 32(h)’s notice requirement categorically, but rather for a district
judge to consider granting a continuance when a party has a legitimate basis for claiming
that the surprise was prejudicial.” The Court further noted that “at sentencing, the parties
must be allowed to comment on ‘matters relating to an appropriate sentence,’ Rule
32(i)(1)(C), and the defendant must be given an opportunity to speak and present mitigation
testimony, Rule 32(i)(4)(A)(ii).” Id. at 715–16 & n.2.
A. Opening
1. Ask:
(a) Will counsel for the government introduce himself/herself?
(b) Will counsel for the defendant introduce himself/herself?
(c) Will the probation officer introduce himself/herself?
(d) [If applicable] Will the interpreter introduce himself/herself?
The courtroom deputy shall swear in the interpreter.
2. Ask both counsel:
(a) I have received the following documents submitted by counsel
in advance of the hearing: (list the documents: e.g., sentencing
memoranda, letters, expert reports).
(b) Do you have any other documents or letters for the court?
3. Ask the prosecutor:
(a) Do you have any witnesses or victims present in the court-
room?
(b) Are you expecting an evidentiary hearing?
(c) [If applicable] Will the victim(s) be making a statement?
4. Ask the defense counsel:
(a) Have you and your client read and discussed the presentence
report (PSR)?
(b) Have you discussed the objections?
(c) Are you expecting an evidentiary hearing?
(d) Do you have any witnesses present in the courtroom?
7. The court has discretion to permit the introduction of evidence. Fed. R. Crim. P.
32(i)(2). Evidentiary hearings should be reserved for occasions in which there is a disputed
issue of fact in the proffer. There is some disagreement among the circuits as to the burden
of production with respect to evidence germane to disputed portions of the PSR.
8. If information that will be relied on in determining the sentence has been withheld
from the presentence report (PSR) pursuant to Fed. R. Crim. P. 32(d)(3), and the summary has
not yet been provided, orally summarize the withheld information (in camera if necessary).
See Fed. R. Crim. P. 32(i)(1)(B).
9. See Fed. R. Crim. P. 32(i)(3)(B). Even if disputed issues will not affect sentencing, it
may be important to resolve them and attach the court’s findings to the PSR because the Bu-
reau of Prisons bases classification decisions on the PSR.
(a) I accept the provisions of the plea agreement (and upon the
motion of the government the following charges are dismissed
____________).10
[or]
(b) I reject the provisions of the plea agreement, and the defen-
dant may withdraw his/her plea. If you do not withdraw your
plea, I may decide the case less favorably than the plea agree-
ment would have required.11
5. After making the preceding findings and calculations, state:
(a) After resolving the objections (if any), I calculate the following
advisory guideline range: the defendant’s offense level is
_____, and the defendant’s criminal history category is _____.
This produces a guidelines range of _____ to _____ months
imprisonment (or probation); a supervised release range fol-
lowing imprisonment of ____ to ____ years; and a fine range
of _______ to _______. The special assessment is ______.
(b) Are there any objections for the record?
C. Departure
1. The court will now consider whether to grant departures from the
guidelines range.
(a) [If a motion pursuant to USSG § 5K1.1 has been filed, you may
wish to call the parties to sidebar to determine whether to close
the courtroom and seal the transcripts, or to consider the motion
in chambers. See USSG § 5K1.1, comment. (backg’d).]
The government has filed a motion for a downward de-
parture for substantial assistance to authorities pursuant
to USSG § 5K1.1 and/or 18 U.S.C. § 3553(e). Will the
government please set forth the facts supporting its mo-
tion?
Does the defendant have any comment on the govern-
ment’s statement?
(b) [If applicable] The government has filed a motion for a down-
ward departure for participation in the early disposition program
pursuant to section 5K3.1 of the guidelines. What is the govern-
ment’s recommendation?
E. Final statements
(See Fed. R. Crim. P. 32(i)(4). Note that, upon motion and for good cause, any
statements made under Rule 32(i)(4) may be heard in camera.)
1. [If a victim is present:] Does the victim wish to make a statement?
2. The defendant has the right to make a statement “or present any
information to mitigate the sentence.” Does the defendant wish
to make a statement?
3. Does the defense counsel have anything to add on behalf of the
defendant?
4. Does the prosecutor wish to make a final statement?
guidelines sentence, explain why you will grant or deny the re-
quest and directly address the arguments made by each party.]
4. [If the sentence includes a term of probation, state the length of
the term and ask counsel to suggest appropriate conditions. See
U.S.S.G. § 5B1.1–1.3; 18 U.S.C. §§ 3561–3564.]
5. [If a sentence of imprisonment is imposed:] I must also consider
whether to impose a term of supervised release.
[Ask counsel and probation for appropriate conditions of super-
vised release. See U.S.S.G. § 5D1.3; 18 U.S.C. § 3583(d).]
G. Imposition of sentence
State:
I will now impose the sentence.
1. [If sentencing to a term of imprisonment:]
(a) The defendant is hereby committed to the custody of the Bu-
reau of Prisons for a term of _____ months. [Ask counsel if
there is a requested BOP institution.]
[or]
(b) The defendant is hereby committed to the custody of the Bu-
reau of Prisons for a term of _____ months and then to
community confinement/home detention for a term of
________ months.
[If applicable, specify whether the sentence imposed on any
count should run concurrently with, consecutive to, or par-
tially consecutive to any other sentence that will be imposed,
that defendant is already subject to, or that defendant may
be facing in another court. See supra subsection II.C.]
(c) [If applicable:] The Court recommends to the Bureau of Pris-
ons that the defendant be placed in an institution with the fol-
lowing programs: [substance abuse treatment, mental health
counseling, vocational training, etc.]
2. Upon release from imprisonment, the defendant is to be placed
on supervised release for a term of _____ years.12 While on super-
12. Supervised release may be required by specific statute. The guidelines also provide
for supervised release if a sentence of more than one year’s imprisonment is imposed. See
USSG § 5D1.1(a); but cf. USSG § 5D1.1, comment (n.1) (authorizing departure from
§ 5D1.1(a) under some circumstances). It may otherwise be imposed at the court’s discretion.
USSG § 5D1.1(b).
13. See permitted conditions of supervised release at USSG § 5D1.3. The court may rec-
ommend that the defendant receive residential substance abuse treatment pursuant to the
provisions of 18 U.S.C. § 3621(b). Note that the court may suspend the mandatory drug test-
ing provision if the defendant poses a low risk of future substance abuse. 18 U.S.C. § 3583(d).
14. Probation is statutorily prohibited for defendants convicted of certain offenses, e.g.,
Class A felonies. See USSG § 5B1.3 for the mandatory, recommended, and discretionary
conditions of probation.
15. See 18 U.S.C. § 3664(f) (outlining the manner and schedule of restitution payments).
If restitution is not ordered, or only partial restitution is ordered, the court must state the
reasons for that decision. 18 U.S.C. § 3553(c). Note that 18 U.S.C. § 3572 states that any
schedule of payments for restitution or fines “shall be set by the court,” and some circuits
have held that this authority may not be delegated. Fines and restitution of more than $2,500
bear interest if not paid within 15 days after the judgment. 18 U.S.C. § 3612(f)(1). If the court
finds that the defendant is unable to pay interest, this requirement may be waived or modi-
fied. Id. § 3612(f)(3). See USSG § 5E1.1.
16. Alternatively, the court may provide a different payment schedule for each victim,
18 U.S.C. § 3664(i), and may apportion liability among the defendants, 18 U.S.C. § 3664(h).
17. 18 U.S.C. § 3572(a); USSG § 5E1.2. See supra note 15 regarding interest on fines.
Note that the maximum amount of a fine is limited to that which is authorized by the jury’s
verdict. Southern Union Co. v. United States, 132 S. Ct. 2344, 2350–52 (2012) (rule of Ap-
prendi applies to criminal fines).
18. Fed. R. Crim. P. 32.2.
I. Conclusion
1. Ask the counselors:
Are there any other matters to resolve in this case?
2. [If the defendant has been sentenced to a term of imprisonment and
was at liberty pending sentencing, ask:]
(a) Does defense counsel request voluntary surrender?23
(b) Does government counsel oppose voluntary surrender?]
3. State:
(a) The defendant is remanded to the custody of the marshal;
[or]
(b) The defendant is to report for service of sentence in the future.
Release conditions previously established continue to apply.
Failure to report for service of sentence is a criminal offense.24
Adjourn.
22. See Fed. R. App. P. 4(b)(1)(A) and 24(a); Fed. R. Crim. P. 32(j)(2); 18 U.S.C. § 3006A.
23. Whether the defendant was permitted to voluntarily surrender affects the defen-
dant’s Bureau of Prisons security designation. See also supra section 2.11: Release or deten-
tion pending sentence or appeal.
24. 18 U.S.C. § 3146(a)(2) (“Whoever . . . knowingly fails to surrender for service of sen-
tence pursuant to a court order shall be punished as provided” in the statute.).
25. Pursuant to the authority granted in 28 U.S.C. § 994(w)(1), the Sentencing Commis-
sion approved Form AO 245B (or 245C for an amended judgment; 245D for revocations;
245E for organizational defendants) as the format courts must use to submit sentencing in-
formation. As amended March 9, 2006, § 994(w)(1) states:
The Chief Judge of each district court shall ensure that, within 30 days following
entry of judgment in every criminal case, the sentencing court submits to the
Commission, in a format approved and required by the Commission, a written re-
port of the sentence, the offense for which it is imposed, the age, race, sex of the of-
B. Statement of reasons
“[A] transcription or other appropriate public record of the court’s statement
of reasons, together with the order of judgment and commitment,” must be
provided to the probation office, to the Sentencing Commission, and, if the
sentence includes a prison term, to the Bureau of Prisons. 18 U.S.C.
§ 3553(c). Under 28 U.S.C. § 994(w)(1), as amended March 9, 2006, courts
must send to the Sentencing Commission a report containing several docu-
ments, including AO Form 245B (Judgment in a Criminal Case), which in-
cludes the statement of reasons and satisfies the requirements of § 3553(c).
If there was a departure or other non-guidelines sentence, include in the
written order of judgment and commitment the specific reasons for sentenc-
ing outside of the advisory guideline range.26
fender, and information regarding factors made relevant by the guidelines. The
report shall also include—
(A) the judgment and commitment order;
(B) the written statement of reasons for the sentence imposed (which
shall include the reason for any departure from the otherwise appli-
cable guideline range and which shall be stated on the written state-
ment of reasons form issued by the Judicial Conference and approved
by the United States Sentencing Commission);
(C) any plea agreement;
(D) the indictment or other charging document;
(E) the presentence report; and
(F) any other information as the Commission finds appropriate.
The information referred to in subparagraphs (A) through (F) shall be submitted by
the sentencing court in a format approved and required by the Commission.
26. 18 U.S.C. § 3553(c)(2). As you did with the statement of reasons, be sure to distinguish
in the written order between departures and non-guidelines sentences (or “variances”) to
facilitate appellate review and data collection.
I. Introduction
Whenever a probationer or a person on supervised release fails to abide by
the conditions of supervision or is arrested for another offense, a revocation
hearing may be ordered. Revocation is mandatory if a probationer or super-
vised releasee possesses a firearm (including a destructive device) or a con-
trolled substance, refuses to comply with required drug testing, or fails three
drug tests in a year.1 See 18 U.S.C. §§ 3565(b), 3583(g). Revocation is also
called for under the Sentencing Guidelines for conduct that constitutes cer-
tain serious offenses. See U.S.S.G. §§ 7B1.1 and 7B1.3, p.s.
Because the proceeding may result in incarceration, particular attention
must be given to ensuring that the probationer or releasee receives substan-
tive and procedural due process. The revocation procedure may be initiated
by the court or at the request of the probation office or the office of the U.S.
attorney. An Order to Show Cause why probation or supervised release
should not be revoked is effective for this purpose.
Federal Rule of Criminal Procedure 32.1(a) requires an initial appear-
ance before a magistrate judge, whether the person is held in custody or ap-
pears in response to a summons. The Advisory Committee Notes to the 2002
amendments state that, if the initial appearance would not be unnecessarily
delayed, it may be combined with the preliminary hearing. Under Rule
32.1(a)(1), the procedures applied at the initial appearance differ depend-
ing on whether the district where the person appears is or is not the district
where the alleged violation occurred or is one that has jurisdiction to hold
the revocation hearing.
At all stages of the proceedings, the probationer or releasee must be in-
formed of the right to retain counsel or to request that one be appointed.
Fed. R. Crim. P. 32.1(a)(3)(B), (b)(1)(B)(i), (b)(2)(D), and (c)(1).
[Note: It is unclear whether, at a revocation hearing, the rights accorded
by the Crime Victims’ Rights Act, 18 U.S.C. § 3771, should be accorded to a
victim of the conduct that caused the violation of probation or release. If the
conduct constituted a federal offense, the CVRA may apply whether or not
there is a separate prosecution.2 Or, if the revocation hearing is considered a
1. The mandatory drug testing and revocation for refusal to comply provisions became
effective September 13, 1994; revocation for failing three drug tests took effect Nov. 2, 2002.
The ex post facto prohibition may prevent the application of those provisions to defendants
who committed their offenses before the effective dates of the provisions.
2. Under § 3771(e), crime victim is defined as “a person directly and proximately
harmed as a result of the commission of a Federal offense.” The rights to notification and
attendance apply to any public court proceeding “involving the crime,” § 3771(a)(1) & (2),
and the right to be heard at such a proceeding applies if it “involv[es] release, plea, [or] sen-
tencing,” § 3771(a)(4). No provision of the CVRA limits its application to an offense that is
prosecuted.
3. Note that under the Federal Courts Administration Act of 1992, a magistrate judge
may revoke, modify, or reinstate probation and modify, revoke, or terminate supervised
release if any magistrate judge imposed the probation or supervised release. 18 U.S.C.
§ 3401(d), (h) (effective Jan. 1, 1993).
Also under the Act, a district judge may designate a magistrate judge to conduct hear-
ings to modify, revoke, or terminate supervised release; to submit proposed findings of fact;
and to recommend a disposition. 18 U.S.C. § 3401(i) (effective Jan. 1, 1993).
4. The statutory provisions for mandatory revocation for refusal to comply with drug
testing and, for supervised releasees, possession of a firearm, were enacted September 13,
1994; mandatory revocation for failing three drug tests was added Nov. 2, 2002. Ex post facto
considerations may prohibit the application of those provisions to defendants whose origi-
nal offenses were committed before the effective dates of the provisions.
5. But note that Fed. R. Crim. P. 32.1(e) requires the production of witness statements
pursuant to the terms of Fed. R. Crim. P. 26.2.
6. The Advisory Committee Notes for the creation of Rule 32.1 in 1979 cited Francis-
chine for this proposition.
as amended Sept. 13, 1994.7 The court must also consider the
provisions of U.S.S.G. § 7B1.3–1.4, p.s. Otherwise, impose any
other sentence that was available under the sentencing provi-
sions “at the time of the initial sentencing.”8 18 U.S.C.
§ 3565(a)(2) (before September 13, 1994, amendment). For de-
fendants initially sentenced under the Sentencing Guidelines,
consider the provisions of U.S.S.G. § 7B1.3–1.4, p.s.
(b) If probation is revoked for possession of drugs or firearms, for re-
fusal of required drug testing, or for failing three drug tests in one
year, sentence the defendant to a term of imprisonment.9 18
U.S.C. § 3565(b) (effective Sept. 13, 1994).10
3. If a determination is made to revoke supervised release:
(a) Require the person to serve in prison11 all or part of the term of
supervised release without credit for time previously served on
post-release supervision, except that the person may not be re-
quired to serve more than five years in prison if the person was
convicted of a Class A felony, more than three years if convicted
of a Class B felony, more than two years if convicted of a Class C or
D felony, or more than one year in any other case. 18 U.S.C.
§ 3583(e)(3). For defendants initially sentenced under the Sen-
tencing Guidelines, consider the provisions of U.S.S.G. § 7B1.3–
1.4, p.s.
7. Ex post facto considerations may require the use of prior law if the defendant commit-
ted the original offense before September 13, 1994.
8. Because of ex post facto considerations, this earlier version of § 3565(a)(2) may be
required if the defendant committed the original offense before September 13, 1994. The
Third, Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits have held that “any other sentence
that was available . . . at the time of the initial sentencing” means the guideline range appli-
cable to the original offense of conviction. Note that some of the sentences in the “Revoca-
tion Table,” U.S.S.G. § 7B1.4, p.s., may exceed the maximum sentences allowed under this
interpretation. See also Guideline Sentencing: An Outline of Appellate Case Law on Se-
lected Issues § VII.A.1 (Federal Judicial Center 2002).
9. This amendment to § 3565 removed the requirement to “sentence the defendant to
not less than one-third of the original sentence.” The Supreme Court resolved a circuit split
by ruling that “original sentence” meant the original guideline range, not the term of pro-
bation. Thus, defendants sentenced before the 1994 amendment could not be sentenced
after revocation to more than the original guideline maximum. United States v. Grand-
erson, 114 S. Ct. 1259, 1263–69 (1994). Ex post facto considerations may limit the length of
the sentence that may be imposed in some circuits for defendants who committed their
original offenses before September 13, 1994.
10. The provision on revocation for failing three drug tests was not added until Nov. 2,
2002.
11. Home confinement may also be imposed “as an alternative” to incarceration. See 18
U.S.C. § 3583(e)(4); U.S.S.G. § 5F1.2.
12. The provision on revocation for failing three drug tests was not added until Nov. 2,
2002.
13. Before September 13, 1994, § 3583 required such defendants “to serve in prison not
less than one-third of the term of supervised release” and only applied to revocation for
drug possession.
14. Before § 3583(h) was added, § 3583(e) did not specifically authorize reimposition of
supervised release after revocation. The circuits disagreed about whether reimposition was
allowed and whether § 3583(h) could be applied retroactively. However, the Supreme Court
resolved that split by holding that reimposition was authorized under § 3583(e)(3) for of-
fenses committed before enactment of § 3583(h). Johnson v. United States, 120 S. Ct. 1795,
1800–07 (2000).
A. Removal of defendant
A defendant who was initially present at trial, or who had pleaded guilty or
nolo contendere, waives the right to be present . . . when the court warns the
defendant that it will remove the defendant from the courtroom for disruptive
behavior, but the defendant persists in conduct that justifies removal from the
courtroom. . . . If the defendant waives the right to be present, the trial may
proceed to completion, including the verdict’s return and sentencing, during
the defendant’s absence.
Fed. R. Crim. P. 43(c)(1)(C) and (2).
The Supreme Court held that a disruptive defendant, after appropriate
warning, may be removed from the courtroom. Illinois v. Allen, 397 U.S. 337,
344 (1970). (The Court also stated that a defendant may be cited for con-
tempt or, “as a last resort,” allowed to remain in the courtroom bound and
gagged. See infra section B: Restraint of defendant.)
When the court is faced with a disruptive defendant:
1. The court should warn the defendant that continuation of the dis-
ruptive conduct will lead to removal of the defendant from the court-
room.1
2. If the disruptive conduct continues, the court should determine
whether it warrants removal of the defendant.2
3. At the beginning of each session, the court should advise the defen-
dant that he or she may return to the courtroom if the defendant as-
sures the court that there will be no further disturbances.
4. The court should consider ways to allow the defendant to communi-
cate with his or her attorney to keep apprised of the progress of the
trial. The court may consider making arrangements to allow the de-
fendant to hear or see the proceedings via electronic means, if avail-
able.
1. One circuit held that, in a multidefendant case, “[n]otice to one defendant is notice to
all present in the courtroom for purposes of Rule 43.” United States v. West, 877 F.2d 281, 287
(4th Cir. 1989). Cf. United States v. Beasley, 72 F.3d 1518, 1530 (11th Cir. 1996) (although dis-
trict court may not have personally warned defendant that he might be removed, it was suf-
ficient that court warned defense counsel in presence of defendant).
2. Whether the conduct is serious enough to warrant the defendant’s removal is gener-
ally in the discretion of the trial judge. Rule 43(c)(1)(C) simply states that it must be “conduct
that justifies removal from the courtroom,” and the Supreme Court described it as conduct
that is “so disorderly, disruptive, and disrespectful of the court that [defendant’s] trial cannot
be carried on with him in the courtroom.” Illinois v. Allen, 397 U.S. 337, 343 (1970).
5. The court should consider any other factors required by circuit law.3
If the defendant is appearing pro se and standby counsel is present, the
court should first warn the defendant that pro se status will be denied and
that standby counsel will take over if there is further disruption. If pro se
status is denied and standby counsel takes over, the defendant may be re-
moved from the courtroom for any further disruption.
3. For example, the Eleventh Circuit requires courts to consider the potential prejudice
to the defense of the defendant’s absence in addition to the adequacy of the warning and
degree of misconduct. See Foster v. Wainwright, 686 F.2d 1382, 1388 (11th Cir. 1982).
4. The Court in Deck stated that the “[l]ower courts have disagreed about the specific
procedural steps a trial court must take prior to shackling [and] about the amount and type of
evidence needed to justify restraints,” 544 U.S. at 629, but the following common practices
may provide guidance to courts that are considering restraining a defendant.
5. Holbrook v. Flynn, 475 U.S. 560, 569 (1986) (although it must be determined on a case-
by-case basis, compared with shackling, “the presence of guards at a defendant’s trial need
not be interpreted as a sign that he is particularly dangerous or culpable”).
6. See, e.g., United States v. Wardell, 591 F.3d 1279, 1294 (10th Cir. 2009) (“district court’s
decision to require a defendant to wear a stun belt during a criminal trial would appear or-
dinarily to pose no constitutional problem when: (1) the court makes a defendant-specific
determination of necessity resulting from security concerns; and (2) it minimizes the risk of
prejudice by, for instance, concealing the stun belt from the jury”); United States v. Brazel,
3. Allow defense counsel (or the defendant if pro se) the opportunity to
respond to the court’s concerns.7
4. If the factual basis for restraint is disputed, consider holding an evi-
dentiary hearing and making findings on the record.8
5. Make an independent evaluation based on the circumstances of the
case and the individual defendant.9
6. If the court concludes that physical restraint is advisable, “impose no
greater restraints than necessary to secure the courtroom . . . [and]
take all practical measures, including a cautionary instruction, to
minimize the prejudice resulting from a party appearing in physical
restraints.”10
102 F.3d 1120, 1158 (11th Cir. 1997) (“The court’s use of cloths to cover all counsels’ tables so
that the leg shackles were not visible significantly reduced the possibility of prejudice.”);
United States v. Collins, 109 F.3d 1413, 1418 (9th Cir. 1997) (same).
7. See Sides v. Cherry, 609 F.3d 576, 586 (10th Cir. 2010) (“district courts should hold a
proceeding [outside the presence of the jury] that allows the parties to offer argument
bearing on the need for restraints as well as the extent of the restraints deemed necessary
(if any)”); United States v. Theriault, 531 F.2d 281, 285 (5th Cir. 1976) (“Counsel, or the
defendant himself in appropriate cases, should be given an opportunity both to respond to
the reasons presented and to persuade the judge that such measures are unnecessary.”);
United States v. Samuel, 431 F.2d 610, 615 (4th Cir. 1970) (“Whenever unusual visible
security measures in jury cases are to be employed, we will require the district judge to state
for the record, out of the presence of the jury, the reasons therefor and give counsel an
opportunity to comment thereon, as well as to persuade him that such measures are
unnecessary.”).
8. Theriault, 531 F.2d at 285 (“when unusual visible security measures are utilized be-
fore a jury, we will require that the district judge state for the record, outside the jury’s pres-
ence, the reasons for such action. . . . A formal evidentiary hearing may not be required, but
if the factual basis for the extraordinary security is controverted, the taking of evidence and
finding of facts may be necessary.” Accord United States v. Moore, 651 F.3d 30, 46 (D.C. Cir.
2011) (citing Theriault regarding whether evidentiary hearing is required).
9. See, e.g., Moore, 651 F.3d at 46 (affirming, in part, because the district court “consid-
ered the security concerns presented by the particular defendants at trial before making the
determination that stun belts were appropriate. It thoroughly examined factors relevant to
each defendant and . . . made a determination based on those factors.”); United States v.
Baker, 432 F.3d 1189, 1244 (11th Cir. 2005) (“if a judge intends to shackle a defendant, he
must make a case specific and individualized assessment of each defendant in that particu-
lar trial”); United States v. Zuber, 118 F.3d 101, 103 (2d Cir. 1997) (“a presiding judge may
not approve the use of physical restraints, in court, on a party to a jury trial unless the judge
has first performed an independent evaluation—including an evidentiary hearing, where
necessary—of the need to restrain the party”); United States v. Hack, 782 F.2d 862, 868 (10th
Cir. 1986) (“The extent to which the security measures are needed should be determined by
the trial judge on a case-by-case basis by ‘considering the person’s record, the crime
charged, his physical condition, and other available security measures.’”) (citation omitted).
10. Sides, 609 F.3d at 586. See also Woodard v. Perrin, 692 F.2d 220, 221 (1st Cir. 1982) (“a
judge should consider less restrictive measures before deciding that a defendant should be
shackled”).
11. United States v. Mays, 158 F.3d 1215, 1226 (11th Cir. 1998). See also Sides, 609 F.3d at
582 (agreeing with other circuits that, “though a district court may rely ‘heavily’ on advice
from court security officers, it ‘bears the ultimate responsibility’ of determining what re-
straints are necessary”) (citation omitted); Lakin v. Stine, 431 F.3d 959, 964 (6th Cir. 2005)
(trial court erred when it “simply deferred to the corrections officer’s request. Although a
trial court might find a corrections officer’s opinion highly relevant to answering the ulti-
mate inquiry as to whether shackling is necessary in a particular case, an individualized
determination under the due process clause requires more than rubber stamping that re-
quest.”); Gonzalez v. Pliler, 341 F.3d 897, 902 (9th Cir. 2003) (“It is the duty of the trial court,
not correctional officers, to make the affirmative determination, in conformance with con-
stitutional standards, to order the physical restraint of a defendant in the courtroom.”); Da-
vidson v. Riley, 44 F.3d 1118, 1124 (2d Cir. 1995) (“If the court has deferred entirely to those
guarding the prisoner, . . . it has failed to exercise its discretion.”); Woods v. Theiret, 5 F.3d
244, 248 (7th Cir. 1993) (“While the trial court may rely ‘heavily’ on the marshals in evaluat-
ing the appropriate security measures to take with a given prisoner, the court bears the ul-
timate responsibility for that determination and may not delegate the decision to shackle
an inmate to the marshals.”); Samuel, 431 F.2d at 615 (“We stress that the discretion is that of
the district judge. He may not . . . delegate that discretion to the Marshal.”).
12. Davidson, 44 F.3d at 1122–23. See also Sides, 609 F.3d at 581 (agreeing with other cir-
cuits “that the concerns expressed in Allen also apply in the context of civil trials”); Woods, 5
F.3d at 246–47 (“analysis used to determine when restraints are necessary in criminal cases
is also applicable in civil cases”); Wilson v. McCarthy, 770 F.2d 1482, 1485 (9th Cir. 1985)
(“federal courts use the same standard of review in both defendant shackling and witness
shackling cases”); Harrell v. Israel, 672 F.2d 632, 635 (7th Cir. 1982) (“the general rule
against the use of physical restraints in the courtroom applies to defense witnesses as well
as the defendant himself”). Cf. Duckett v. Godinez, 67 F.3d 734, 738 (9th Cir. 1995) (“relying
on criminal case precedents, courts have held that when an individual’s level of
dangerousness is a question the jury must decide in a civil proceeding, it is a violation of the
right to a fair trial to compel that individual to appear before the jury bound in physical re-
straints”).
13. United States v. Durham, 287 F.3d 1297, 1306 (11th Cir. 2002) (also noting that “[d]ue
to the novelty of this technology, a court contemplating its use will likely need to make fac-
tual findings about the operation of the stun belt, addressing issues such as the criteria for
triggering the belt and the possibility of accidental discharge”). See also Wardell, 591 F.3d at
1293–94 (principles that apply to physical restraints “should apply to stun belts because, as
numerous circuits have recognized, ‘[t]he use of stun belts, depending somewhat on their
method of deployment, raises all of the traditional concerns about the imposition of physical
restraints.’ . . . If seen or activated, a stun belt ‘might have a significant effect on the jury’s
feelings about the defendant.’”) (citations omitted); United States v. Miller, 531 F.3d 340,
344–45 (6th Cir. 2008) (Deck applies to use of “stun belt” on defendant during trial); Gon-
zalez, 341 F.3d at 900 (“The use of stun belts, depending somewhat on their method of de-
ployment, raises all of the traditional concerns about the imposition of physical restraints.”).
Cf. Chavez v. Cockrell, 310 F.3d 805, 809 (5th Cir. 2002) (where judge immediately “took steps
to mitigate any prejudicial influence on the jury,” accidental activation of stun belt on first
day of trial did not deny defendant the presumption of innocence).
The cited statutes provide for the entry of an order requiring an individual to
give testimony or provide other information at any proceeding before or an-
cillary to a court or a grand jury of the United States after the court ensures
compliance with the requirements of 18 U.S.C. §§ 6002, 6003, and 28 C.F.R.
§ 0.175, or, in the case of testimony or information concerning controlled
substances, compliance with 21 U.S.C. § 884 and 28 C.F.R. § 0.175.
Procedure
A. Review the motion of the U.S. attorney to satisfy yourself that
1. the motion is made with the approval of the Attorney General, the
Deputy Attorney General, or any designated assistant attorney gen-
eral of the United States Department of Justice;
2. the motion asserts that the testimony or other information from the
individual may be necessary to the public interest; and
3. the motion asserts that the individual has refused or is likely to re-
fuse to testify or provide other information on the basis of the privi-
lege against self-incrimination.
B. If the above requirements have been met, enter an order reflecting the
court’s satisfaction that the prerequisites have been met and ordering,
pursuant to 18 U.S.C. § 6003 or 21 U.S.C. § 884, that
1. the person shall give testimony or provide other information as to all
matters about which the person may be interrogated before the court
or the grand jury, testimony that he or she has refused to give or to
provide on the basis of the privilege against self-incrimination;
2. the order shall become effective only if, after the date of the order,
the person refuses to testify or provide other information on the basis
of his or her privilege against self-incrimination;
3. no testimony or other information compelled from the person under
the order, or any information directly or indirectly derived from such
testimony or other information, may be used against the person in
any criminal case except in a prosecution for perjury, for giving a false
statement, or for otherwise failing to comply with the order; and
4. the motion and order are to be sealed, if appropriate.
C. Cause the (sealed) motion and order to be delivered to the clerk of court.
The case law on this subject varies from circuit to circuit. The suggested pro-
cedure may be varied to conform with the law of the circuit, the practice of
the district, and the preferences of the individual judge.
A. If a witness refuses to answer a proper question and invokes the Fifth
Amendment privilege to justify that refusal, the trial court must deter-
mine whether the privilege has been properly claimed. The Fifth
Amendment privilege extends to
1. answers that would support a conviction of the witness for violating a
federal or state criminal statute; or
2. answers that would furnish a link in the chain of evidence needed to
prosecute the witness for violating a federal or state criminal statute.
B. The following suggested procedure may be used when a witness claims
the Fifth Amendment privilege:
1. Excuse the jury.
2. Explain to the witness the nature of the Fifth Amendment privilege.
Ask the witness if he or she wishes to consult counsel. Consider the
appointment of counsel.
3. Have the question repeated to the witness, and ask the witness if he
or she still refuses to answer the question.
4. If the witness still refuses on the ground of the Fifth Amendment, the
court should determine whether the claim of the privilege is appro-
priate. Be careful not to interrogate the witness about the claim in
such a way as to force the witness to surrender the privilege in order
to claim it.
5. If the witness makes a prima facie showing of the validity of his or her
claim, the party seeking the answer then has the burden to demon-
strate that the answer could not possibly tend to incriminate the wit-
ness.
6. Sustain the Fifth Amendment claim if you find that the witness has
reasonable cause to believe that answering the particular question
might tend to incriminate him or her. The criterion to be applied in
making this determination is the possibility of prosecution, not the
likelihood of prosecution.
As the Supreme Court found in Hoffman v. United States, 341 U.S.
479, 486 (1951):
To sustain the privilege it need only be evident from the implication of
the question, in the setting in which it is asked, that a responsive an-
swer to the question or an explanation of why it cannot be answered
The case law on this subject varies from circuit to circuit. The suggested pro-
cedure may be varied to conform with the law of the circuit, the practice of
the district, and the preferences of the individual judge.
Refusal by a witness during trial or before a grand jury to answer a proper
question, after having been ordered to do so by the court, constitutes con-
tempt of court, and the witness may be subject to both civil and criminal
contempt sanctions. See 18 U.S.C. § 401(3); 28 U.S.C. § 1826(a). See also infra
sections 7.01 and 7.02.
A. Recalcitrant witness during trial
When a witness refuses to answer a proper question during trial, con-
sider the following procedure:
1. Excuse the jury.
2. Determine the reason for the refusal. (If the witness claims the Fifth
Amendment privilege, see supra section 5.03: Invoking the Fifth
Amendment.)
3. If no valid Fifth Amendment claim or other good cause is shown, ad-
vise the witness
(a) that the jury will be recalled and that the witness will be ordered
to answer the question.
(b) that if the witness persists in refusing to answer, he or she will be
cited for civil contempt, and if found guilty, will be confined until
he or she answers the question or until the trial ends. Advise the
witness that he or she may be fined in addition to being confined.
(c) that if the witness has not answered the question before the trial
ends, he or she may then be cited for criminal contempt and, if
found guilty, fined or imprisoned; that if the witness is found
guilty of criminal contempt at a bench trial, he or she may be im-
prisoned for as much as six months; and that if a jury finds the
witness guilty of criminal contempt, he or she may be imprisoned
for as long as the judge in his or her discretion determines. (If the
witness is currently serving another sentence, advise the witness
that if he or she is confined for civil or criminal contempt, the con-
finement will be in addition to the sentence already being
served.)
4. The jury should then be recalled, the question re-asked, and the wit-
ness ordered to answer.
5. If the witness refuses to answer, counsel should be permitted to ex-
amine the witness concerning other subject matter about which the
witness is willing to testify.
1. Note that Wilson applies only to witnesses during a criminal trial. Witnesses before a
grand jury should be given notice and a hearing under current Rule 42(a). See Harris v.
United States, 382 U.S. 162 (1965).
2. This step may be unnecessary if the witness declares during the court proceeding that
he or she will persist in refusing and that another opportunity to answer would be pointless.
General guidelines
When a criminal defendant moves for a mistrial, the general rule is that re-
trial is not barred by double jeopardy concerns. See United States v. Scott,
437 U.S. 82, 93–94 (1978). However, there is one important exception to this
rule: Retrial is barred if the motion was provoked by intentional government
misconduct.
Only where the governmental conduct in question is intended to “goad” the
defendant into moving for a mistrial may a defendant raise the bar of double
jeopardy to a second trial after having successfully aborted the first on his own
motion.
Oregon v. Kennedy, 456 U.S. 667, 676 (1982).
The court must find that the intent of the government was to deliberately
provoke a mistrial, not merely that the conduct was harassing or in bad faith.
Prosecutorial conduct that might be viewed as harassment or overreaching,
even if sufficient to justify a mistrial on defendant’s motion, . . . does not bar
retrial absent intent on the part of the prosecutor to subvert the protections af-
forded by the Double Jeopardy Clause.
Id. at 675–76.
Note that mistake or carelessness is not sufficient to support a double
jeopardy claim. See, e.g., United States v. Johnson, 55 F.3d 976, 978 (4th Cir.
1995); United States v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992). Nor is
“[n]egligence, even if gross.” United States v. Huang, 960 F.2d 1128, 1133 (2d
Cir. 1992). Even a deliberate improper act that causes a mistrial does not
prevent retrial if it was not intended to provoke a mistrial. United States v.
White, 914 F.2d 747, 752 (6th Cir. 1990) (although prosecutor deliberately
attempted to elicit from witness evidence that court had ruled inadmissible,
court found that conduct was motivated by “prosecutorial inexperience”).
If the defendant moves for a mistrial with jeopardy attached on the spe-
cific ground of prosecutorial misconduct, the court should not deny a mis-
trial on that ground and then declare a mistrial without prejudice over the
defendant’s objection unless the defendant consents or there is “manifest
necessity” for a mistrial. See Weston v. Kernan, 50 F.3d 633, 636–38 (9th Cir.
1995). See also Corey v. District Court of Vermont, Unit #1, Rutland Circuit, 917
F.2d 88, 90–92 (2d Cir. 1990) (retrial prohibited where the defendant con-
sented to mistrial only if jeopardy attached but court declared mistrial with-
out prejudice).
Before a court may order a mistrial, Fed. R. Crim. P. 26.3 requires it to
“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.”
Multidefendant cases
If only one or some of the defendants in a multidefendant case move suc-
cessfully for mistrial, the court should give the other defendants an oppor-
tunity to object. Unless the nonmoving defendants join the motion or ac-
quiesce to the decision,1 the court should sever their cases or must find that
there are grounds to declare a mistrial for those defendants, too. See, e.g.,
White, 914 F.2d at 753–55 (conviction must be vacated on double jeopardy
grounds where the defendant did not have sufficient opportunity to object
to other defendant’s mistrial motion at initial trial, the record did not indi-
cate he joined the motion or otherwise consented to mistrial, and “there was
no manifest necessity for declaring a mistrial in regard to him”).
Courts should be particularly careful in multidefendant cases where
some defendants would agree to a mistrial with prejudice but would object
to mistrial without prejudice. See, e.g., United States v. Huang, 960 F.2d 1128,
1134–36 (2d Cir. 1992) (where all four defendants moved for mistrial, but
two specifically moved for mistrial with prejudice and objected to granting of
mistrial without prejudice, double jeopardy prevented retrial because there
was no manifest necessity to declare mistrial rather than sever the cases and
proceed with original trial for them).
Appendices
A. FJC survey
B. Justice Department policies and guidance
C. Potential Brady or Giglio information
Introduction
Federal criminal discovery is governed by Rule 16 of the Federal Rules of
Criminal Procedure and for certain specified matters by portions of Rules 12,
12.1, 12.2, and 12.3.1 The Jencks Act, 18 U.S.C. § 3500, and Rule 26.2 govern
the disclosure of witness statements at trial, and the Classified Information
Procedures Act, 18 U.S.C. App. 3, governs discovery and disclosure when
classified information related to national security is implicated. Prosecutors
and defense lawyers should be familiar with these authorities, and judges
typically know where to find the relevant law in deciding most discovery is-
sues.
However, it sometimes is more challenging to understand the full scope
of a prosecutor’s obligations with respect to a defendant’s constitutional
1. See also Rule 15, governing depositions for those limited circumstances in which
depositions are permitted in criminal cases, and Rule 17, governing subpoenas.
tion and acquittal.” United States v. Bagley, 473 U.S. 667, 676 (1985) (quota-
tions omitted).
2.
Information
from
law
enforcement
agencies
Under Brady, the prosecutor is required to find and disclose favorable evi-
dence initially known only to law enforcement officers and not to the prose-
cutor. The individual prosecutor in a specific case has an affirmative “duty to
learn of any favorable evidence known to the others acting on the govern-
ment’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. at
437. See also Youngblood v. West Virginia, 547 U.S. 867, 869–70 (2006) (per cu-
riam) (“Brady suppression occurs when the government fails to turn over
even evidence that is ‘known only to police investigators and not to the
prosecutor’”) (quoting Kyles v. Whitley, 514 U.S. at 438).
3.
Ongoing
duty
A prosecutor’s disclosure obligations under Brady are ongoing: they begin as
soon as the case is brought and continue throughout the pretrial and trial
phases of the case.2 See Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) (“the
duty to disclose is ongoing; information that may be deemed immaterial
upon original examination may become important as the proceedings pro-
gress”).3 If Brady information is known to persons on the prosecution team,
including law enforcement officers, it should be disclosed to the defendant
as soon as reasonably possible after its existence is recognized.
2. The Supreme Court has declined to extend Brady disclosure obligations to evidence
that the government did not possess during the trial but only became available “after the
defendant was convicted and the case was closed.” See District Attorney’s Office for Third
Judicial District v. Osborne, 557 U.S. 52, 68–69 (2009) (“Brady is the wrong framework” for
prisoner’s post-conviction attempt to retest DNA evidence using a newer test that was not
available when he was tried). “[A] post-conviction claim for DNA testing is properly pursued
in a [42 U.S.C.] § 1983 action.” Skinner v. Switzer, 131 S. Ct. 1289, 1293, 1300 (2011) (also
noting that “Brady claims have ranked within the traditional core of habeas corpus and out-
side the province of § 1983”). Cf. Whitlock v. Brueggemann, 682 F.3d 567, 587–88 (7th Cir.
2012) (distinguishing Osbourne: “Brady continues to apply [in a post-trial action] to an as-
sertion that one did not receive a fair trial because of the concealment of exculpatory evi-
dence known and in existence at the time of that trial”).
3. See also Steidl v. Fermon, 494 F.3d 623, 630 (7th Cir. 2007) (“For evidence known to the
state at the time of the trial, the duty to disclose extends throughout the legal proceedings
that may affect either guilt or punishment, including post-conviction proceedings.”); Leka v.
Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) (“Brady requires disclosure of information that the
prosecution acquires during the trial itself, or even afterward”); Smith v. Roberts, 115 F.3d
818, 819–20 (10th Cir. 1997) (same, applying Brady to impeachment evidence that prosecutor
did not learn of until “[a]fter trial and sentencing but while the conviction was on direct
appeal. . . . [T]he duty to disclose is ongoing and extends to all stages of the judicial proc-
ess.”).
4.
Disclosure
favored
When it is uncertain whether information is favorable or useful to a defen-
dant, “the prudent prosecutor will err on the side of transparency, resolving
doubtful questions in favor of disclosure.” Cone v. Bell, 556 U.S. 449, 470 n.15
(2009). See also Kyles v. Whitley, 514 U.S. at 439–40; Agurs, 427 U.S. at 108.4
B. Elements of a violation
There are three elements of a Brady violation: (1) the information must be
favorable to the accused; (2) the information must be suppressed—that is,
not disclosed—by the government, either willfully or inadvertently; and
(3) the information must be “material” to guilt or to punishment. See Strickler
v. Greene, 527 U.S. 263, 281–82 (1999).
1.
Favorable
to
the
accused
Information is “favorable to the accused either because it is exculpatory, or
because it is impeaching.” Strickler, 527 U.S. at 281–82. Most circuits have
held that information may be favorable even if it is not admissible as evi-
dence itself, as long as it reasonably could lead to admissible evidence. See,
e.g., United States v. Triumph Capital Group, Inc., 544 F.3d 149, 162–63 (2d
Cir. 2008) (Brady information “need not be admissible if it ‘could lead to ad-
missible evidence’ or ‘would be an effective tool in disciplining witnesses
during cross-examination by refreshment of recollection or otherwise’”)
(quoting United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002)).5
4. Cf. United States v. Moore, 651 F.3d 30, 99–100 (D.C. Cir. 2011) (“This is particularly
true where the defendant brings the existence of what he believes to be exculpatory or im-
peaching evidence or information to the attention of the prosecutor and the district court, in
contrast to a general request for Brady material.”).
5. See also United States v. Wilson, 605 F.3d 985, 1005 (D.C. Cir. 2010) (no Brady violation
because undisclosed information was not admissible nor would it have led to admissible
evidence or effective impeachment); Ellsworth v. Warden, 333 F.3d 1, 5 (1st Cir. 2003) (“we
think it plain that evidence itself inadmissible could be so promising a lead to strong excul-
patory evidence that there could be no justification for withholding it”); Spence v. Johnson,
80 F.3d 989, 1005 at n.14 (5th Cir. 1996) (“inadmissible evidence may be material under
Brady”); Spaziano v. Singletary, 36 F.3d 1028, 1044 (11th Cir. 1994) (“A reasonable probabil-
ity of a different result is possible only if the suppressed information is itself admissible
evidence or would have led to admissible evidence.”); United States v. Phillip, 948 F.2d 241,
249 (6th Cir. 1991) (“information withheld by the prosecution is not material unless the in-
formation consists of, or would lead directly to, evidence admissible at trial for either sub-
stantive or impeachment purposes”). Cf. Wood v. Bartholomew, 516 U.S. 1, 6 (1995) (per cu-
riam) (where it was “mere speculation” that inadmissible materials might lead to the
discovery of admissible exculpatory evidence, those materials are not subject to disclosure
under Brady); United States v. Velarde, 485 F.3d 553, 560 (10th Cir. 2007) (if defendant “is
able to make a showing that further investigation under the court’s subpoena power very
likely would lead to the discovery of [admissible material] evidence,” defendant may “re-
quest leave to conduct discovery”); Madsen v. Dormire, 137 F.3d 602, 604 (8th Cir. 1998) (cit-
ing Wood, there was no Brady violation where undisclosed information was not admissible
2.
Suppression,
willful
or
inadvertent
Whether exculpatory information has been suppressed by the government
is a matter for inquiry first by defense counsel making a request of the
prosecutor. If defense counsel remains unsatisfied, the trial court may make
its own inquiry and, if appropriate, require the government to produce the
undisclosed information for in camera inspection by the court. See also dis-
cussion in infra section D: Disputed disclosure.
It does not matter whether a failure to disclose is intentional or inadver-
tent, since “under Brady an inadvertent nondisclosure has the same impact
on the fairness of the proceedings as deliberate concealment.” Strickler, 527
U.S. at 288; Agurs, 427 U.S. at 110 (“Nor do we believe the constitutional obli-
gation is measured by the moral culpability, or the willfulness, of the prose-
cutor. . . . If the suppression of evidence results in constitutional error, it is
because of the character of the evidence, not the character of the prosecu-
tor.”).6
Information will not be considered “suppressed” for Brady purposes if
the defendant already knew about it7 or could have obtained it with reason-
able effort.8 However, suppression still may be found in this situation if a de-
and could not be used to impeach; court did not address whether it could lead to admissible
evidence). But cf. Hoke v. Netherland, 92 F.3d 1350, 1356 at n.3 (4th Cir. 1996) (reading Wood
to hold that inadmissible evidence is, “as a matter of law, ‘immaterial’ for Brady purposes”).
6. See also Porter v. White, 483 F.3d 1294, 1305 (11th Cir. 2007) (“The Brady rule thus im-
poses a no-fault standard of care on the prosecutor. If favorable, material evidence exclu-
sively in the hands of the prosecution team fails to reach the defense—for whatever rea-
son—and the defendant is subsequently convicted, the prosecution is charged with a Brady
violation, and the defendant is entitled to a new trial.”); Gantt v. Roe, 389 F.3d 908, 912 (9th
Cir. 2004) (“Brady has no good faith or inadvertence defense”).
7. See, e.g., Parker v. Allen, 565 F.3d 1258, 1277 (11th Cir. 2009) (“there is no suppression
if the defendant knew of the information or had equal access to obtaining it”); United States
v. Zichittello, 208 F.3d 72, 103 (2d Cir. 2000) (“Even if evidence is material and exculpatory, it
‘is not “suppressed”’ by the government within the meaning of Brady ‘if the defendant ei-
ther knew, or should have known, of the essential facts permitting him to take advantage of
any exculpatory evidence.’”) (citations omitted); Rector v. Johnson, 120 F.3d 551, 558–59 (5th
Cir. 1997) (same); United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991) (“No Brady viola-
tion exists where a defendant ‘knew or should have known the essential facts permitting
him to take advantage of any exculpatory information,’ . . . or where the evidence is avail-
able to defendant from another source.”) (citations omitted). Cf. United States v. Quintanilla,
193 F.3d 1139, 1149 (10th Cir. 1999) (“a defendant’s independent awareness of the exculpa-
tory evidence is critical in determining whether a Brady violation has occurred. If a defen-
dant already has a particular piece of evidence, the prosecution’s disclosure of that evidence
is considered cumulative, rendering the suppressed evidence immaterial.”).
8. United States v. Rodriguez, 162 F.3d 135, 147 (1st Cir. 1998) (“government has no
Brady burden when the necessary facts for impeachment are readily available to a diligent
defender”); United States v. Dimas, 3 F.3d 1015, 1019 (7th Cir. 1993) (when “the defendants
might have obtained the evidence themselves with reasonable diligence . . . , then the evi-
dence was not ‘suppressed’ under Brady and they would have no claim”); Hoke, 92 F.3d at
3.
Materiality
(a)
Definition
The most problematic aspect of Brady for prosecutors and trial judges is the
third element: the requirement that the favorable information suppressed
by the government be “material.” Under Brady, information is considered
“material” “when there is a reasonable probability that, had the evidence
1355 (“The strictures of Brady are not violated, however, if the information allegedly with-
held by the prosecution was reasonably available to the defendant.”).
9. The Court cautioned, however, that “[w]e do not reach, because it is not raised in this
case, the impact of a showing by the State that the defendant was aware of the existence of
the documents in question and knew, or could reasonably discover, how to obtain them.” Id.
at 288 n.33. See also Carr v. Schofield, 364 F.3d 1246, 1255 (11th Cir. 2004) (citing and quoting
Strickler for proposition that “if a prosecutor asserts that he complies with Brady through an
open file policy, defense counsel may reasonably rely on that file to contain all materials
the State is constitutionally obligated to disclose under Brady”).
10. Banks v. Dretke, 540 U.S. 668, 693–96 (2004) (“Our decisions lend no support to the
notion that defendants must scavenge for hints of undisclosed Brady material when the
prosecution represents that all such material has been disclosed. As we observed in Strickler,
defense counsel has no ‘procedural obligation to assert constitutional error on the basis of
mere suspicion that some prosecutorial misstep may have occurred.’ 527 U.S. at 286–287”).
See also Gantt v. Roe, 389 F.3d at 912–13 (“While the defense could have been more diligent,
. . . this does not absolve the prosecution of its Brady responsibilities. . . . Though defense
counsel could have conducted his own investigation, he was surely entitled to rely on the
prosecution’s representation that it was sharing the fruits of the police investigation.”). Cf.
Bell v. Bell, 512 F.3d 223, 236 (6th Cir. 2008) (distinguishing Banks from instant case, in
which the facts known to defendant “strongly suggested that further inquiry was in order,
whether or not the prosecutor said he had turned over all the discoverable evidence in his
file, and the information was a matter of public record”).
been disclosed, the result of the proceeding would have been different.”
Smith v. Cain, 132 S. Ct. 627, 630 (2012) (quotations omitted). “A reasonable
probability does not mean that the defendant ‘would more likely than not
have received a different verdict with the evidence,’ only that the likelihood
of a different result is great enough to ‘undermine[] confidence in the out-
come of the trial.’” Id. (quoting Kyles v. Whitley, 514 U.S. at 434) (alteration in
original).11
This definition of “materiality” necessarily is retrospective. It is used by
an appellate court after trial to review whether a failure to disclose on the
part of the government was so prejudicial that the defendant is entitled to a
new trial. While Brady requires that materiality be considered even before or
during trial, obviously it may not always be apparent in advance whether
the suppression of a particular piece of information ultimately might “un-
dermine [] confidence in the outcome of the trial.”12 For this reason, as noted
earlier, the Supreme Court explicitly has recommended erring on the side of
disclosure when there is uncertainty before or during trial about an item’s
materiality: “[T]here is a significant practical difference between the pretrial
decision of the prosecutor and the post-trial decision of the judge. Because
we are dealing with an inevitably imprecise standard, and because the sig-
nificance of an item of evidence can seldom be predicted accurately until
the entire record is complete, the prudent prosecutor will resolve doubtful
questions in favor of disclosure.”13At the same time, the Court reiterated the
11. See also Banks v. Dretke, 540 U.S. at 698–99 (“[o]ur touchstone on materiality is Kyles
v. Whitley”); Kyles v. Whitley, 514 U.S. at 434 (“The question is not whether the defendant
would more likely than not have received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of
confidence.”); United States v. Bagley, 473 U.S. 667, 682 (1985) (“A ‘reasonable probability’
is a probability sufficient to undermine confidence in the outcome.”).
12. Smith v. Cain, 132 S. Ct. at 630. See also United States v. Jordan, 316 F.3d 1215, 1252
n.79 (11th Cir. 2003) (“In the case at hand, . . . the defendants’ Brady claims involve material
that was produced both before and during the defendants’ trial. In such a scenario, because
the trial has just begun, the determination of prejudice is inherently problematical.”).
13. United States v. Agurs, 427 U.S. 97, 108 (1976). See also Cone v. Bell, 556 U.S. at 470
n.15 (“As we have often observed, the prudent prosecutor will err on the side of transpar-
ency, resolving doubtful questions in favor of disclosure.”); United States v. Starusko, 729
F.2d 256, 261 (3d Cir. 1984) (“it is difficult to analyze, prior to trial, whether potential im-
peachment evidence falls within Brady without knowing what role a certain witness will
play in the government’s case”). Cf. Jordan, 316 F.3d at 1251 (“under Brady, the government
need only disclose during pretrial discovery (or later, at the trial) evidence which, in the
eyes of a neutral and objective observer, could alter the outcome of the proceedings. Not
infrequently, what constitutes Brady material is fairly debatable. In such cases, the prosecu-
tor should mark the material as a court exhibit and submit it to the court for in camera in-
spection.”); United States v. Cadet, 727 F.2d 1453, 1469 (9th Cir. 1984) (“Any doubt concern-
ing the applicability of Brady to any specific document . . . should have been submitted to the
court for an in camera review.”).
Some district courts have enacted local rules that eliminate the Brady materiality re-
quirement for pretrial disclosure of exculpatory information. See discussion at pp. 16–17 in
“critical point” that “the prosecutor will not have violated his constitutional
duty of disclosure unless his omission is of sufficient significance to result in
the denial of the defendant’s right to a fair trial.”14
(b)
Cumulative
effect
of
suppressed
evidence
Although each instance of nondisclosure is examined separately, the “sup-
pressed evidence [is] considered collectively, not item by item” in determin-
ing materiality. Kyles v. Whitley, 514 U.S. at 436–37 & n.10 (“showing that the
prosecution knew of an item of favorable evidence unknown to the defense
does not amount to a Brady violation, without more. But the prosecution,
which alone can know what is undisclosed, must be assigned the conse-
quent responsibility to gauge the likely net effect of all such evidence and
make disclosure when the point of ‘reasonable probability’ is reached”).15
The undisclosed evidence “must be evaluated in the context of the entire
Laural Hooper et al., Fed. Judicial Ctr., A Summary of Responses to a National Survey of Rule
16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases
(2011). See also United States v. Price, 566 F.3d 900, 913 n.14 (9th Cir. 2009) (“[f]or the benefit
of trial prosecutors who must regularly decide what material to turn over, we note favorably
the thoughtful analysis” of two district courts that held that “the ‘materiality’ standard usu-
ally associated with Brady . . . should not be applied to pretrial discovery of exculpatory ma-
terials”).
14. Agurs, 427 U.S. at 109–10 (also cautioning that “[t]he mere possibility that an item of
undisclosed information might have helped the defense, or might have affected the outcome
of the trial, does not establish ‘materiality’ in the constitutional sense”). See also United
States v. Lemmerer, 277 F.3d 579, 588 (1st Cir. 2002) (“The same standard applies when the
claim is one of delayed disclosure rather than complete suppression. However, in delayed
disclosure cases, we need not reach the question whether the evidence at issue was ‘mate-
rial’ under Brady unless the defendant first can show that defense counsel was ‘prevented
by the delay from using the disclosed material effectively in preparing and presenting the
defendant’s case.’”); United States v. Coppa, 267 F.3d 132, 140 (2d Cir. 2001) (“Although the
government’s obligations under Brady may be thought of as a constitutional duty arising
before or during the trial of a defendant, the scope of the government’s constitutional
duty—and, concomitantly, the scope of a defendant’s constitutional right—is ultimately de-
fined retrospectively, by reference to the likely effect that the suppression of particular evi-
dence had on the outcome of the trial. . . . The government therefore has a so-called ‘Brady
obligation’ only where non-disclosure of a particular piece of evidence would deprive a
defendant of a fair trial.”); Starusko, 729 F.2d at 261 (there is “no violation of Brady unless
the government’s nondisclosure infringes the defendant’s fair trial right”).
15. See also Jackson v. Brown, 513 F.3d 1057, 1071–72 (9th Cir. 2008) (“The materiality of
suppressed evidence is ‘considered collectively, not item by item.’ . . . [E]ach additional . . .
Brady violation further undermines our confidence in the decision-making process”) (quot-
ing Kyles); Maharaj v. Sec’y for Dept. of Corrections, 432 F.3d 1292, 1310 (11th Cir. 2005) (“the
district court followed the appropriate methodology, considering each Brady item individu-
ally, and only then making a determination about the cumulative impact”); United States v.
Sipe, 388 F.3d 471, 477 (5th Cir. 2004) (“Even if none of the nondisclosures standing alone
could have affected the outcome, when viewed cumulatively in the context of the full array of
facts, we cannot disagree with the conclusion of the district judge that the government’s
nondisclosures undermined confidence in the jury’s verdict.”).
record. If there is no reasonable doubt about guilt whether or not the addi-
tional evidence is considered, there is no justification for a new trial. On the
other hand, if the verdict is already of questionable validity, additional evi-
dence of relatively minor importance might be sufficient to create a reason-
able doubt.” Agurs, 427 U.S. at 112.16
C. Timing of disclosure
1.
In
time
for
effective
use
at
trial
As noted earlier, information may be considered “suppressed” for Brady
purposes if disclosure is delayed to the extent that the defense is not able to
make effective use of the information in the preparation and presentation of
its case at trial. How much preparation a defendant needs in order to use
Brady material effectively—which determines how early disclosure must be
made by the prosecution—depends upon the circumstances of each case.
Disclosure before trial (and often well before trial) is always preferable and
may be required if the material is significant, complex, or voluminous, or
may lead to other exculpatory material after further investigation.17 In some
circumstances, however, disclosure right before, or even during, trial has
been found to be sufficient.18 “It is not feasible or desirable to specify the
16. See also United States v. Bowie, 198 F.3d 905, 912 (D.C. Cir. 1999) (court must “evalu-
ate the impact of the undisclosed evidence not in isolation, but in light of the rest of the trial
record”); Porretto v. Stalder, 834 F.2d 461, 464 (5th Cir. 1987) (“Omitted evidence is deemed
material when, viewed in the context of the entire record, it creates a reasonable doubt as to
the defendant’s guilt that did not otherwise exist.”).
17. See DiSimone v. Phillips, 461 F.3d 181, 197 (2d Cir. 2006) (“The more a piece of evi-
dence is valuable and rich with potential leads, the less likely it will be that late disclosure
provides the defense an ‘opportunity for use.’”); Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir.
2001) (“When such a disclosure is first made on the eve of trial, or when trial is under way,
the opportunity to use it may be impaired. The defense may be unable to divert resources
from other initiatives and obligations that are or may seem more pressing. And the defense
may be unable to assimilate the information into its case. . . . Moreover, new witnesses or
developments tend to throw existing strategies and preparation into disarray.”). See also
United States v. Garner, 507 F.3d 399, 405–07 (6th Cir. 2007) (defendant “did not receive a
fair trial” where cell phone records that would have allowed impeachment of critical prose-
cution witness were not disclosed until the morning of trial and the defense was not given
sufficient time to investigate records: “The importance of the denial of an opportunity to
impeach this witness cannot be overstated.”); United States v. Fisher, 106 F.3d 622, 634–35
(5th Cir. 1997) (new trial warranted where government did not disclose until last day of trial
an FBI report containing impeachment evidence that directly contradicted testimony of key
witness and defense was not able to make meaningful use of evidence), abrogated on other
grounds by Ohler v. United States, 529 U.S. 753, 758–59 (2000).
18. A majority of the circuits that have addressed this point have held that disclosure
may be deemed timely, at least in some circumstances, when the defendant is able to effec-
tively use the information at trial, even if disclosure occurs after the trial has begun. See, e.g.,
United States v. Houston, 648 F.3d 806, 813 (9th Cir. 2011) (“there is no Brady violation so
long as the exculpatory or impeaching evidence is disclosed at a time when it still has
value”); United States v. Celis, 608 F.3d 818, 836 (D.C. Cir. (2010) (“the critical point is that
extent or timing of disclosure Brady and its progeny require, except in terms
of the sufficiency, under the circumstances, of the defense’s opportunity to
use the evidence when disclosure is made. Thus, disclosure prior to trial is
not [always] mandated. . . . At the same time, however, the longer the prose-
cution withholds information, or (more particularly) the closer to trial the
disclosure is made, the less opportunity there is for use.” Leka v. Portuondo,
257 F.3d 89, 100 (2d Cir. 2001).19
In light of these considerations, and because the effect of suppression
usually cannot be evaluated fully until after trial, potential Brady material
ordinarily should be disclosed as soon as reasonably possible after its exis-
tence is known by the government, and disclosures on the eve of or during
trial should be avoided unless there is no other reasonable alternative.
2.
Prior
to
a
guilty
plea?
The Supreme Court has held that disclosure of impeachment information is
not required before a guilty plea is negotiated or accepted. See United States
disclosure must occur in sufficient time for defense counsel to be able to make effective use
of the disclosed evidence”); Powell v. Quarterman, 536 F.3d 325, 335 (5th Cir. 2008) (“a de-
fendant is not prejudiced [by untimely disclosure] if the evidence is received in time for its
effective use at trial”); United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007) (“the Gov-
ernment must make disclosures in sufficient time that the defendant will have a reasonable
opportunity to act upon the information efficaciously,” that is, “in a manner that gives the
defendant a reasonable opportunity either to use the evidence in the trial or to use the in-
formation to obtain evidence for use in the trial”); Blake v. Kemp, 758 F.2d 523, 532 n.10
(11th Cir. 1985) (“In some instances [disclosure of potential Brady material the day before
trial] may be sufficient. . . . However, . . . some material must be disclosed earlier. . . . This is
because of the importance of some information to adequate trial preparation.”) (citations
omitted).
19. See also Gantt v. Roe, 389 F.3d at 912 (“That [relevant] pieces of information were
found (or their relevance discovered) only in time for the last day of testimony underscores
that disclosure should have been immediate: Disclosure must be made ‘at a time when [it]
would be of value to the accused.’”) (citation omitted); United States v. McKinney, 758 F.2d
1036, 1049–50 (5th Cir. 1985) (“If the defendant received the material in time to put it to ef-
fective use at trial, his conviction should not be reversed simply because it was not disclosed
as early as it might have and, indeed, should have been.”); United States v. Pollack, 534 F.2d
964, 973–74 (D.C. Cir. 1976) (“Disclosure by the government must be made at such a time as
to allow the defense to use the favorable material effectively in the preparation and presen-
tation of its case, even if satisfaction of this criterion requires pre-trial disclosure. . . . The
trial judge must be given a wide measure of discretion to ensure satisfaction of this stan-
dard. . . . Courts can do little more in determining the proper timing for disclosure than bal-
ance in each case the potential dangers of early discovery against the need that Brady pur-
ports to serve of avoiding wrongful convictions.”); Grant v. Alldredge, 498 F.2d 376, 382 (2d
Cir. 1976) (“Although it well may be that marginal Brady material need not always be dis-
closed upon request prior to trial,” evidence indicating that another suspect may have com-
mitted the crime “was without question ‘specific, concrete evidence’ of a nature requiring
pretrial disclosure to allow for full exploration and exploitation by the defense” that “would
have had a ‘material bearing on defense preparation’ . . . and therefore should have been
revealed well before the commencement of the trial.”) (citations omitted).
3.
Remedies
for
untimely
disclosure
Untimely disclosure that effectively suppresses Brady information may re-
sult in sanctions. The decision whether to impose sanctions is within the
sound discretion of the trial judge: “Where the district court concludes that
the government was dilatory in its compliance with Brady, to the prejudice of
the defendant, the district court has discretion to determine an appropriate
remedy, whether it be exclusion of the witness, limitations on the scope of
permitted testimony, instructions to the jury, or even mistrial. The choice of
remedy also is within the sound discretion of the district court. Fed. R. Crim.
P. 16(d)(2) authorizes the district court in cases of non-compliance with dis-
covery obligations to ‘permit the discovery or inspection,’ ‘grant a continu-
20. Compare United States v. Conroy, 567 F.3d 174, 179 (5th Cir. 2009) (rejecting defen-
dant’s argument that the limitation on the Supreme Court’s discussion in Ruiz “to impeach-
ment evidence implies that exculpatory evidence is different and must be turned over be-
fore entry of a plea”), with McCann v. Mangialardi, 337 F.3d 782, 787–88 (7th Cir. 2003)
(“Ruiz indicates a significant distinction between impeachment information and exculpa-
tory evidence of actual innocence. Given this distinction, it is highly likely that the Supreme
Court would find a violation of the Due Process Clause if prosecutors or other relevant gov-
ernment actors have knowledge of a criminal defendant’s factual innocence but fail to dis-
close such information to a defendant before he enters into a guilty plea”). See also United
States v. Mathur, 624 F.3d 498, 504–07 (1st Cir. 2010) (rejecting defendant’s claim that “po-
tentially exculpatory” information and impeachment information should have been dis-
closed before his plea, court held that the information was not material and added, “Al-
though we recognize that plea negotiations are important, that fact provides no support for
an unprecedented expansion of Brady.”); Jones v. Cooper, 311 F.3d 306, 315 n.5 (4th Cir.
2002) (in a death penalty case, “[t]o the extent that appellant contends that he would not
have pled guilty had he been provided the [potentially mitigating] information held by the
jailor, this claim is foreclosed by” Ruiz). Cf. Ferrara v. United States, 456 F.3d 278, 293 (1st
Cir. 2006) (prosecution’s “blatant misconduct” and “affirmative misrepresentations” in
withholding material exculpatory information—which it was obligated to disclose not only
under Brady v. Maryland but also under local court rules and a court order—rendered de-
fendant’s guilty plea involuntary under Brady v. United States, 397 U.S. 742 (1970)); United
States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994) (“under certain limited circumstances, the
prosecution’s violation of Brady can render a defendant’s plea involuntary”).
ance,’ ‘prohibit the party from introducing the evidence not disclosed,’ or
‘enter any other order that is just under the circumstances.’”21
In most cases, “[t]he customary remedy for a Brady violation that sur-
faces mid-trial is a continuance and a concomitant opportunity to analyze
the new information and, if necessary, recall witnesses.”22 In fact, failure to
request a continuance, or an “outright rejection of a proffered continuance,”
is taken as an indication that the defendant is able to use the information
effectively despite the delay.23
In an extreme case, dismissal may be warranted: “Brady violations are
just like other constitutional violations. Although the appropriate remedy
will usually be a new trial, . . . a district court may dismiss the indictment
when the prosecution’s actions rise . . . to the level of flagrant prosecutorial
misconduct.”24
4.
Jencks
Act
There is no consensus among the circuits as to whether the government’s
constitutional obligation to produce Brady information in a timely manner
21. United States v. Burke, 571 F.3d 1048, 1054 (10th Cir. 2009). See also United States v.
Johnston, 127 F.3d 380, 391 (5th Cir. 1997) (district court has “real latitude” to fashion appro-
priate remedy for alleged Brady errors, including delayed disclosure); United States v. Jos-
leyn, 99 F.3d 1182, 1196 (1st Cir. 1996) (“The district court has broad discretion to redress
discovery violations in light of their seriousness and any prejudice occasioned the defen-
dant,” and court properly refused to dismiss indictment for delay in disclosing Brady mate-
rial).
22. Mathur, 624 F.3d at 506. See also United States v. Collins, 415 F.3d 304, 311 (4th Cir.
2005) (continuance is preferable to motion to dismiss as remedy for late disclosure); United
States v. Kelly, 14 F.3d 1169, 1176 (7th Cir. 1994) (when “a Brady disclosure is made during
trial, the defendant can seek a continuance of the trial to allow the defense to examine or
investigate, if the nature or quantity of the disclosed Brady material makes an investigation
necessary”).
23. Mathur, 624 F.3d at 506. See also Lawrence v. Lensing, 42 F.3d 255, 258 (5th Cir. 1994)
(petitioner “cannot convert his tactical decision not to seek a recess or continuance into a
Brady claim in this habeas petition”); United States v. Adams, 834 F.2d 632, 635 (7th Cir.
1987) (holding that delayed disclosure did not prejudice defendant partly based on fact that
defendant did not request continuance or recess); United States v. Holloway, 740 F.2d 1373,
1381 (6th Cir. 1984) (where defense counsel made no request for a continuance after de-
layed disclosure, “we conclude that the timing of the disclosure did not prejudice” the defen-
dant).
24. United States v. Chapman, 524 F.3d 1073, 1086 (9th Cir. 2008) (“Because the district
court did not clearly err in finding that the government recklessly violated its discovery
obligations and made flagrant misrepresentations to the court, we hold that the dismissal
was not an abuse of discretion.”). Accord Government of Virgin Islands v. Fahie, 419 F.3d
249, 255 (3d Cir. 2005) (“While retrial is normally the most severe sanction available for a
Brady violation, where a defendant can show both willful misconduct by the government,
and prejudice, dismissal may be proper.”).
25. Compare, e.g., United States v. Rittweger, 524 F.3d 171, 181 n.4 (2d Cir. 2008) (“Com-
plying with the Jencks Act, of course, does not shield the government from its independent
obligation to timely produce exculpatory material under Brady—a constitutional require-
ment that trumps the statutory power of 18 U.S.C. § 3500.”), with United States v. Presser, 844
F.2d 1275, 1283–84 (6th Cir. 1988) (“If impeachment evidence is within the ambit of the
Jencks Act, then the express provisions of the Jencks Act control discovery of that kind of evi-
dence. The clear and consistent rule of this circuit is that the intent of Congress expressed in
the Act must be adhered to and, thus, the government may not be compelled to disclose
Jencks Act material before trial. . . . Accordingly, neither Giglio nor Bagley alter the statutory
mandate”).
26. See, e.g., Presser, 844 F.2d at 1283–84 (“so long as the defendant is given impeach-
ment material, even exculpatory impeachment material, in time for use at trial, we fail to
see how the Constitution is violated. Any prejudice the defendant may suffer as a result of
disclosure of the impeachment evidence during trial can be eliminated by the trial court
ordering a recess in the proceedings in order to allow the defendant time to examine the
material and decide how to use it.”); United States v. Kopituk, 690 F.2d 1289, 1339 n.47 (11th
Cir. 1982) (“It has been held that ‘when alleged Brady material is contained in Jencks Act
material, disclosure is generally timely if the government complies with the Jencks Act.’”)
(citations omitted).
27. See, e.g., United States v. Rodriguez, 496 F.3d 221, 228 n.6 (2d Cir. 2007) (“We recog-
nize that in many instances the Government will have good reason to defer disclosure until
the time of the witness’s testimony, particularly of material whose only value to the defense
is as impeachment of the witness by reference to prior false statements. In some instances,
earlier disclosure could put the witness’s life in jeopardy, or risk the destruction of evidence.
Also at times, the Government does not know until the time of trial whether a potential co-
operator will plead guilty and testify for the Government or go to trial as a defendant.”);
United States v. Pollack, 534 F.2d 964, 973–74 (D.C. Cir. 1976) (noting that there can be
“situations in which premature disclosure would unnecessarily encourage those dangers
that militate against extensive discovery in criminal cases, e.g., potential for manufacture of
defense evidence or bribing of witnesses. Courts can do little more in determining the
proper timing for disclosure than balance in each case the potential dangers of early dis-
covery against the need that Brady purports to serve of avoiding wrongful convictions.”). Cf.
United States v. Starusko, 729 F.2d 256, 261 (3d Cir. 1984) (“We recognize that, generally, it is
difficult to analyze, prior to trial, whether potential impeachment evidence falls within
Brady without knowing what role a certain witness will play in the government’s case.”).
there may or may not be a conflict between their respective timing require-
ments. “All Jencks Act statements are not necessarily Brady material. The
Jencks Act requires that any statement in the possession of the govern-
ment—exculpatory or not—that is made by a government witness must be
produced by the government during trial at the time specified by the stat-
ute. Brady material is not limited to statements of witnesses but is defined as
exculpatory material; the precise time within which the government must
produce such material is not limited by specific statutory language but is
governed by existing case law. Definitions of the two types of investigatory
reports differ, the timing of production differs, and compliance with the
statutory requirements of the Jencks Act does not necessarily satisfy the due
process concerns of Brady.” Starusko, 729 F.2d at 263 (emphasis in original).28
5.
Supervisory
authority
of
district
court
“[I]t must be remembered that Brady is a constitutional mandate. It exacts
the minimum that the prosecutor, state or federal, must do” to avoid violat-
ing a defendant’s due process rights. United States v. Beasley, 576 F.2d 626,
630 (5th Cir. 1978) (emphasis added). As it is not otherwise specified by rule
or case law, district courts have the discretionary authority “to dictate by
court order when Brady material must be disclosed.” Starusko, 729 F.2d at
261 (“the district court has general discretionary authority to order the pre-
trial disclosure of Brady material ‘to ensure the effective administration of
the criminal justice system.’”) (citation omitted).29 Some districts have done
28. See also Rodriguez, 496 F.3d at 224–26 (oral statements by witness that were never
written down or recorded did not fall under Jencks Act but could be disclosable under
Brady/Giglio: “The Jencks Act requires the Government to produce to the defendant any
‘statement’ by the witness that ‘relates to the subject matter as to which the witness has tes-
tified.’ 18 U.S.C. § 3500(b); see id. § 3500(e) (defining ‘statement’). The term ‘statement,’
however, is defined to include only statements that have been memorialized in some con-
crete form, whether in a written document or electrical recording. . . . The obligation to dis-
close information covered by the Brady and Giglio rules exists without regard to whether that
information has been recorded in tangible form.”); United States v. Phibbs, 999 F.2d 1053,
1088 (6th Cir. 1993) (“Unlike the Jencks Act, the force of Brady and its progeny is not limited
to the statements and reports of witnesses.”). Cf. United States v. Coppa, 267 F.3d 132, 146
(2d Cir. 2001) (“a District Court’s power to order pretrial disclosure is constrained by the
Jencks Act,” and the district court exceeded its authority in ordering disclosure “of not only
those witness statements that fall within the ambit of Brady/Giglio, and thus may be required
to be produced in advance of trial despite the Jencks Act, but also those witness statements
that, although they might indeed contain impeachment evidence, do not rise to the level of
materiality prescribed by Agurs and Bagley for mandated production”).
29. See generally United States v. Hasting, 461 U.S. 499, 505 (1983) (“[I]n the exercise of
supervisory powers, federal courts may, within limits, formulate procedural rules not spe-
cifically required by the Constitution or the Congress. The purposes underlying use of the
supervisory powers are threefold: to implement a remedy for violation of recognized rights
. . . ; to preserve judicial integrity by ensuring that a conviction rests on appropriate consid-
erations validly before the jury . . . ; and finally, as a remedy designed to deter illegal con-
this through local rules, setting pretrial deadlines for disclosure of Brady and
Giglio material.30 Otherwise, “[h]ow the trial court proceeds to enforce disclo-
sure requirements is largely a matter of discretion to be exercised in light of
the facts of each case.” United States v. Valera, 845 F.2d 923, 927 (11th Cir.
1988).31
D. Disputed disclosure
If a defendant requests disclosure of materials that the government con-
tends are not discoverable under Brady, the trial court may conduct an in
camera review of the disputed materials.32 “To justify such a review, the de-
fendant must make some showing that the materials in question could con-
tain favorable, material evidence. . . . This showing cannot consist of mere
speculation. . . . Rather, the defendant should be able to articulate with
some specificity what evidence he hopes to find in the requested materials,
why he thinks the materials contain this evidence, and finally, why this evi-
dence would be both favorable to him and material.”33
duct.”) (citations omitted); United States v. W.R. Grace, 526 F.3d 499, 508–09 (9th Cir. 2008)
(en banc) (“We begin with the principle that the district court is charged with effectuating the
speedy and orderly administration of justice. There is universal acceptance in the federal
courts that, in carrying out this mandate, a district court has the authority to enter pretrial
case management and discovery orders designed to ensure that the relevant issues to be
tried are identified, that the parties have an opportunity to engage in appropriate discovery
and that the parties are adequately and timely prepared so that the trial can proceed effi-
ciently and intelligibly”). See also Fed. R. Crim. P. 57(b) (“Procedure when there is no con-
trolling law: A judge may regulate practice in any manner consistent with federal law, these
rules, and the local rules of the district.”).
30. See discussion of local rules in Laural Hooper et al., Fed. Judicial Ctr., A Summary of
Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and
Disclosure Practices in Criminal Cases 11–18 (2011).
31. See also United States v. Caro-Muniz, 406 F.3d 22, 29 (1st Cir. 2005) (“methods of en-
forcing disclosure requirements in criminal trials are generally left to the discretion of the
trial court”); United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002) (same); United States
v. Campagnuolo, 592 F.2d 852, 857 n.2 (5th Cir. 1979) (“The government argues that it was
not required to follow certain provisions of . . . the standing discovery order because those
provisions were broader in scope than the requirements adopted by the Supreme Court in
Brady. This argument is without merit. It is within the sound discretion of the district judge to
make any discovery order that is not barred by higher authority.”).
32. See, e.g., United States v. Prochilo, 629 F.3d 264, 268 (1st Cir. 2011).
33. Id. at 268–69 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987)). See also
Riley v. Taylor, 277 F.3d 261, 301 (3d Cir. 2001) (“A defendant seeking an in camera inspec-
tion to determine whether files contain Brady material must at least make a ‘plausible
showing’ that the inspection will reveal material evidence. . . . Mere speculation is not
enough.”); United States v. Lowder, 148 F.3d 548, 551 (5th Cir. 1998) (same); Love v. Johnson,
57 F.3d 1305, 1313 (4th Cir. 1995) (same); United States v. Navarro, 737 F.2d 625, 631 (7th Cir.
1984) (“Mere speculation that a government file may contain Brady material is not suffi-
cient to require a remand for in camera inspection, much less reversal for a new trial. A due
E. Protective orders
For good cause, such as considerations of witness safety or national security,
a trial judge may fashion an appropriate protective order to the extent nec-
essary in a particular case, consistent with the defendant’s constitutional
rights. See, e.g., United States v. Williams Companies, Inc., 562 F.3d 387, 396
(D.C. Cir. 2009) (discussing balancing of “the prosecution’s affirmative duty
to disclose material evidence ‘favorable to an accused,’” Rule 16(d)(1)’s pro-
vision that, “‘for good cause,’ the district court may ‘deny, restrict, or defer
discovery or inspection or grant other appropriate relief,’” and defendant’s
right to fair trial). See also the Classified Information Procedures Act, 18
U.S.C. App. 3, for procedures regarding protective orders for classified in-
formation.
F. Summary
This section of the Benchbook is meant to provide a general guide to the
Brady line of case law. Every case is different, however, and presents its own
particular facts and circumstances that will affect the types of Brady/Giglio
disclosure issues (if any) that may arise and how such issues may be han-
dled most appropriately. Ideally, both prosecutors and defense attorneys
will know and fulfill their respective responsibilities without significant judi-
cial intervention. However, even if things appear to be going smoothly, a
judge may want to monitor the situation, perhaps using status conferences
to ask if information is being fully and timely exchanged. A district’s particu-
lar legal culture is important. In districts where there is a history of poor co-
operation between prosecutors and the defense bar, judges may need to
take a more active role in ensuring Brady compliance than they might in dis-
tricts where there is an “open file” discovery policy and a history of trust. A
district’s local rules or standing orders also may provide specific rules for
handling disclosure.
process standard which is satisfied by mere speculation would convert Brady into a discov-
ery device and impose an undue burden upon the district court.”).
Security cards, witness fees, permits allowing travel to and from Mex-
ico, travel expenses, living expenses, some phone expenses, and
other benefits”);
(7) monetary or other benefits, paid or promised
United States v. Bagley, 473 U.S. 667, 683–84 (1985) (payments to wit-
nesses for assistance in undercover drug operation and testimony in
court); Robinson v. Mills, 592 F.3d 730, 737–38 (6th Cir. 2010) (witness
who provided the only evidence contradicting defendant’s self-
defense claim worked as paid confidential informant for local
authorities before and after defendant’s trial); United States v. Boyd,
55 F.3d 239, 244–45 (7th Cir. 1995) (witness gang members “received
a continuous stream of unlawful, indeed scandalous, favors from
staff at the U.S. Attorney’s office while jailed [and] awaiting the trial
of the defendants,” including lax supervision that allowed drug use
and drug dealing, long distance telephone calls, and sexual contact
with visitors); United States v. Librach, 520 F.2d 550, 553 (8th Cir.
1975) (“Government’s failure to disclose protective custody and its
substantial payment of almost $10,000 to” primary witness). Cf. Wil-
son v. Beard, 589 F.3d 651, 662 (3d Cir. 2009) (officer “loaned money,
interest free, to [witness] during the time period when [witness]
acted as a police informant”);
(8) non-prosecution agreements
Giglio v. United States, 405 U.S. 150, 152–55 (1972) (promise to key
witness—and alleged coconspirator—that he would not be prose-
cuted if he testified against defendant); Monroe v. Angelone, 323 F.3d
286, 312–14 (4th Cir. 2003) (prosecution promised not to prosecute
key witness—a convicted felon—for possession of a firearm); United
States v. Sanfilippo, 564 F.2d 176, 177–79 (5th Cir. 1977) (witness was
promised he would not be prosecuted in a separate case if he testi-
fied);
(9) letters to other law enforcement officials setting forth the extent of a
witness’s assistance or making recommendations on the witness’s
behalf
Jackson v. Brown, 513 F.3d 1057, 1070–72 (9th Cir. 2008) (law en-
forcement personnel promised prisoner-witness to bring his coopera-
tion to attention of judges and prosecutors in other cases to help him
get reduced sentences); United States v. Bigeleisen, 625 F.2d 203, 208
(8th Cir. 1980) (in exchange for testimony, government agreed to
write letter to Parole Commission outlining cooperation of witness
who was imprisoned for other offense);
(g) prior specific instances of conduct by any witness known to the govern-
ment that could be used to impeach the witness under Rule 608 of the
Federal Rules of Evidence, including any finding of misconduct that re-
flects upon truthfulness
United States v. Kohring, 637 F.3d 895, 906 (9th Cir. 2010) (alleged at-
tempts by key witness to suborn perjurious testimony in different case);
United States v. Torres, 569 F.3d 1277, 1282–83 (10th Cir. 2009) (evidence
that confidential informant breached prior agreement with DEA and
continued to use illegal drugs despite testifying that she had stopped);
United States v. Velarde, 485 F.3d 553, 561–63 (10th Cir. 2007) (informa-
tion that victim had made false accusations of similar nature); Benn v.
Lambert, 283 F.3d 1040, 1054–56 (9th Cir. 2002) (informant’s history of
committing crimes and “regularly” lying while acting as informant);
United States v. O’Conner, 64 F.3d 355, 357–59 (8th Cir. 1995) (per curiam)
(two witnesses attempted to influence testimony of another witness by
threatening him and his family).
(h) substance abuse, mental health issues, or physical or other impairments
known to the government that could affect any witness’s ability to per-
ceive and recall events
Gonzalez v. Wong, 667 F.3d 965, 983–84 (9th Cir. 2011) (medical reports
indicating “jailhouse informant” witness was schizophrenic and had his-
tory of lying); Wilson v. Beard, 589 F.3d 651, 660–62 (3d Cir. 2009) (gov-
ernment witness’s history of severe mental problems which showed wit-
ness was prescribed psychotropic drugs during relevant time period;
another witness also had undisclosed mental issues); Benn v. Lambert,
283 F.3d 1040, 1056 (9th Cir. 2002) (evidence that key witness was using
drugs during trial).
(i) information known to the government that could affect any witness’s
bias, such as:
(1) animosity toward the defendant
United States v. Aviles-Colon, 536 F.3d 1, 19–21 (1st Cir. 2008) (evi-
dence that defendant and codefendant were “at war” would have
advanced defendant’s claim that he was not part of charged drug
conspiracy); United States v. Sipe, 388 F.3d 471, 477 (9th Cir. 2004)
(evidence not revealed until presentence report that key witness
“personally disliked” defendant). Cf. Schledwitz v. United States, 169
F.3d 1003, 1014–15 (6th Cir. 1999) (key witness, portrayed as “neutral
and disinterested expert” during petitioner’s fraud prosecution, ac-
tually had for years been actively involved in investigating petitioner
and interviewing witnesses against him); United States v. Steinberg,
99 F.3d 1486, 1491 (9th Cir. 1996) (informant, who was key witness,
Introduction
This section is designed to provide guidance for managing both simple and
complex civil cases. It includes actions that are required by rule along with
factors to consider, alternative methods, and recommendations that experi-
enced judges have found to be helpful. Not all of the recommendations
given will be appropriate for every case, and judges should tailor the advice
to the case at hand. Also, a district’s local rules may recommend or require a
different practice or procedure, or even use different terminology.
Magistrate judges routinely handle many of the pretrial functions re-
ferred to below (see infra section II), and the term “judge” is meant to in-
clude both district and magistrate judges.
Active case management does involve additional judge time at the start
of the case, but it pays valuable dividends. It ensures that the case will pro-
ceed under an efficient but reasonable schedule, that time and expense will
not be wasted on unnecessary discovery or motions practice, and that court
and lawyer time will be devoted to the issues most important to the resolu-
tion of the case. When lawyers know the judge will be managing them, they
are more likely to engage in sound self-management. Early attention to case
management may also identify potential problems before they arise or ad-
dress them before they worsen. Active case management promotes justice
by focusing the parties and the court on what is truly in dispute and by re-
ducing undue cost and delay.
There are three stages of pretrial case management:
1. activities before the Rule 16 conference and/or order;
2. holding a Rule 16 case-management conference and issuing a case-
management order; and
3. ongoing case management.
1. Consider establishing a process for the submission of premotion letters or for pre-
motion conferences before a party can file a motion to dismiss or for summary judgment.
Such motions can be expensive and time-consuming for both the parties and the court. Some
judges have found that a premotion letter or conference requirement avoids or limits mo-
tions to dismiss or for summary judgment without the need for full briefing, or clarifies and
focuses the issues for those motions that do proceed to full briefing.
covery on class certification and on the merits, the limits that should
be imposed on class-certification discovery, and staging discovery to
decide the certification motion before proceeding to other merits dis-
covery.
D. Addressing discovery issues
1. Managing discovery. Excessive discovery is one of the chief causes of
undue cost and delay in the pretrial process. The case-management
conference can help ensure that discovery proceeds fairly and effi-
ciently in light of the needs of the case. Although you should ask the
parties what discovery they need and how much time they will need
to do it, do not rely solely on what the parties say in the Rule 26(f) dis-
covery plan. Even if the parties agree, that does not guarantee that
discovery will be proportional or proceed on a timely basis.
Remember that parties are not entitled to all discovery that is rele-
vant to the claims and defenses. The judge has a duty to ensure that
discovery is proportional to the needs of the case. Under Rule
26(b)(2)(C), the court must limit discovery that would be “unrea-
sonably cumulative or duplicative” or when “the burden or expense
of the proposed discovery outweighs its likely benefit, considering
the needs of the case, the amount in controversy, the parties’ re-
sources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.”
2. Proportionality. When needed, consider these techniques for impos-
ing proportionality limits on discovery:
(a) limiting the number of depositions (or their length), interrogato-
ries, document requests, and/or requests for admission;
(b) identifying whether discovery should initially focus on particular
issues that are most important to resolving the case;
(c) phasing discovery so that the parties initially focus on the sources
of information that are most readily available and/or most likely
to yield key information. Guide the parties to go after the “low
hanging fruit” first;
(d) limiting the number of custodians and sources of information to
be searched;
(e) delaying contention interrogatories until the end of the case, af-
ter discovery is substantially completed; and
(f) otherwise modifying the type, amount, or timing of discovery to
achieve proportionality.
3. Evidence Rule 502 non-waiver order. Consider whether to enter a
“non-waiver order” under Federal Rule of Evidence 502(d). This or-
der, which does not require party agreement, precludes the assertion
of a waiver claim based on production in the litigation. It avoids the
tate that, many judges issue final pretrial conference orders that
identify the specific steps the lawyers and parties must complete and
the documents they must file before the conference. These steps
and documents are designed to make the lawyers focus on what is ac-
tually needed to try the case. The final pretrial conference order does
not have to be one-size-fits-all. The court can tailor or adapt the order
to be sure that the steps the lawyers and parties are required to take
are appropriate for the case, address the information needed for the
trial, and do not unnecessarily increase the expense and burden of
trial preparation.
C. Requiring the parties to submit materials before the conference
Most judges require the parties to prepare and submit materials in advance
of the final pretrial conference, although specific practices vary both by dis-
trict and by judge. Some districts have local rules, while others leave the
matter to each judge. When local rules exist, they typically still allow for tai-
loring by the judge who will try the case. The two most important things to
decide are what matters the judge wants the parties to address and the form
the submissions should take.
1. Matters to be addressed in the preconference submissions. The judge
may ask the parties to address any matters that will help in planning
the trial. The following items illustrate the types of matters judges of-
ten ask the parties to address in preconference submissions:
(a) Factual issues. Require the parties to identify the factual issues to
be resolved at trial and to provide a brief summary of the party’s
position on each issue. This requires the parties to think through
the trial ahead of time and enables the judge to discuss the na-
ture and length of the trial and resolve issues that may simplify
the trial.
(b) Legal issues. Require the parties to identify disputed legal issues
that must be resolved in connection with the trial. This prepares
the judge to address those issues and, if possible, to decide them
before trial.
(c) Rule 26(a)(3)(A) disclosures. Rule 26(a)(3)(A) requires the parties
to make pretrial disclosures on three topics. The parties must
(i) identify their trial witnesses, separately identifying those
they expect to present and those they may call if the need
arises;
(ii) designate any witness that will be presented by deposition
transcript or videotape; and
(iii) identify their documents and trial exhibits, separately identi-
fying those they expect to offer and those they may offer if the
need arises.
4. Firm trial dates and fixed trial times. If the court has not previously set
a firm trial date, that date should be set at the final pretrial confer-
ence. The order scheduling the conference can advise attorneys to
come with their calendars and with information on the availability of
their witnesses and clients. Once the issues and evidence have been
identified, the judge, in consultation with the parties, can determine
the length of the trial. Consider entering an order limiting the time
for the trial, such as by allotting a specific number of trial hours to
each party. The adage that work expands to fill the time available
applies fully to trials. Trials with established time limits tend to be
more focused and more efficient.
5. Educating parties on the court’s trial practices. Many judges use the
final pretrial conference to educate lawyers and parties on the court’s
trial practices, such as the extent of lawyer participation in jury voir
dire; whether re-cross-examination generally is allowed; or whether
jurors are permitted to take notes, to have copies of exhibits, or to
submit questions to witnesses. It may also be helpful to educate the
lawyers about the court’s expectations for the conduct of trial
counsel. For example, the judge can educate the parties about proper
practice for marking and presenting exhibits, for approaching
witnesses, or for the use of courtroom equipment. Such an education
can be particularly valuable for trials involving pro se litigants.
6. Promoting settlement. If a final pretrial conference covers the kinds of
issues identified above, parties leaving such a conference will never
know more about their dispute, short of trial, than they do at that
moment. The final pretrial conference may provide a valuable oppor-
tunity for settlement. Some judges encourage the parties to engage
in settlement talks after the final pretrial conference and before trial.
E. The final pretrial order
1. Issuing the final pretrial order. After the final pretrial conference, the
judge should issue a final pretrial order that reflects the decisions
made during the conference. The final pretrial order should clearly
identify the issues to be decided at trial, the witnesses to be called,
the exhibits to be offered in evidence, and objections preserved for
trial. The order should also reflect evidentiary or other rulings made
by the judge for trial. A firm trial date should be fixed, as should the
length of the trial, where appropriate. Judges may use a proposed fi-
nal pretrial order submitted jointly by the parties, as modified by the
judge, or an order written or dictated specifically for a particular case.
2. Modifying the final pretrial order
(a) By adhering to the final pretrial order—that is, by holding the
parties to the issues, evidence, objections, and schedule identi-
fied at the final pretrial conference—the judge can help avoid
surprises and ensure that the trial will be completed in the time
allotted.
(b) Rule 16(e) provides that “[t]he court may modify the order issued
after a final pretrial conference only to prevent manifest injus-
tice.” This is a higher standard than the “good cause” test found
elsewhere in Rule 16 and is intended to reflect the relative finality
of the final pretrial order. It may be useful to restate this standard
in the final pretrial order itself.
VI. Conclusion
Case management, beginning early, is essential to controlling costs and
burdens of discovery and motions practice, particularly given the challenges
of electronic discovery issues. Ongoing judicial management as the case de-
velops, which ends in a careful and thorough final pretrial conference, will
reduce delays and unnecessary costs and increase the likelihood that the
case will be resolved on terms that reflect the strength and weaknesses of
the merits, rather than the desire to avoid disproportionate discovery or the
costs of an unnecessarily protracted trial. Effective case management is a
critical part of achieving “just, speedy, and inexpensive” case resolutions.
References
Civil Litigation Management Manual (Judicial Conference of the United
States, 2d ed. 2010)
Federal Judicial Center’s Case Management Seminar Materials
Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary
(2011)
Manual for Complex Litigation, Fourth (2004)
Moore’s Federal Practice, vols. 3 and 6
Wright, Miller & Kane, Federal Practice & Procedure, vol. 6A (2010)
Wright, Miller & Marcus, Federal Practice & Procedure, vol. 8 (2010)
26. If the jury fails to arrive at a verdict before the conclusion of the first
day’s deliberations, provide for the jurors’ 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 safe-
keeping of exhibits.
27. If the jurors report 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, di-
rect the jurors to resume their deliberations.
28. When the jury has agreed on a verdict, reconvene court and take the
verdict (see infra section 6.08: Verdict—civil).
29. Poll the jury on the request of either party or on the court’s own motion.
Fed. R. Civ. P. 48(c).
30. Thank and discharge the jury.
31. Enter judgment upon the verdict. Fed. R. Civ. P. 58.
32. Fix a time for post-trial motions.
33. Adjourn or recess court.
A. When required
1. Fed. R. Civ. P. 52(a)(1) & (2)
(a) In all cases tried without a jury or with an advisory jury, “the court
must find the facts specially and state its conclusions of law sepa-
rately.”
(b) In granting or refusing interlocutory injunctions, “the court must
similarly state the findings and conclusions that support its ac-
tion.”
Note that this is in addition to the requirements of Fed. R. Civ. P.
65(d), which requires that “[e]very order granting an injunction and
every restraining order shall set forth the reasons for its issuance;
shall be specific in terms; shall describe in reasonable detail, and not
by reference to the complaint or other document, the act or acts
sought to be restrained.”
2. Fed. R. Civ. P. 52(c)—Judgment on Partial Findings
“If a party has been fully heard on an issue during a nonjury trial and
the court finds against the party on that issue, the court may enter
judgment against the party . . . on that issue. . . . A judgment on par-
tial findings must be supported by findings of fact and conclusions of
law as required by Rule 52(a).”
3. Fed. R. Civ. P. 41(a)(2)—Voluntary Dismissal
Plaintiff’s motion for voluntary dismissal may be granted “only by
court order, on terms that the court considers proper.”
B. When not required
1. On any motions (other than those under Fed. R. Civ. P. 52(c)).
(a) Fed. R. Civ. P. 52(a)(3) states that findings of fact and conclusions
of law are “not required . . . when ruling on a motion under Rule 12
or 56 or, unless these rules provide otherwise, on any other mo-
tion.”
(b) Fed. R. Civ. P. 12 covers instances when defenses and objections
to the pleadings are made and how they are presented—by
pleading or motion. Fed. R. Civ. P. 12(c) pertains to a motion for
judgment on the pleadings. Rule 12(d) concerns motions for
judgment involving “matters outside the pleadings” and refers to
Fed. R. Civ. P. 56, which covers summary judgment.
(c) The exemption of motions, particularly those under Fed. R. Civ. P.
12 and 56, from the requirement of making findings and conclu-
sions means that most motions that are filed can be disposed of
by simply stating “granted” or “denied.”
[Note: Some circuits prefer findings and conclusions on dispositive
motions, particularly on motions for summary judgment, and may
vacate and remand orders if the district court fails to provide any rea-
soning on the record for its decision. Judges should be aware that cir-
cuit law may require, or strongly urge, detailed findings on some mo-
tions.1]
C. Form and substance
1. No particular format is required if an opinion or memorandum is
filed.
“The findings and conclusions . . . may appear in an opinion or a
memorandum of decision filed by the court.” Fed. R. Civ. P. 52(a)(1).
A memorandum that contains only a list of findings and conclusions
is adequate. The findings and conclusions need not be listed sepa-
rately in an opinion.
2. From the bench
“The findings and conclusions may be stated on the record after the
close of the evidence . . . .” Fed. R. Civ. P. 52(a)(1). It is always quicker
and sometimes just as easy to make the findings and conclusions
from the bench at the end of the case as it is to take the matter under
submission. Be sure that they are put in the record.
3. Requested findings and conclusions submitted by counsel
Specifically adopting or denying the requested findings and conclu-
sions submitted by counsel is not necessary, as it is in some state
courts. Some courts of appeals look with a jaundiced eye on district
court findings or conclusions that follow counsel’s requests verbatim.
4. Stipulations
Stipulations by counsel as to the facts are always helpful. Unlike re-
quests, they should be used verbatim. Of course, counsel cannot
stipulate as to the applicable law; they can only suggest.
5. Length and style of opinion
The length and style of the opinion are left to the individual judge,
but from the viewpoint of an appellate court, there are certain basic
elements that should be included:
1. See, e.g., Brewster of Lynchburg, Inc. v. Dial Corp., 33 F.3d 355 (4th Cir. 1994); Pasquino
v. Prather, 13 F.3d 1049 (7th Cir. 1994); Thomas v. N.A. Chase Manhattan Bank, 994 F.2d 236,
241 n.6 (5th Cir. 1993); Telectronics Pacing Sys. v. Ventritex, Inc., 982 F.2d 1520, 1526–27
(Fed. Cir. 1992); United States v. Woods, 885 F.2d 352 (6th Cir. 1989); Clay v. Equifax, Inc., 762
F.2d 952 (11th Cir. 1985).
1. “[A] defendant satisfies the requirements of Batson’s first step by producing evidence
sufficient to permit the trial judge to draw an inference that discrimination has occurred.”
The defendant does not have to show that it was “more likely than not” that discrimination
occurred. Johnson, 545 U.S. at 170.
Fed. R. Civ. P. 47(a) provides that the court “may permit the parties or their
attorneys to examine prospective jurors or may itself do so.” The following
outline for an initial in-depth voir dire examination of the entire panel by the
court assumes that
1. if there are affirmative responses to any questions, follow-up ques-
tions will be addressed to the juror(s) (at sidebar, if such questions
concern private or potentially embarrassing matters); and
2. the court and counsel have been furnished with the name, address,
age, and occupation of each prospective juror.
If the court conducts the entire examination, it should require counsel to
submit proposed voir dire questions before trial to permit the court to incor-
porate additional questions at the appropriate places in this outline.
Outline
A. Have the jury panel sworn.
B. Explain to the jury panel that the purpose of the voir dire examination is
1. to enable the court to determine whether any prospective juror
should be excused for cause; and
2. to enable counsel for the parties to exercise their individual judg-
ment with respect to peremptory challenges—that is, challenges for
which counsel need not give a reason.
C. Indicate that the case is expected to take ___ days to try, and ask if this
fact presents a special problem to any member of the panel.
D. Briefly describe the case that is about to be tried.
E. Ask if any member of the panel has heard or read anything about the
case.
F. Introduce counsel (or have counsel introduce themselves) and ask if any
member of the panel or his or her immediate family knows or has had
any business dealings with any of the counsel or their law firms.
G. Introduce the parties (or have counsel introduce the parties) and ask if
any member of the panel or his or her immediate family
1. is personally acquainted with,
2. is related to,
3. has had business dealings with,
4. is currently or was formerly employed by,
5. has had any other relationship or business connection with, or
6. is a stockholder of any party in the case.
Preliminary instructions
Members of the jury: Now that you have been sworn, I will give you some
preliminary instructions to guide you in your participation in the trial.
Evidence
The evidence from which you will find the facts will consist of the testimony
of witnesses, documents and other things received into the record as exhib-
its, and any facts that the lawyers agree to or stipulate to or that the court
may instruct you to find.
Certain things are not evidence and must not be considered by you. I will
list them for you now.
1. Statements, arguments, and questions by lawyers are not evidence.
2. Objections to questions are not evidence. Lawyers have an obligation
to their clients to make objections when they believe evidence being
offered is improper under the rules of evidence. You should not be
influenced by the objection or by the court’s ruling on it. If the objec-
tion is sustained, ignore the question. If it is overruled, treat the an-
swer like any other. If you are instructed that some item of evidence
is received for a limited purpose only, you must follow that instruc-
tion.
3. Testimony that the court has excluded or told you to disregard is not
evidence and must not be considered.
4. Anything you may have seen or heard outside the courtroom is not
evidence and must be disregarded. You are to decide the case solely
on the evidence presented here in the courtroom.
There are two kinds of evidence: direct and circumstantial. Direct evi-
dence is direct proof of a fact, such as testimony of an eyewitness. Circum-
stantial evidence is proof of facts from which you may infer or conclude that
other facts exist. I will give you further instructions on these as well as other
matters at the end of the case, but keep in mind that you may consider both
kinds of evidence.
It will be up to you to decide which witnesses to believe, which witnesses
not to believe, and how much of any witness’s testimony to accept or reject.
I will give you some guidelines for determining the credibility of witnesses at
the end of the case.
Burden of proof
This is a civil case. The plaintiff has the burden of proving his [her] case by
what is called the preponderance of the evidence. That means the plaintiff
has to produce evidence which, considered in the light of all the facts, leads
you to believe that what the plaintiff claims is more likely true than not. To
put it differently, if you were to put the plaintiff’s and the defendant’s evi-
dence on opposite sides of the scales, the plaintiff would have to make the
scales tip somewhat on his [her] side. If the plaintiff fails to meet this bur-
den, the verdict must be for the defendant.
Those of you who have sat on criminal cases will have heard of proof
beyond a reasonable doubt. That requirement does not apply to a civil case;
therefore, you should put it out of your mind.
rials, search the Internet, websites, or blogs, or use any other electronic
tools to obtain information about this case or to help you decide the case.
Please do not try to find out information from any source outside the con-
fines of this courtroom.
Until you retire to deliberate, you may not discuss this case with anyone,
even your fellow jurors. After you retire to deliberate, you may begin dis-
cussing the case with your fellow jurors, but you cannot discuss the case
with anyone else until you have returned a verdict and the case is at an end.
I know that many of you use cell phones, Blackberries, the Internet, and
other tools of technology. You also must not talk to anyone at any time
about this case or use these tools to communicate electronically with any-
one about the case. This includes your family and friends. You may not
communicate with anyone about the case on your cell phone, through e-
mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or
website, including Facebook, Google+, My Space, LinkedIn, or YouTube.
You may not use any similar technology of social media, even if I have not
specifically mentioned it here. I expect you will inform me as soon as you
become aware of another juror’s violation of these instructions.1 A juror
who violates these restrictions jeopardizes the fairness of these proceedings,
and a mistrial could result, which would require the entire trial process to
start over.
Finally, do not form any opinion until all the evidence is in. Keep an
open mind until you start your deliberations at the end of the case.
I hope that for all of you this case is interesting and noteworthy.
[If the court decides to allow note taking, add:]
If you want to take notes during the course of the trial, you may do so.
However, it is difficult to take detailed notes and pay attention to what the
witnesses are saying at the same time. If you do take notes, be sure that
your note taking does not interfere with your listening to and considering all
of the evidence. Also, if you do take notes, do not discuss them with anyone
before you begin your deliberations. Do not take your notes with you at the
end of the day—be sure to leave them in the jury room.
1. Taken from “Proposed Model Jury Instructions: The Use of Electronic Technology to
Conduct Research on or Communicate about a Case,” prepared by the Judicial Conference
Committee on Court Administration and Case Management (June 2012). See Memorandum,
“Juror Use of Social Media” from Judge Julie A. Robinson, Chair, Committee on Court Ad-
ministration and Case Management to all United States District Court Judges (Aug. 6, 2012),
available at http://jnet.ao.dcn/img/assets/7324/DIR12-074.pdf. See also “Strategies for Pre-
venting Jurors’ Use of Social Media During Trials and Deliberations,” in Jurors’ Use of So-
cial Media During Trials and Deliberations: A Report to the Judicial Conference Committee
on Court Administration and Case Management 5–10 (Federal Judicial Center Nov. 22,
2011), available at http://cwn.fjc.dcn/public/pdf.nsf/lookup/DunnJuror.pdf/$file/DunnJuror.
pdf.
If you choose not to take notes, remember that it is your own individual
responsibility to listen carefully to the evidence. You cannot give this re-
sponsibility to someone who is taking notes. We depend on the judgment of
all members of the jury; you all must remember the evidence in this case.2
2. For another sample instruction on note taking, see Civil Litigation Management
Manual at Appendix A, Form 44 (Judicial Conference of the United States, 2d ed. 2010).
Introductory note
Fed. R. Civ. P. 51(b) outlines the procedure for the submission and consid-
eration of requests by the parties for specific jury instructions. It requires
1. that the court inform counsel before closing arguments of its pro-
posed instructions and its proposed action upon the instructions re-
quested by counsel; and
2. that the court give counsel adequate opportunity outside the hear-
ing of the jury to object to the court’s instructions.
There is no prescribed method for the court to settle on its final set of in-
structions. Some courts hold an on-the-record charge conference with coun-
sel during trial. At that conference, the tendered instructions are discussed
and are accepted, rejected, or modified by the court.
Other courts, without holding a charge conference, prepare a set of pro-
posed instructions from those tendered by counsel. These courts then give a
copy of the proposed instructions to all counsel and permit counsel to take
exception to the instructions. Thereafter, the court may revise its instruc-
tions if convinced by counsel in their objections that the instructions should
be modified.
Still other courts require counsel to confer during trial and to agree, to the
extent that they can, on the instructions that should be given. The court
then considers only those instructions upon which the parties cannot agree.
The court may, of course, give an instruction to the jury that neither
party has tendered.
While the court is free to ignore tendered instructions and to instruct the
jury sua sponte, the usual practice is for the court to formulate the final in-
structions with the assistance of counsel and principally from the instruc-
tions counsel tendered.
Local practice varies as to whether a written copy of the instructions is
given to the jury for use during its deliberations. Many courts always give the
jury a written copy of the instructions. Some courts have the instructions re-
corded as they are given in court and permit the jury to play them back in
the jury room. Some courts do neither but will repeat some or all of the in-
structions in response to a request from the jury.
Outline of instructions
Instructions delivered at the end of a case consist of three parts: Instructions
on general rules that define and control the jury’s duties; statement of rules
of law that the jury must apply; and rules and guidelines for jury delibera-
tion and return of verdict.
A. General rules
1. Outline the duty of the jury
(a) to find facts from admitted evidence;
(b) to apply law as given by the court to the facts as found by the jury;
and
(c) to decide the case on the evidence and the law regardless of per-
sonal opinions and without bias, prejudice, or sympathy.
2. Discuss the burden of proof in civil trials and explain how it differs
from the burden of proof in criminal trials.
3. Indicate the evidence to be considered:
(a) sworn testimony of witnesses;
(b) exhibits;
(c) stipulations; and
(d) facts judicially noticed.
4. Indicate what is not evidence:
(a) arguments and statements of counsel;
(b) questions to witnesses;
(c) evidence excluded by rulings of the court.
B. Delineate with precision and with specific consideration of the law of
your circuit each claim and defense of the parties that is to be submitted
to the jury for their consideration.
C. Jury procedure
1. Selection and duty of the foreperson.
2. Process of jury deliberation:
(a) rational discussion of the evidence by all jurors for the purpose of
reaching a unanimous verdict;
(b) each juror is to decide the case for himself or herself in the context
of the evidence and the law, with proper consideration of other
jurors’ views; and
(c) jurors may reconsider their views if persuaded by rational discus-
sion but not solely for the sake of reaching a unanimous verdict.
3. Absent a stipulation, the verdict must be unanimous on the issue
submitted (Fed. R. Civ. P. 48).
4. Explain the verdict form, if used.1
5. Jury communications with the court during deliberations must be in
writing and signed by the foreperson.
1. Consider whether to use a special verdict (Fed. R. Civ. P. 49(a)). It can be a useful de-
vice to reduce the risk of having to retry the entire case.
2. Taken from “Proposed Model Jury Instructions: The Use of Electronic Technology to
Conduct Research on or Communicate about a Case,” prepared by the Judicial Conference
Committee on Court Administration and Case Management (June 2012). See Memorandum,
“Juror Use of Social Media” from Judge Julie A. Robinson, Chair, Committee on Court Ad-
ministration and Case Management to all United States District Court Judges (Aug. 6, 2012),
available at http://jnet.ao.dcn/img/assets/7324/DIR12-074.pdf. See also “Strategies for Pre-
venting Jurors’ Use of Social Media During Trials and Deliberations,” in Jurors’ Use of So-
cial Media During Trials and Deliberations: A Report to the Judicial Conference Committee
on Court Administration and Case Management 5–10 (Federal Judicial Center Nov. 22,
2011), available at http://cwn.fjc.dcn/public/pdf.nsf/lookup/DunnJuror.pdf/$file/DunnJuror.
pdf.
D. Consider providing the jury with a written copy or transcript of the jury
instructions.
Listed below are duties in civil matters that may be referred to magistrate
judges. Most districts have local rules or standing orders governing referrals
to magistrate judges.
For a more comprehensive listing of the duties magistrate judges may
perform, see the Inventory of United States Magistrate Judge Duties (Decem-
ber 1999).1 This inventory is available on request from the Magistrate Judges
Division of the Administrative Office of the U.S. Courts and also appears in
Chapter 3, “Jurisdiction,” of the Legal Manual for United States Magistrate
Judges, published by the Administrative Office.
A magistrate judge may conduct:
1. All phases of a civil case, with the written consent of the parties.2 28
U.S.C. § 636(c)(1); Fed. R. Civ. P. 73. Appeal is to the court of appeals,
as in any other civil case. 28 U.S.C. § 636(c)(3); Fed. R. Civ. P. 73(c).
See generally supra section 6.02: Trial outline—civil.3
2. Pretrial matters:
(a) A magistrate judge may conduct a Rule 16 pretrial conference and
hear and determine nondispositive pretrial matters, such as dis-
covery disputes and requests for bifurcation or consolidation.
Upon timely objection by a party, a district court shall consider
such objections and modify or set aside any portion of the magis-
1. The Inventory was updated online in July 2009 and is available at http://jnet.ao.dcn/
Judges/Magistrate_Judges/Authority/Inventory.html. The Administrative Office also pro-
vides an online web page that summarizes more recent decisions and articles relating to
the duties and authority of magistrate judges at http://jnet.ao.dcn/Judges/Magistrate_
Judges/Authority/Decisions. html.
2. The Supreme Court recently held that lack of written or express consent might not
deprive the magistrate judge of jurisdiction—implied consent was sufficient in a case in
which, after being informed of the right to trial before a district judge, a party voluntarily
appeared before a magistrate judge and tried the case to conclusion. Roell v. Withrow, 538
U.S. 580, 586–91 (2003) (“although the specific referral procedures in 28 U.S.C. § 636(c)(2)
and Federal Rule of Civil Procedure 73(b) are by no means just advisory, the text and struc-
ture of the section as a whole suggest that a defect in the referral to a full-time magistrate
judge under § 636(c)(2) does not eliminate that magistrate judge’s ‘civil jurisdiction’ under
§ 636(c)(1) so long as the parties have in fact voluntarily consented”). However, the Bench-
book Committee believes that Roell is an unusual case and strongly recommends that writ-
ten consent be obtained before proceeding.
3. For an illustrative consent form and order of reference to a magistrate judge, see
Civil Litigation Management Manual (Judicial Conference of the United States, 2d ed. 2010),
Sample Forms 50–53.
Background
The purpose, procedure, and penalty for criminal contempt differ from
those for civil contempt. It is essential that the trial judge make clear on the
record whether the proceeding is for civil or criminal contempt.
The purpose of criminal contempt is to punish a person for a past act of
contempt. Criminal contempt has the characteristics of a crime, and the con-
temnor is cloaked with the safeguards of one accused of a crime. The pur-
pose of civil contempt is to compel someone to do or not do a certain act.
Case law makes clear that the contempt power is one to be exercised with
the greatest restraint and that, in exercising that power, a court should exert
only the power needed to achieve the desired end.
Procedure
when
contemptuous
conduct
is
personally
observed
by
the
judge
and
immediate
action
is
required
When you see or hear contemptuous conduct, you may but are not com-
pelled to proceed under Fed. R. Crim. P. 42(b).
This summary procedure is appropriate only when immediate action is
needed. It is reserved for conduct that actually disrupts or obstructs court
proceedings and for situations in which immediate action is necessary to re-
store the court’s authority. The conduct must be more flagrant than mere
disrespect to the judge or an affront to the judge’s sense of dignity.1
If the conduct (such as shouting in the courtroom) does interfere with
court proceedings, proceed as follows:
1. First, warn the person that if a repetition occurs, he or she may be re-
moved from the courtroom or may be found in criminal contempt.
2. If marshals are not already in the courtroom, summon them, so that
they will be present if the disruptive conduct is repeated.
3. If the offender repeats the disruptive conduct, order him or her re-
moved from the courtroom.
4. If the conduct is so disruptive that removing the offender is inade-
quate to reestablish the authority and dignity of the court, follow the
Fed. R. Crim. P. 42(b) procedure. [Note: In summary proceedings un-
der Rule 42(b), the court may impose a sentence that does not exceed
the punishment authorized for a petty offense, i.e., imprisonment of
no more than six months or a fine of no more than $5,000 if the con-
temnor is an individual, $10,000 if the contemnor is an organization.
If more severe punishment seems appropriate, the court must pro-
ceed by notice under Rule 42(a) and accord the contemnor the right
to a jury trial. (Contempt fines exceeding the petty offense limit on
organizations have been imposed without the right to a jury trial. See
Muniz v. Hoffman, 422 U.S. 454 (1975); United States v. Twentieth
Century Fox Film Corp., 882 F.2d 656 (2d Cir. 1989); United States v.
Troxler Hosiery Co., 681 F.2d 934 (4th Cir. 1982). These cases, how-
ever, did not involve summary proceedings under Rule 42(a) (now
42(b)).]
5. Before proceeding, be sure that an adequate number of marshals are
in the courtroom.
6. Retire the jury. Have the offender brought before you. (The offender
is not entitled to counsel in a summary proceeding.)
7. Advise the offender that you intend to find him or her in criminal
contempt for obstructing the administration of justice by reason of
[here describe the conduct].
8. Ask the offender if he or she would care to say anything in mitigation.
9. After hearing the offender out, impose sentence in words to this ef-
fect:
I find you in criminal contempt for so conducting yourself in this
courtroom that you obstructed the administration of justice. The
conduct for which I find you in criminal contempt was [here de-
scribe the conduct observed by you]. I sentence you to ____
hour(s) [day(s)] in jail [or I fine you $____] for that conduct. [In
criminal contempt you cannot both imprison and fine.] The serv-
ing of this sentence shall commence at once [or shall commence
at the conclusion of this trial].
(a) No sentencing guideline has been prescribed for contempt be-
cause of the variety of behaviors covered. See U.S.S.G. § 2J1.1,
Application Note 1.2 In the absence of a guideline, the court is to
“impose an appropriate sentence, having due regard for the pur-
poses set forth in [18 U.S.C. § 3553(a)(2),] . . . for the relationship
of the sentence imposed to sentences prescribed by guidelines
applicable to similar offenses and offenders, and to the applica-
2. The application notes do, however, provide cross-references to other guidelines for
when the contemptuous conduct involves obstruction of justice, willful failure to pay court-
ordered child support, or violation of a judicial order enjoining fraudulent behavior.
Procedure
when
contemptuous
conduct
is
not
personally
observed
by
the
judge
or
when
the
conduct
is
observed
by
the
judge
but
requires
no
immediate
action
If you become aware of conduct that is within the contemplation of 18 U.S.C.
§ 401 but did not occur in your presence, or if you observed contemptuous
conduct but it did not actually disrupt court proceedings, you must proceed
under Fed. R. Crim. P. 42(a), which requires that the contempt be prose-
cuted by notice rather than summarily.
8. If the defendant has been afforded the right to a jury trial, there is no
statutory maximum to the fine or imprisonment that may be im-
posed. However, you may not impose both imprisonment and a fine.
Because of the variety of behaviors covered, no sentencing guideline
has been prescribed for contempt. See U.S.S.G. § 2J1.1, Application
Note 1.3 In the absence of a guideline, the court is to “impose an ap-
propriate sentence, having due regard for the purposes set forth in
[18 U.S.C. § 3553(a)(2),] . . . for the relationship of the sentence im-
posed to sentences prescribed by guidelines applicable to similar of-
fenses and offenders, and to the applicable policy statements of the
Sentencing Commission.” 18 U.S.C. § 3553(b)(1).
3. The application notes do, however, provide cross-references to other guidelines for
when the contemptuous conduct involves obstruction of justice, willful failure to pay court-
ordered child support, or violation of a judicial order enjoining fraudulent behavior.
Background
The purpose, procedure, and penalty for civil contempt differ from NOTE
those for criminal contempt. It is essential that the trial judge make If you are dealing
clear on the record whether the proceeding is for civil or criminal con- with a recalcitrant
tempt. witness, see supra
The purpose of criminal contempt is to punish a person for a past section 5.04: Han-
dling the recalci-
act of contempt. Criminal contempt has the characteristics of a crime, trant witness.
and the contemnor is cloaked with the safeguards of one accused of a
crime. The primary purpose of civil contempt is to compel someone to
do or not do a certain act.
Case law makes clear that the contempt power is one to be
exercised with the greatest restraint and that, in exercising that power,
a court should exert only the power needed to achieve the desired end.
Civil contempt serves one or both of the following purposes:
1. to coerce the contemnor into complying in the future with a court or-
der; or
2. to compensate the complainant for damages resulting from the con-
temnor’s past noncompliance.
(C) state the essential facts constituting the charged criminal con-
tempt and describe it as such.
(2) Appointing a Prosecutor. The court must request that the contempt be
prosecuted by an attorney for the government, unless the interest of
justice requires the appointment of another attorney. If the govern-
ment declines the request, the court must appoint another attorney to
prosecute the attempt.
(3) Trial and Disposition. A person being prosecuted for criminal con-
tempt is entitled to a jury trial in any case in which federal law so pro-
vides and must be released or detained as Rule 46 provides. If the
criminal contempt involves disrespect toward or criticism of a judge,
that judge is disqualified from presiding at the contempt trial or hear-
ing unless the defendant consents. Upon a finding or verdict of guilty,
the court must impose the punishment.
B.
TRO
without
notice
Fed. R. Civ. P. 65(b)(1) permits granting a TRO without written or oral notice
to the adverse party or the party’s attorney 1 only if
1. there are specific facts, shown by affidavit or verified complaint,
clearly indicating that immediate and irreparable injury will result to
the applicant before the adverse party or his or her attorney can be
heard in opposition; and
2. there is a written certification of the attorney’s attempts, if any, to
give notice, and an explanation of why notice should not be required.
Other factors the court may consider are
1. probability of success on the merits;
2. balance of harm to other interested parties if the TRO is issued
against the harm to the applicant if relief is denied; and
3. the public interest.
C.
TRO
with
notice
1. If notice is given, the standards governing issuance of a preliminary
injunction are applicable.
2. The petition may be treated like one for a preliminary injunction if
there is notice and a hearing, and adequate opportunity is provided
for developing legal and factual issues. The court should, however,
1. The advisory committee notes stress that “informal notice, which may be commun-
icated to the attorney rather than the adverse party, is to be preferred to no notice at all.”
Note to 1966 amendment to Fed. R. Crim. P. 65(b).
D.
Contents
of
order
Fed. R. Civ. P. 65(b)(2) provides that if the TRO is granted without notice, the
order shall
1. be endorsed with the date and hour of the issuance;
2. be filed forthwith in the clerk’s office and entered on the record;
3. define the injury and state why it is irreparable and why the order
was granted without notice; and
4. expire by its terms within such time after entry as the court fixes (but
no more than fourteen days), unless within the time fixed by the
court good cause is shown to extend the order for a like period, or un-
less the party against whom the order is directed consents to a longer
period.
These requirements, particularly with regard to a restraining order’s dura-
tion, should be applied to a TRO even when notice has been given. In addi-
tion, Fed. R. Civ. P. 65(d) provides that every restraining order shall
1. set forth the reasons for its issuance;
2. be specific in terms;
3. describe in reasonable detail, and not by reference to the complaint
or other documents, the act or acts to be restrained 2; and
4. bind only the parties to the action; the parties’ officers, agents, ser-
vants, employees, and attorneys; and persons in active concert or
participation with the parties who receive actual notice of the order.
E.
Motion
for
dissolution
after
notice
On two days’ notice to the party that obtained the TRO without notice, or on
such shorter notice as the court may prescribe, the adverse party may ap-
pear and contest a TRO that was issued without notice. Fed. R. Civ. P.
65(b)(4).
2. Care should be taken to ensure that the terms of the order are clear and specific. As
one court phrased it, “a court must craft its orders so that those who seek to obey may know
precisely what the court intends to forbid.” American Red Cross v. Palm Beach Blood Bank,
Inc., 143 F.3d 1407, 1411 (11th Cir. 1998).
F.
Security
A TRO may not be issued unless the applicant gives such security as the
court fixes. This security requirement does not apply to the United States.
Fed. R. Civ. P. 65(c).
G.
The
hearing
record
The hearing on an application for a TRO, including pleadings and evidence
taken, becomes a part of the record in the later injunction hearing and need
not be repeated.
Whether or not the TRO is granted, Fed. R. Civ. P. 52(a)(1) & (2) requires
the court to “state the findings [of fact] and conclusions [of law] that support
its action.” The court’s “findings and conclusions may be stated on the re-
cord after the close of the evidence or may appear in an opinion or a memo-
randum of decision filed by the court.”
B.
Burden
of
proof
The moving party has the burden of demonstrating entitlement to relief.
Rule 65 does not specify the requirements for a preliminary injunction, and
they vary from circuit to circuit, but the courts generally consider
1. the likelihood that the moving party will suffer irreparable injury in
the absence of a preliminary injunction;
2. the moving party’s likelihood of success on the merits;
3. the balance of hardships between the parties (and any relevant non-
parties); and
C.
Preparing
for
the
hearing
Because a decision must be reached quickly and the time to prepare for the
hearing may be brief, it may help the parties and the court if some matters
are addressed before the hearing. The court may, for example,
1. narrow the legal scope of the hearing by eliminating claims, de-
fenses, and counterclaims that do not relate directly to the decision
of whether to issue a preliminary injunction;
2. narrow the factual scope of the hearing by directing the parties to
submit statements of undisputed facts or requests for admission;
3. direct counsel to identify any witnesses in advance, along with the
substance of their testimony and the exhibits they will sponsor;
4. require that direct testimony be offered in the form of adopted narra-
tive statements, exchanged in advance, which will be subject to mo-
tions to strike, to cross-examination, and to redirect at the hearing if
issues of credibility are presented;
5. direct counsel to exchange proposed exhibits in advance, give notice
that objections may be treated as waived if not made in writing in ad-
vance of the hearing, and resolve objections to foundation before the
hearing;
6. direct counsel to present stipulated summaries or extracts of any
deposition testimony to be used in lieu of lengthy readings of tran-
scripts; and
7. direct counsel to submit briefs in advance of the hearing, along with
proposed findings of fact and conclusions of law.
If the court determines that no substantial factual disputes exist, consider
holding the hearing only on the affidavits.
D.
Advancing
trial
on
the
merits
At any time before or during the hearing on the motion, trial on the merits
may be advanced and consolidated with the preliminary injunction motion,
on motion or by the court sua sponte. Fed. R. Civ. P. 65(a)(2). It should be
done on notice and might be appropriate when, for example, expedited dis-
covery has produced virtually all of the discovery that would be produced for
E.
Decision
and
findings
As with a TRO, see supra section I.D, Rule 65(d)(1) sets out the form and
scope of the order granting an injunction (or restraining order) and notes,
inter alia, that such orders shall
1. set forth the reasons for issuance (which should, of course, include a
finding of no adequate remedy at law); and
2. describe in reasonable detail and not by reference to other docu-
ments the acts to be restrained or compelled. Thus, such an order
should adequately inform the reader of the acts that are enjoined or
compelled.
In addition, Fed. R. Civ. P. 52(a)(1) & (2) states that when “granting or refus-
ing an interlocutory injunction, the court must . . . state the findings [of fact]
and conclusions [of law] that support its action.” The court’s “findings and
conclusions may be stated on the record after the close of the evidence or
may appear in an opinion or a memorandum of decision filed by the court.”
Note that a preliminary injunction is binding “only upon the parties to
the action, their officers, agents, servants, employees, and attorneys, and
upon those persons in active concert or participation with them who receive
actual notice of the order of personal service or otherwise.” Fed. R. Civ. P.
65(d)(2).
F.
Security
As with a temporary restraining order, a preliminary injunction generally
may not be issued unless the applicant posts security in an amount deemed
appropriate by the court in its discretion, although a nominal amount may
be required. Fed. R. Civ. P. 65(c). The court may also dispense with security
when, for example, the movant has adequate resources to pay damages for a
wrongfully issued injunction. If nominal or no security is ordered, the court
should explain its reasons. The rule provides that no security shall be re-
quired of the government or its officers or agencies.
Procedure
The Jury Act, 28 U.S.C. § 1863(b)(7), states that the district jury plans re-
quired by that section may provide that the names of persons summoned
for possible grand jury service be kept confidential. In addition, the Judicial
Conference of the United States recommended at its session in September
1981 “that the district courts reexamine their jury selection plans . . . to con-
sider whether the names of grand jurors should be excluded from public rec-
ords.” Report of the Proceedings of the Judicial Conference of the United States
39–40 (1981). The jury plans of many of the district courts now provide,
therefore, that the names of grand jurors be kept confidential. Accordingly,
the grand jury must be selected in closed session with only necessary court
personnel and attorneys for the government in attendance so that the ju-
rors’ names will not be revealed in open court. Fed. R. Crim. P. 6(d) and
(e)(5).
The grand jury consists of not fewer than sixteen persons (a quorum)
and not more than twenty-three persons. 18 U.S.C. § 3321; Fed. R. Crim. P.
6(a)(1). Alternate grand jurors may be selected. Fed. R. Crim. P. 6(a)(2). After
twenty-three persons have been selected as regular members of the grand
jury, the usual practice in some districts is to call four to six alternates, who
are sworn and instructed with the regular members. These alternates are
then excused with the explanation that they will be subject to call, in the or-
der in which they were selected, if it subsequently becomes necessary to ex-
cuse one of the regular members and replace that person with an alternate
(to facilitate the assemblage of a quorum during the remaining life of the
grand jury).
To accommodate the selection of alternates and the possibility of a few
excusals for cause, the panel summoned to the courtroom for grand jury se-
lection should consist of thirty to thirty-five persons.
A regular grand jury may serve up to eighteen months, followed by one
extension, if that is determined to be in the public interest, for up to six
months. Fed. R. Crim. P. 6(g). The usual term varies from district to district.
Special grand juries formed pursuant to 18 U.S.C. §§ 3331–3333 may serve,
with extensions, up to thirty-six months, and they have the added power of
making certain reports under § 3333.
[Excuse any members of the panel whose responses to the voir dire
questions dictate that they should be excused for cause.]
1. This grand jury charge was written by the Benchbook Committee of the Federal Judi-
cial Center and the Court Administration and Case Management Committee of the Judicial
Conference of the United States. It was approved in 2005 as a replacement for each group’s
earlier grand jury charge.
onment for more than one year. The purpose of the grand jury is to
determine whether there is sufficient evidence to justify a formal ac-
cusation against a person—that is, to determine if there is “probable
cause” to believe the person committed a crime. If law enforcement
officials were not required to submit to an impartial grand jury proof
of guilt as to a proposed charge against a person suspected of hav-
ing committed a crime, they would be free to arrest a suspect and
bring that suspect to trial no matter how little evidence existed to
support the charge.
3. The grand jury is an independent body and does not belong to any
branch of the government. As members of the grand jury, you, in a
very real sense, stand between the government and the person being
investigated by the government. A federal grand jury must never be
made an instrument of private prejudice, vengeance, or malice. It is
your duty to see to it that indictments are returned only against
those who you find probable cause to believe are guilty and to see to
it that the innocent are not compelled to go to trial.
4. A member of the grand jury who is related by blood or marriage to a
person under investigation, or who knows that person well enough
to have a biased state of mind as to that person, or is biased for any
reason, should not participate in the investigation of that person or
in the return of the indictment. This does not mean that if you have
an opinion you should not participate in the investigation. However,
it does mean that if you have a fixed opinion before you hear any evi-
dence, either on a basis of friendship or ill will or some other similar
motivation, you should not participate in that investigation and in
voting on the indictment.
5. Sixteen of the twenty-three members of the grand jury constitute a
quorum and must be present for the transaction of any business. If
fewer than this number are present, even for a moment, the proceed-
ings of the grand jury must stop.
Limitation on the powers of the grand jury
6. Although as grand jurors, you have extensive powers, they are lim-
ited in several important respects.
7. You can only investigate conduct which violates federal criminal
laws. Criminal activity which violates state law is outside your in-
quiry. Sometimes, though, the same conduct violates both federal
and state law, and this you may properly consider.
8. There is also a geographic limitation on the scope of your inquiries in
the exercise of your power. You may inquire only as to federal of-
fenses committed in this district.
9. You cannot judge the wisdom of the criminal laws enacted by Con-
gress, that is, whether or not there should or should not be a federal
law designating certain activity as criminal. That is to be determined
by Congress and not by you.
10. Furthermore, when deciding whether or not to indict, you should not
consider punishment in the event of conviction.
The grand jury’s tasks and procedures
11. The cases which you will hear will come before you in various ways.
Frequently, suspects are arrested during or shortly after the commis-
sion of an alleged crime, and they are taken before a magistrate
judge, who then holds a preliminary hearing to determine whether
there is probable cause to believe that the person has committed a
crime. If the magistrate judge finds such probable cause, he or she
will direct that the person be held for the action of the grand jury so
that you can independently consider whether there should be an in-
dictment.
12. Other cases will be brought before you by a government attorney—
the U.S. attorney or an assistant U.S. attorney—before an arrest but
after an investigation has been conducted by a governmental agency,
such as the Federal Bureau of Investigation, the Treasury Depart-
ment, the Drug Enforcement Administration, Postal Authorities, or
other federal law enforcement officials.
13. Since the government attorney has the duty of prosecuting persons
charged with the commission of federal crimes, the government at-
torney will present the matters which the government wants you to
consider. The government will point out to you the laws which it be-
lieves have been violated, and will subpoena for testimony before
you such witnesses as the government attorney may consider impor-
tant and necessary and also any other witnesses that you may re-
quest or direct be called before you.
14. If during the course of your hearings, a different crime other than the
one you are investigating surfaces, you have the right to pursue this
new crime. Although you can subpoena new witnesses and docu-
ments, you have no power to employ investigators or to expend fed-
eral funds for investigative purposes. If the government attorney re-
fuses to assist you or if you believe he or she is not acting impartially,
you may take it up with me or any judge of this court. You may use
this power even over the active opposition of the government’s at-
torneys, if you believe it is necessary to do so in the interest of jus-
tice.
Evidence
15. The evidence you will consider will normally consist of oral testimony
of witnesses and written documents. Each witness will appear before
you separately. When the witness first appears before you, the grand
jury foreperson will administer to the witness an oath or affirmation
to testify truthfully. After this has been accomplished, the witness
may be questioned. Ordinarily, the government attorney questions
the witness first. Next, the foreperson may question the witness, and
then any other members of the grand jury may ask questions. In the
event a witness does not speak or understand the English language,
an interpreter may be brought into the grand jury room to assist in
the questioning.
16. Witnesses should be treated courteously and questions put to them
in an orderly fashion. If you have any doubt whether it is proper to
ask a particular question, ask the government attorney for advice. If
necessary, a ruling may be obtained from the court.
17. You alone decide how many witnesses you want to hear. You can
subpoena witnesses from anywhere in the country, directing the gov-
ernment attorney to issue necessary subpoenas. However, persons
should not ordinarily be subjected to disruption of their daily lives,
harassed, annoyed, or inconvenienced, nor should public funds be
expended to bring in witnesses unless you believe they can provide
meaningful evidence which will assist you in your investigation.
18. Every witness has certain rights when appearing before a grand jury.
Witnesses have the right to refuse to answer any question if the an-
swer would tend to incriminate them and the right to know that any-
thing they say may be used against them. The grand jury should hold
no prejudice against a witness who exercises the right against com-
pulsory self-incrimination, and this can play no part in the return of
any indictment.
19. Although witnesses are not permitted to have a lawyer present with
them in the grand jury room, the law permits witnesses to confer
with their lawyer outside of the grand jury room. Since an appear-
ance before a grand jury may present complex legal problems requir-
ing the assistance of a lawyer, you also cannot hold it against a wit-
ness if a witness chooses to exercise this right and leaves the grand
jury room to confer with an attorney.
20. Ordinarily, neither the person being investigated by the government
nor any witnesses on behalf of that person will testify before the
grand jury. Upon his or her request, preferably in writing, you may
afford that person an opportunity to appear before you. Because the
appearance of the person being investigated before you may raise
29. Indictments which have been signed as a true bill will be presented to
a judge [or a magistrate judge] in open court by your foreperson at
the conclusion of each deliberative session of the grand jury. In the
absence of the foreperson, a deputy foreperson may act in place of
the foreperson and perform all functions and duties of the foreper-
son.
Independence of the grand jury
30. It is extremely important for you to realize that under the United
States Constitution, the grand jury is independent of the United
States attorney and is not an arm or agent of the Federal Bureau of
Investigation, the Drug Enforcement Administration, the Internal
Revenue Service, or any governmental agency charged with prosecut-
ing a crime. Simply put, as I have already told you, the grand jury is
an independent body and does not belong to any branch of the gov-
ernment.
31. However, as a practical matter, you must work closely with the gov-
ernment attorneys. They will provide you with important service in
helping you to find your way when confronted with complex legal
matters. It is entirely proper that you should receive this assistance.
If past experience is any indication of what to expect in the future,
then you can expect candor, honesty, and good faith in matters pre-
sented by the government attorneys. However, ultimately, you must
depend on your own independent judgment, never becoming an arm
of the United States Attorney’s Office. The government attorneys are
prosecutors. You are not. If the facts suggest that you should not in-
dict, then you should not do so, even in the face of the opposition or
statements of the government attorney. You would violate your oath
if you merely “rubber-stamped” indictments brought before you by
the government representatives.
32. Just as you must maintain your independence in your dealings with
the government attorneys, so should your dealings with the court be
on a formal basis. If you have a question for the court or desire to
make a presentment or return an indictment to the court, you will
assemble in the courtroom for these purposes. Moreover, each juror
is directed to report immediately to the court any attempt by any
person who under any pretense whatsoever addresses or contacts
him or her for the purpose of or with the intent to gain any informa-
tion of any kind concerning the proceedings of the grand jury, or to
influence a juror in any manner or for any purpose.
[Note: It is suggested that grand jurors be provided either with a written copy
of the charge or with the Handbook for Federal Grand Jurors (Judicial Confer-
ence of the United States and Administrative Office of the U.S. Courts
1986).]
[The remainder of the charge should be given only if the grand jury is a spe-
cial grand jury being impaneled pursuant to 18 U.S.C. §§ 3331–3334.]
A. Ascertain
1. the identity of the detainee as the individual being demanded by a
foreign nation; and
2. whether the detainee is represented by counsel (see supra section
1.02: Assignment of counsel or pro se representation). 18 U.S.C.
§ 3006A(b).
B. Inform the detainee NOTE
The Federal
1. of the charge or charges upon which extradition is sought and by Rules of
which foreign nation; Criminal
Procedure are
2. of the right to a public extradition hearing, 18 U.S.C. § 3189; not applicable
3. under what circumstances the United States will pay the costs for to extradition
subpoenaing material witnesses for the detainee’s defense to extra- proceedings.
Fed. R. Crim. P.
dition, 18 U.S.C. § 3191; 1(a)(5)(A).
4. that at the hearing it will be determined:
(a) whether the detainee is charged with a crime or crimes for which
there is a treaty or convention for extradition between the United
States and the demanding country, 18 U.S.C. §§ 3181, 3184; see
also Collins v. Loisel, 259 U.S. 309 (1922);
(b) whether the warrants and documents demanding the prisoner’s
surrender are properly and legally authenticated, 18 U.S.C.
§ 3190; and
(c) whether the commission of the crime alleged is established by
probable cause such as would justify commitment for trial if the
offense had been committed in the United States, 18 U.S.C.
§ 3184.
C. Obtain a waiver of hearing, hold the hearing, or grant a continuance if
necessary (see supra section 1.03: Release or detention pending trial).
D. If a hearing is held, determine whether the detainee is extraditable.
E. If the detainee is found extraditable:
1. Commit the detainee to jail under surrender to the demanding na-
tion, unless “special circumstances” justify his or her release on bail.
Wright v. Henkel, 190 U.S. 40 (1903); Hu Yau-Leung v. Soscia, 649 F.2d
914 (2d Cir. 1981).
2. Notify the Secretary of State by filing a certified copy of your findings
and a transcript of the proceedings.
F. If the detainee is found not extraditable, notify the Secretary of State by
filing an appropriate report certifying to that effect.
The Immigration Act of 1990 changed the naturalization process from a judi-
cial proceeding to an administrative proceeding. The following is a brief out-
line of current naturalization practice. Note that the role of the district court
has been curtailed.
Procedure
1. The applicant for naturalization commences the proceeding by filing an
application for naturalization with the Attorney General.
2. An employee of the Immigration and Naturalization Service (INS) exam-
ines the applicant and determines whether to grant or deny the applica-
tion. The INS employee may invoke the aid of a district court in subpoe-
naing the attendance and testimony of witnesses and the production of
books, papers, and documents. 8 U.S.C. § 1446(b), (d).
3. If the INS denies the application, the applicant may request a hearing
before an immigration officer. 8 U.S.C. § 1447(a).
4. If the immigration officer denies the application, the applicant may seek
de novo review in the federal district court. 8 U.S.C. § 1421(c).
5. If the INS fails to make a determination on the application within 120
days of the applicant’s interview, the applicant may apply to a district
court for a naturalization hearing. The court may determine the matter or
remand the matter to the INS with appropriate instructions. 8 U.S.C.
§ 1447(b).
6. If an application is approved, a district court with jurisdiction under 8
U.S.C. § 1421(b) may administer the oath of allegiance.
Oath of allegiance
The following oath, based on the requirements listed in 8 U.S.C. § 1448(a), is
designed for use with groups of applicants and includes various alternatives
to bearing arms.
Do you solemnly swear [affirm] to support the Constitution of the
United States; to renounce and abjure absolutely and entirely all al-
legiance and fidelity to any foreign prince, potentate, state, or sover-
eignty of which you have previously been a citizen or subject; to sup-
port and defend the Constitution and the laws of the United States
against all enemies, foreign and domestic; to bear true faith and al-
legiance to the same; and to bear arms on behalf of the United
States when required by law [or to perform noncombatant service in
the Armed Forces of the United States when required by law, or to
perform work of national importance under civilian direction when
Sample oaths
The following are suggested oaths for several situations. A statutory cite after
an oath indicates that the oath is taken directly from the statute.
If the person taking an oath or making an affirmation does not under-
stand English, the oath or affirmation should be in a language he or she un-
derstands.
Oath to attorneys
(admission to practice before the court)
I, _______________, do solemnly swear [or affirm] that to the best of my
knowledge and ability I will support and defend the Constitution of the
United States against all enemies, foreign and domestic, and that I will bear
true faith and allegiance to the same; that I take this obligation freely, with-
out any mental reservation or purpose of evasion; and that I will demean
myself as an attorney, proctor, and solicitor of this court uprightly and ac-
cording to law, so help me God.
which office you have been appointed, and will strictly obey all orders of the
court and your superiors as crier [bailiff] during the session now being held,
so help you God?
Oath to defendant
(as to his or her financial ability to employ counsel)
Do you solemnly swear [or affirm] that all of the statements you are about
to make relative to your financial ability to employ counsel will be the truth,
the whole truth, and nothing but the truth, so help you God?
Oath to venirepersons
(to be administered at juror qualification or voir dire)
Do you solemnly swear [or affirm] that you will truthfully answer all ques-
tions that shall be asked of you regarding your qualifications as a juror in
the case now called for trial, so help you God?
Oath to interpreter
(The interpreter’s duties include interpreting the oath to the witness, the
verbatim questions of the court and counsel, and the answers thereto.)
Do you solemnly swear [or affirm] that you will justly, truly, fairly, and im-
partially act as an interpreter in the case now before the court, so help you
God?
[Note: In addition to the initial oath, the Tenth Circuit has stated that “before
the verdict is announced, [the court] should inquire . . . whether the inter-
preter abided by her oath to act strictly as an interpreter and not to partici-
pate in the deliberations. Ideally, the judge should then question the jurors
to the same effect.” United States v. Dempsey, 830 F.2d 1084, 1092 (10th Cir.
1987).]
1. This sample oath is based on one given to an interpreter in New York v. Green, 561
N.Y.S. 2d 130 (N.Y. County Ct. 1990). It is provided as one example of the form for such an
oath.
Oath to master
Do you solemnly swear [or affirm] that you will well and truly hear and de-
termine the facts and true findings according to the evidence, so help you
God?
Oath to witness
Do you solemnly swear [or affirm] that all the testimony you are about to
give in the case now before the court will be the truth, the whole truth, and
nothing but the truth, so help you God?
Oath of allegiance
(naturalization proceedings)
I hereby declare, on oath, that I absolutely and entirely renounce and abjure
all allegiance and fidelity to any foreign prince, potentate, state, or sover-
eignty, of whom or which I have heretofore been a subject or citizen; that I
will support and defend the Constitution and laws of the United States of
America against all enemies, foreign and domestic; that I will bear true faith
and allegiance to the same; that I will bear arms on behalf of the United
States when required by the law; that I will perform noncombatant service
in the Armed Forces of the United States when required by the law; that I
will perform work of national importance under civilian direction when re-
quired by the law; and that I take this obligation freely, without any mental
reservation or purpose of evasion; so help me God.
[8 C.F.R. § 337.1(a)]
[Note: If the petitioner refuses to bear arms, ascertain whether there is “clear
and convincing evidence” that the refusal is based on “religious training and
belief.” If so, the petitioner should be required to take the remainder of the
oath, including at least one of the alternatives to bearing arms. 8 U.S.C.
§ 1448(a). See also 8 C.F.R. § 337.1(b) (may substitute “and solemnly affirm”
for “on oath”).]
affirmation—
in lieu of oath Fed. R. Civ. P. 43(b)
Fed. R. Crim. P. 1(b)(6)
bankruptcy—
authority to administer 11 U.S.C. § 343
deposition—
taken before an officer or other Fed. R. Civ. P. 28(a)
person so appointed
interrogatories—
to answer under oath Fed. R. Civ. P. 33(b)(3)
jurors, alternate—
to take same oath as regular Fed. R. Crim. P. 24(c)(2)(A)
jurors
magistrate judge—
oath of office 28 U.S.C. § 631(g)
authority to administer oaths 28 U.S.C. § 636(a)(2)
master—
may administer oath Fed. R. Civ. P. 53(c)(1)
naturalization proceedings—
oath of allegiance 8 U.S.C. § 1448(a)
public officer—
oath of office 5 U.S.C. § 3331
authority to administer 5 U.S.C. § 2903
reporter—
to take oath 28 U.S.C. § 753(a)
witness—
required to take oath Fed. R. Evid. 60
Finally, the guide highlights some of the issues that often arise prior to an
execution.
The Elements of Case Management: A Pocket Guide for Judges, Second Edition
2006 (22 pp.)
This is a primer for judges on techniques and methods of case management.
present various approaches that judges and parties may choose to follow
when considering and using ADR. The guide identifies areas where there
may be disagreement, describing advantages and disadvantages of various
approaches. It also alerts readers to emerging trends or what are perceived
by many as preferred approaches.
Managing Class Action Litigation: A Pocket Guide for Judges, Third Edition
2010 (55 pp.)
This pocket guide is designed to help federal judges manage the increased
number of class action cases filed in or removed to federal courts as a result
of the Class Action Fairness Act of 2005 (CAFA). It includes a section on de-
termining federal jurisdiction that incorporates case-management practices
and judicial interpretations of CAFA. It also includes suggestions for judicial
review and administration of class settlements, especially regarding the dis-
closure of claims rates and actual payments to class members. This third edi-
tion includes an expanded treatment of the notice and claims processes. Re-
visions are concentrated in Parts III and IV.
The Crime Victims’ Rights Act of 2004 and the Federal Courts
2008 (31 pp.)
The Crime Victims’ Rights Act (CVRA), effective Oct. 30, 2004, and mainly
codified at 18 U.S.C. § 3771, expands the rights of federal crime victims and
the role of federal judges in enforcing those rights. This paper provides an
overview of key provisions of the CVRA; notes on the CVRA’s potential appli-
cation at various stages of criminal proceedings, keyed to relevant sections
of the Benchbook for U.S. District Court Judges; potential issues that may
arise under the CVRA; summaries of cases applying the CVRA; and the text of
§ 3771.
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks, Third
Edition
2012 (36 pp.)
This pamphlet provides an overview of law clerks’ ethical obligations as well
as resources they can consult for further information. It covers topics such as
confidentiality, conflicts of interest, political activities, online activities, and
gifts, and it includes examples that illustrate challenges law clerks may face.
It also has an Ethics Checklist for Federal Judicial Law Clerks, which helps
law clerks identify ethics problems that may arise.
General references
Benchbook for U.S. District Court Judges, Sixth Edition
2013
An ongoing compilation of information that federal district judges have
found useful for immediate bench or chambers reference, the Benchbook
contains sections on such topics as assignment of counsel, taking guilty
pleas, sentencing procedure, standard voir dire questions, and contempt
proceedings. It is prepared under the guidance of experienced district judges
and is produced in loose-leaf format for easy supplementation.
NOTICE OPINIONS
closed hearings, motion to exclude findings of fact and conclusions of law
public, 261 civil cases, 207–09
contempt proceedings, 229, 231, 232– criminal cases, 83
33, 235–36 ORDERS
death penalty sought, 115 closed hearings, 262–63
aggravating factors, 119 commitment to another district (order
departure, 127 of removal), 19, 21
insanity defense, 53–54 contempt proceedings, 232, 237
juvenile transfer hearing, 44 grants of immunity, 151
preliminary injunction, 241 preliminary injunction, 243
preliminary order of forfeiture, 73 revocation of supervision, 143
prior conviction, 129 temporary restraining order, 240
removal of defendant from courtroom, waiver of indictment, 24–25
145 ORGANIZATIONS
sentence, right to appeal, 135–36 pleas of guilty or nolo contendere, 75–
temporary restraining order, 239–41 77
victims of fraud offense, 69, 76 right to counsel, 76
OATHS PEREMPTORY CHALLENGES
affirmation in lieu of, 265 Batson challenges, 85–86, 211–12
allegiance, 259–60, 269–70 civil, 211–12
attorneys, 265 criminal, 85–86
clerks and deputies, 265 death penalty, additional challenges,
criers (bailiffs), 265–66 115
defendants, ability to pay for counsel, PLEAS
266 arraignment, 27–28
depositions, 267 Crime Victims’ Rights Act, 27, 63–64,
grand jury, 267 71, 72, 75–77
foreperson, 267 forfeiture, preliminary order, 73
guides, 266 guilty or nolo contendere, 63–73, 75–
interpreters, 268 77
for deaf jurors, 268 accepting or rejecting a plea, 71–72,
jurors, 268–69 129–30
justices and judges, 270 Alford plea, 71
magistrate judges, 270 competence of defendant to plead,
masters, 269 53, 64–65
public officials, 270 maximum penalty, 68–69, 75–76
reporters, 269 nature of charges, 70–71, 75
stenographers, 269 nolo contendere, 71, 75, 76
table of authorities, 271–72 offenses committed in another
venirepersons, 268 district, 15–16
witnesses, 269 organizations, 75–77
OFFENSE COMMITTED IN ANOTHER plea agreements, 65–67, 69–70, 76
DISTRICT deferring acceptance of, 63, 129–
consent colloquy, 15–16 30
Crime Victims’ Rights Act, 15 duty of defense counsel to com-
preliminary procedure, 15 municate formal offers, 66